Yesterday an old client called me and referred me to a fellow who according to him has been in the police detention for days now having been accused of culpable homicide. He (the old client) was suggesting to me that according to my write up which I titled ‘ The Accused Must Not Prove His Innocence’ (available on this platform) which he got to read, the accused, his friend who is in police detention should not be made to prove his innocence as he is still presumed innocent by law and it is the general principle as I postulated in my earlier article that the accused should not prove his innocence as it is the duty of his accusers to prove that he did committed the offense he is been accused of.
By this his premise, he asked me to do something about it.
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As it is said that in every general rule there will always be an exception or even exceptions, this is the case here as there is also an exception to this general rule of; ‘he who alleges must prove’ and to this effect, the accused must prove his innocence in some certain circumstances for him to be let off the hook and in this instance where he is to prove his innocence, he is no longer presumed innocent.
Sequel to my last piece where I vehemently argued that it is the legal and a long standing principle of law of evidence that when you are accused you don’t have to prove your innocence to your accusers as you are still very much presumed innocent at law and your accusers have the duty to pin the crime they are accusing you of to you but there’s an exception to this general rule is which called ‘the doctrine of last seen’.
This doctrine, last seen as an exception to the general rule of presumption of innocence, was given flesh in the recent case of Illiyasu v. The State (2015) LPELR -24403 where the court postulated that although it is the general principle of law of evidence that an accused is presumed innocent of the crime he is been accused of thereby making the onus of proof to be on the accusers to prove the accused’s guiltiness but not when he was last seen with the victim of the crime or last seen at the scene of the crime.
This is no doubt a total deviation from the presumption of innocence general rule as the accused if last seen with the victim of the crime or last seen at the crime seen is no longer presumed to be innocent and therefore, the evidential burden of prove, to prove his innocence shifts from the accusers (prosecution) to the accused. In this instance, the circumstances evidence outweighs the burden of proof casted in the prosecution.
It is essential to note that in criminal matters, the legal burden of proof is static as it is always on the prosecution while the evidential burden of proof swings and sways during trial. See generally S.135 and S.139 of the Evidence Act, 2011.
This doctrine of last seen as an exception to the general rule of presumption of innocence simply points to the fact that if an accused was last seen with the victim of the crime or last seen at the venue of the crime then the onus of proof is then on him to either prove his innocence as he is no longer presumed to be innocent at law.
In conclusion, it is the writer’s aim for the readers not to get misled and swallow the general rule of presumption of innocence hook-line and sinker and they should in all diligence also pay attention to exception of this general rule of presumption of innocence which is called ‘doctrine of last seen’, not just this but pay rapt attention to the exception or exceptions to every general rule that they can think of.