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IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: , ODOKI - CJ, ODER - JSC,
TSEKOOKO - JSC,
KAROKORA - JSC, KANYEIHAMBA -
JSC)
CRIMINAL APPEAL NO. 42 OF 2000
BETWEEN
SSEGONJA PAUL:::::::::
:::::::: ::::::::
APPELLANT
AND
UGANDA: :::::::: :::::::: ::::::::
RESPONDENT
(Appeal from a decision of the Court of Appeal in Kampala
(Manyindo - DCJ, Kato and Twinomujuni - JJA.) dated 08-09-2000 in Cr. App.
No.
92 of 1999, arising out of the judgment of the High Court at Masaka
(Akiiki-Kiiza - J) in Criminal Session Case No. 178 of
1998)
REASONS FOR DECISION OF THE COURT
The appellant, Ssegonja Paul, was jointly indicted with another person,
Kirigwajjo Charles, for aggravated robbery, contrary to sections
272 and 273 (2)
of the Penal Code. The particulars of the charge were that on 11th October,
1992, at Kanywa Village, in Masaka District, they robbed John
Ssemwogerere of his motor vehicle Registration No. 640 UAF, Toyota Carina, white
in colour, or." Omax watch and cash
of Shs. 30,000= and at or immediately before
or immediately after the said robbery used a deadly weapon, to wit, a gun and a
knife
on the said John Ssemwogerere. Kirigwajjo was released on bail and could
not be traced when the case came for trial in
the High
Court. The indictment was accordingly amended and only the appellant was
tried on it. He was convicted of simple
robbery, contrary to sections 272 and
273(1) of the Penal Code Act and sentenced to 12 years imprisonment. He was
also ordered
to receive 12 strokes of the cane, to pay compensation of Shs.
100,000=, and to undergo Police supervision for three years after
serving the
sentence of imprisonment.
The prosecution case was that before the incident John Ssemwogerere, who died
after the robbery but before the trial of the appellant,
was a special hire taxi
operator at Nyendo taxi stage in Masaka Municipality. His taxi vehicle was a
white Toyota Carina Registration
No. 640 UAF. On 11th October, 1995,
at 6.00 p.m. he was hired by the appellant and Kirigwajjo to take them and their
luggage to Kitwe Village. On the way,
at Kanywa, the appellant and his colleague
threw a rope around Ssemwogerere's neck and strangled him, leaving him for dead
on the
road. The two robbers then drove off the motor car to Mutukula at the
Ugandan/Tanzanian border, and tried to cross with the motor
car to Tanzania.
They were prevented from doing so by the Police, because it was already
mid-night. They left the motor vehicle at
the border post, went and spent the
night at a nearby lodge. By next morning, the police had become suspicious,
because when they
searched the car they discovered a blood stained knife and a
blood soaked shirt. When the police contacted Masaka Police Station
they were
informed that the car had been reported stolen. The appellant and Kirigwajjo
were arrested and taken to Masaka Police Station,
where the appellant confessed
to the crime. At the trial, the appellant retracted the confession.
Nevertheless, he was convicted
with the consequence we have already referred to.
His appeal to the Court of Appeal failed. He appealed to this Court. We
also dismissed his appeal, reserving the reasons for doing so, which we now
proceed to give.
The Memorandum of appeal, as amended with leave of the court, contained three grounds of appeal as follows:
1. The learned Justices of Appeal erred in law and in fact by finding that the appellant's charge and caution statement had been voluntarily made and properly admitted in evidence. 2. The learned Justices of Appeal erred in law and fact in confirming the decision of the trial court in the absence of any sufficient corroboration. 3. The learned Justices of Appeal erred in law and fact when they failed to re-evaluate the evidence on record and hence reached an erroneous decision
In the Court of Appeal ground one was similar to ground one in this
appeal.
Mr. Henry Kunya, represented the appellant in this appeal. On ground one, the
learned Counsel contended that the appellant's confession
statement was not
freely given, because he had been subjected to torture and threats at Mutukula,
although he was not tortured at
Masaka Police Station. At the trial within a
trial to consider the admissibility of the confession the appellant testified
that he
had sustained injuries on his abdomen and shoulder as a result of the
torture. In his ruling, the learned trial judge observed that
he had seen
visible scars on the appellant. The confession had been recorded three days
after the alleged torture. Consequently,
the learned trial judge considered
whether the effect of the torture had been removed in view of the provisions of
section 26 of
the Evidence Act (Cap. 43) . Secondly, learned
Counsel contended that contrary to the learned trial judge's finding
the
confession statement was not truthful because one Hussein was not referred to in
the evidence of A/IP Mutebi Yakubu (PW5). the
Police Officer who arrested the
appellant, and yet the appellant said in the confession that Hussein, a
Tanzanian who was to buy
the stolen car, went with a Police Officer to the lodge
on the Ugandan side in which the appellant and Kiriggwajjo had slept and
were
arrested by the Police. Another departure from the confession
statement concerns items alleged to have been
found in the car in the morning.
A/IP Niwamanya Ivan (PW6) testified that when the car was searched a toy Pistol,
a sharp knife and
a shirt with blood stains were found in it. But in the
confession statement, the appellant said that at the Police Station, the Police
told him and Kirigwajjo that a toy pistol and a knife had been found in the car.
Where there are discrepancies between a confession
statement and direct evidence
from prosecution witnesses, Mr. Kunya submitted, the confession should not be
accepted as true. He
relied on - RA No. 78064. Cpl. Wasswa and Another
-vs- Vganda, Cr. App. No. 49/99. (SCU) (unreported). Relying on
the same authority, Mr. Kunya also submitted that there was a delay of six days
from the date the appellant
was arrested to the day the confession statement was
recorded from him. Such a delay was criticized in the Cpl. Wasswa Case
(supra).
Mr. Vincent Okwanga, Senior State Attorney, for the respondent supported the
conviction and sentences imposed on the appellant.
He submitted
that the appellant's confession was made voluntarily, and that it was
true. It was corroborated by
the appellant's possession of the motor car so soon
after it had been stolen. The motor vehicle was stolen early in the evening,
and
at 12.00 mid-night the robbers arrived driving it at
Mutukula. In the
circumstances, the doctrine of recent possession of
stolen property applies to what the appellant and his fellow robber did. The
presumption
was that the appellant was the thief not an innocent receiver. The
time involved was too short for him to be an innocent receiver
Mr. Okwonga
contended that the fact of recent possession, which the defence never
challenged at the trial, corroborated the appellant's confession. AIP
Niwamanya Ivan (PW6) and AIP, Mutebi Yakubu (PW5) saw the appellant
and the
stolen car at Mutukula. There was not a second car.
There was sufficient evidence from the two Police Officers that the
appellant
and his companion were arrested with the motor car. The time at which
the appellant intended to cross to Tanzania was suspicious.
PW6 and PW5
testified that after mid-night motor vehicles were not allowed to cross the
border. Yet that is what the appellant and
his companion wanted to do at the
material time.
Regarding the appellant's confession, Mr. Okwanga submitted that it was
recorded almost a week after the appellant had been arrested,
and the appellant
made it voluntarily. It was so found, correctly, by the learned trial
judge.
With regard to the appellant's allegation of torture and the scar seen by the
learned trial judge, Mr. Okwonga contended that it was
impossible for the
appellant to have survived if he had been beaten with sticks by seven Police
Officers for one hour as he claimed.
In the circumstances, Mr. Okwanga
contended, the learned trial judge correctly held that the confession was made
voluntarily and he
rightly relied on it.
In this case, the record shows that the prosecution relied on the appellant's
confession, and his having been found in possession
of a recently stolen motor
car, the basis on which he was convicted. There was no direct evidence from the
person from whom the vehicle
had been robbed, since he died before the
appellant's trial.
In his retracted confession, the appellant gave a detailed account of what
happened. He related how he and Kirigwajjo got a market
from one Hussein of
Mutukula, who wanted a Carina Car and how they planned to get the car from a
taxi driver in Masaka. They then
chose John Ssemwogerere's car. On 11-10-95,
they pretended to hire him ostensibly to take bread for sale. On the way, they
bought
a rope which they put around his neck and disabled him from driving. They
left him for dead and drove the car to Mutukula the same
night. However, they
reached the Ugandan - Tanzanian border too late to cross to the Tanzanian side
where the car was to be sold
to one Hussein. They were not permitted to cross.
Next morning they were suspected to have stolen the car, arrested and
subsequently
escorted to Masaka Police Station, where the appellant made the
confession in a charge and caution statement to an Inspector of Police
at the
time, D/ASP Obuku John Julius. The defence objected to admission of the
confession in evidence on the grounds that it was
not made voluntarily,
because it was preceded by torture and threats on the appellant. A trial
within a trial was
held to determine the admissibility of the confession, after
which the learned trial judge ruled in favour of admission on the ground
that it was voluntarily made.
In his ruling after the trial within a trial, the learned trial judge said:
"Section 25 of the Uganda. Evidence Act, excludes all statements induced by threats and inducement from being admitted. However, section 26 of the same Act, renders a statement after the removal of such threat or inducement relevant and admissible. In the instant case the accused states that he was not assaulted or threatened while making the statement at Masaka. That he made the statement three days after his arrest. That he had been beaten and threatened with death while at Mutukula, if he ever admitted the offence. The prosecution witness denied assaulting or threatening the accused. In the case of - Arikonjero Dan -vs- R. (1962) EACA, the East African Court of Appeal held that:
". .Principle is that if the threat or promise under which the first statement was made still persists when the second statement is made, then the second statement is inadmissible. Only if the time limit between the two statements, the circumstances existing at the time and the caution are such that it can be said that the original threat or inducement has been dissipated can the second statement be admitted as a voluntary statement."
My understanding of the above principle is that if the time between the alleged making of the threat and the making of the statement is long enough so as to remove any threat then such statement is admissible. In the instant case, the accused stated that he made the statement after 3 days from his being- assaulted, and threatened at Mutukula. In my view, the time between the alleged assault and the threats of death was long enough to have such threat or fear dissipated and no longer was operational on him. In any case, after carefully studying the demeanours of the prosecution witnesses on the admissibility, I am impressed by their consistency and steadfastness in denying any threats or assaults to the accused either at Mutukula or Masaka. On the other hand, the accused was hesitant in answering simple questions put to him, relating to the voluntariness of his statement. putting
everything into account, I hold that the statement was made voluntarily."
Regarding the procedure by which the confession statement was recorded, the learned trial judge said this in his ruling:
"During cross-examination, Mr. Ssegirinya, the learned Counsel for the accused followed a line tending to show that there should have been a Luganda version of the accused's statement before it was translated into English; but not only one English version. It appears DC Musitwa was translating from Luganda into English to D/ASP Obuke, who was recording the statement. In the case of Namulobi Hasadi -vs- Uganda, Supreme Court Cr. App. No. 16 of 1991, this method of recording a statement was considered by the Supreme Court, among other points.
My understanding of their Lordships' judgment on this point is that, it agreed with both the trial court and the Court of Appeal, that the method of recording the statement (only English statement recorded) was not fatal; especially considering their Lordships' conclusion on this point when they held on page 9 of their judgment that:
" We find no fault in the manners both the trial Court and Justices of the Court of Appeal dealt with the confession of the appellant."
Actually the Supreme Court upheld the convictions and dismissed the appeal. In the circumstances, I find that the recording of only the English version did not prejudice the accused, as Luganda has been used by D.C. Musiitwa with the accused according to D/ASP Obuku, it was read back to the
accused I therefore, hold it relevant
and admissible."
The appellant was in fact, arrested at Mutukula on 12-10- 95, and the
confession statement was recorded at Masaka on 18-10-95. That
is about six days,
not three, between the date of his arrest and the date of the statement
including the period taken for his transfer
from Mutukula to Masaka Police
Station-
In his judgment, the learned trial judge said:
After holding a trial within a trial, I found that the statement was voluntarily made and it was accordingly admitted in evidence as exhibit PE1. In cases like the present one, only where there has been a retracted or a repudiated confession, the court must, before founding a conviction on it, be fully satisfied in all the circumstances of the case that the confession is true. The same standard and of proof is required in all cases and usually a court will only act on such confession if corroborated in some material particulars by independent evidence accepted by court. But corroboration is not necessary in law and the court may act on a confession alone, if it is fully satisfied after considering all the material points and surround circumstances, that the confession is true. TUWAMOI -VS- UGANDA (1974) EA 84."
The learned trial judge considered relevant circumstances earlier referred to
in this judgment and held that the statement was true.
In its re-evaluation of the evidence, the Court of Appeal said that in their
view, the main issue in the appeal related to the charge
and caution statement
of the appellant: that is whether it was made voluntarily, whether the proper
procedure was followed in recording
it, and whether it was admitted correctly in
evidence. It found like the learned trial judge had done, that the appellant had
not
been assaulted or tortured at Mutukula or at Masaka Police Station. Even if
he had been tortured at Mutukula, the effect of such
torture had dissipated when
he made the statement three days later at Masaka, where he was neither beaten
nor tortured in any way.
There was a gap of three clear days. None of the Police
Officers who had arrested him at Mutukula was present when the appellant
made
the confession statement. He had all the opportunity to refuse to make the
statement. In the circumstances, the Court of Appeal
found that the provisions
of section 2 6 of the Evidence Act, applied to the case.
On the issue concerning the language in which the confession statement was
recorded, the Court of Appeal found that the fact that
the appellant made the
statement in vernacular and it was recorded by a Police Officer in English
through an interpreter, was not
fatal to the prosecution case. The Court
of Appeal applied the decisions of this court in Festo
Androa Asenua -vs- Uganda(supra) and in
Namulodi Hassadi -vs- Uganda (supra) . It held that as
long as the charge and caution statement was read back to the appellant
through a translator
and he signed it, which was done in the instant case, no
miscarriage of justice was occasioned to the appellant.
We agree with the findings of the Court of Appeal that the appellant's
confession statement was correctly admitted in evidence as
having been
voluntarily made and that the procedure followed in recording it did not cause a
failure of justice to the appellant.
Before us, the appellant's learned Counsel argued that the learned trial
judge should not have accepted the confession statement as
true, nor should the
learned Justices of Appeal have agreed with that finding. This is because,
learned Counsel contended, there
were differences in certain particulars between
the confession statement and the evidence from prosecution witness. We make two
comments
in this regard. First, that argument was not made before the Court of
Appeal. Consequently, it does not deserve our consideration.
Secondly, even if
it was made there, the departures in the prosecution evidence from the
appellant's confession were too minor to
affect the substance of the confession
as a true statement. The Courts below accepted the confession as being true,
rightly so in
our view.
We think that on the question of discrepancies between the appellant's
confession and the prosecution evidence, the instant case is
distinguishable
from that of Wasswa and Another -vs- Uganda (supra), in
which this Court found that there were two significant discrepancies
between the contents of the appellant's confession
on the one hand and direct
evidence of prosecution witnesses on the other. The first one was that the only
eye witnesses who gave
evidence at the trial testified that there was only one
gun man who stood on the road in front of the advancing bus and shot at its
tyres once, forcing it to stop. In his confession statement, however, Wasswa
said that the robbers had two guns. The second discrepancy
related to the mode
of Wasswa's travel to Lyantonde, where he was arrested. The effect of Wasswa's
evidence was that he and his accomplices
arrived there on foot, but the evidence
of the LDU Officer who arrested Wasswa was that the latter arrived at Lyantonde
in a car.
In the circumstances of that case, the Court did disagree with the concurrent
findings of the trial court and the Court of Appeal
that Wasswa's confession was
true because it differed with the prosecution evidence in some respects.
Another argument put forward before us by the appellant's Counsel, which was
not made in the Court below, is that there was a delay
in recording the
confession after the appellant had been arrested. This, it is contended,, should
have rendered the confession unreliable.
With respect, we have no hesitation in
saying that this criticism of the Court of Appeal is unjustified. The point was
not raised
before it. In the trial court the point was not raised either by the
defence counsel in his closing address. Consequently, the learned
trial judge
dealt with only one aspect concerning the length of the appellant's stay in
detention after his arrest, before his confession
statement was recorded.
He found that three days had elapsed and that it was sufficient
time for any effect of
the alleged torture to have dissipated if, indeed, he had
been tortured, which the learned trial judge and the learned Justices of
Appeal
concurrently found he was not.
In the circumstances, we saw no merit in the first ground of appeal. It
therefore, failed.
Mr. Kunya took the second and third grounds of appeal together. He submitted
that in the absence of any direct evidence, there ought
to have been
corroboration of the appellant's retracted confession. He criticized
the learned Justices of Appeal for
holding that as the appellant had been found
trying to cross to Tanzania with the recently stolen car, that evidence alone
was not
sufficient to convict him for the crime charge against him. The learned
Counsel contended that there was no evidence that the appellant
was, in fact,
found in possession of the stolen car. According to the evidence of PW5 (AIP
Mutebi Yakubu) he was found in a lodge.
He was not found in the car driving it.
Available evidence gives only a vague description of the people who went with
the car to
the border post. Mr. Okwanga countered this by submitting that the
appellant and his colleague arrived in the stolen car at Mutukula
border post at
midnight after the car had been stolen earlier in the evening. The appellant was
obliged to explain his possession
of the car. He did not. Consequently, there
was a presumption that he was the thief or a guilty receiver of the motor
vehicle. He
could not have been a guilty receiver, because the period was so
short. With regard to possession, the evidence of PW5 and PW6
(AIP
Niwamanya Ivan) proved that the appellant was found in possession
of the stolen car. There was not another
car at the material
time and place. The prosecution evidence that it was the appellant
and his companion who took the car to the border post was not challenged by the
defence at the appellant's trial. The fact that the appellant was in possession
of the car shortly after it had been stolen provided
ample corroboration that he
was the robber. As the Court of Appeal found, the evidence of recent possession
alone was enough to convict
the appellant of the robbery of the car.
The prosecution evidence that the appellant was found in possession of the stolen motor car came from two witnesses. AIP, Niwamanya Ivan (PW6) and Special Police Constable Mutebi Yakubu, both stationed at Mutukula border Police Post at the material time. AIP Niwamanya was the 0/c Mutukula Police Post. As far as it is relevant, his evidence was:
"On 11-10-95, at about midnight I was approached by P/C Omodoi that there is a motor vehicle with two occupants who were seeking permission to cross the border to Tanzania. I advised the occupants to wait for the morning hours and that they should hire a lodge. They went to sleep and left the motor vehicle at the crossing. It was 640 UAF Toyota Carina, white in colour. They went to the lodge though they did not tell us.
On the following morning/day at around 6.00 a.m. they sent one of them, information to come to negotiate with the people so that the motor vehicle could be released early in the morning. This led me to suspect that this motor vehicle was stolen.
Then I detailed Kyaligonza and SPC Ssekondwa and PW4 (sic) to go and check when there people had
Checked to the lodge. They were eventually brought and I drove the motor vehicle to the Police Post to check and we searched it and found one toy pistol, one sharp knife with blood stains and one shirt which was blood stained as well.
I communicated to Masaka to find out whether there was any missing motor vehicle as I suspected these people. Masaka told me that a motor vehicle was reported stolen and that they were coming to collect it. Then I handed over the two suspects to them. That the motor vehicle had been reported stolen the previous night. The suspects were called Ssengonja Paul and Kirigwajjo. Ssegonya is now in court. (Accused identified) .
I handed over the motor vehicle and exhibits to Masaka Police Officers."
The evidence of AIP Mutebi Yakubu was that:
"In 1995, I was at Mutukula border Post on 12-10- 95 at 6.00 a.m. my O/c sent me with two Policemen, to Dembe Lodge (Guest House) at Mutukula and that we arrest two men who had gone to that lodge.
I went with Kayonza Amooti and Okur who are both Police Officers. We went and arrested them and brought them to the Police Station. They were sleeping in the same room, but on different beds. We brought them to the Police Post. I later came to know their names as Ssegonja Paul and Kirigwajjo. I remember the people I arrested, but I can see only one (accused) identified in court). I do not see the second one."
In cross examination, SPC Mutebi said.
"In the lodge I do not remember the number of people, when asked the in
charge about the people who had come and she took me to them.
My 0/c described
the suspects we were going to arrest which I also did to the reception lady at
the lodge's counter. My O/c had
told me to arrest a brown (light skinned)
man and a black man who had just arrived and parked the motor
vehicle."
On the basis of this evidence, the learned trial judge found that the appellant and his colleague were arrested at Mutukula with the stolen motor vehicle. The learned trial court said this:
"Both PW6 and PW7 (sic) , the Police Officers stated that the accused and his colleague were arrested at Mutukula with a stolen vehicle. This vehicle had been recently stolen, just a few hours before the accused and his friend arrived in Mutukula with it. As was held by the Supreme Court in the case of - Bogere Moses and Anor vs-Uganda, Criminal Appeal No. 1 of 1997 (unreported) that:
"It ought to be realized that where evidence of recent possession of stolen property is proved beyond reasonable doubt, it raises a very strong presumption of participation in the stealing, so that if there is no innocent explanation of the possession, the evidence is even stronger and more dependable than the eye witness' evidence of identification . . . ."
This is especially so because invariably the former is independently variable, while the latter depends on the credibility of the eye witness."
There was no reasonable or convincing explanation as to how the accused got the motor vehicle which turned out to be the one stolen from Mr. Ssemwogerere John.
In my opinion a motor vehicle is not a commodity which can change horns easily, e.g. within a few hours. To counter all this, the accused in his unsworn evidence, testified to the effect that on the material day, he had met his brother from Mutukula, presumably in Masaka, made an appointment to go and join him in Mutukula but failed to get him, before he was picked up by the Police on this charge. In my opinion his story is too good to be true. In any case, he looked hesitant while testifying and struck me as someone making up a story to deceive the court.
Putting everything into consideration, I dismiss his story in court as mere lies and I prefer the evidence from the prosecution whose witnesses impressed me as truthful and reliable and his own confession as the truth. I warn the assessors as I warn myself now, to convict on circumstantial evidence, but I am satisfied that in this case, it leaves no room whatsoever as to the accused's participation in stealing of the motor vehicle belonging to the complainant. There is evidence on the record that the accused helped tighten the rope around John Ssemwogerere's neck, but even it was his colleague who did, both had common intention, to commit the crime as they jointly planned it and successfully executed it. All in all I find that the state has proved beyond reasonable doubt the participation of the accused in this crime."
The learned Justices of Appeal, rightly so in our upheld the trial court's finding that the appellant and his companion were found in possession of the complaint's motor vehicle with which they tried to cross into Tanzania so soon after it had been stolen. As the learned Justices of Appeal said, this was a damning evidence against the appellant. They continued:
"On the doctrine of recent possession, the appellant could have been convicted on this evidence alone as he did not give any account of how he came to possess the car."
In our view, that conclusion cannot be faulted.
In the result we agreed with the Court of Appeal that the appellant was
properly convicted of simple robbery, contrary to sections
272 and 273(1) of
the Penal Code Act.
Accordingly, we dismissed this appeal.
Our attention has been drawn to the decision of the Court of Appeal in
Criminal Appeal No. 14 of 2000, Sewankambo Francis and two Others -vs-
Uganda made on 01-06-2001 and to the ruling of the Constitutional
Court by a majority of three to two dated 14-12-2001, in Constitutional
Reference No. 10 of 2000, Kamanwywa Simon -vs-
Uganda. The respective judgment and ruling are to the effect
that corporal punishment is inconsistent with article 24 of the Constitution.
This Court would deal with the issue of corporal punishment if and when it is
properly before it.
Dated at Kampala this 11th day of January 2002.
B.J ODOKI
CHIEF
JUSTICE
A. H. O. ODER
JUSTICE OF THE
SUPREME COURT
J.W.N. TSEKOOKO
JUSTICE OF
THE SUPREME COURT
A. N. KAROKORA
JUSTICE
OF THE SUPREME COURT
G.W.
KANYEIHAMBA
JUSTICE OF THE SUPREME COURT
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