|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Uganda: Supreme Court |
[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]
THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
CORAM: ODOKI, G.J, TSEKOOKO, KAROKORA, MULENGA KANYEIHAMBA,
JJ.S.C.)
CRIMINAL APPEAL NO.39 OF 2000
BETWEEN
NASHABA PADDY
»»»»»»»APPELLANT
AND
UGANDA
»»»»»»»»»»»RESPONDENT
(Appeal from the judgment of the Court of Appeal at Kampala (Kato. Mpagi-
Bahigeine, Berko, J.J.A), dated 9th August, 2000, in
Criminal Appeal No 59 of 1996)
JUDGMENT OF THE COURT
The background to this appeal is briefly as follows: The appellant and two
other persons, namely Sergeant Alfred Beyaka and Peter
Kanyarwene, were suspects
in the commission of two aggravated robberies in the Bushenyi District, using a
gun. One of the robberies
was committed at the home of one Bona Byansi and the
other at the home of one John Ibara, PW5. The two robberies appear to have been
committed and investigated in the same period of time but the prosecution
decided to proceed with the trial of the robbery committed
at the home of Bona
Byansi first. The three suspects were indicted and tried for that robbery,
Alfred Beyaka was convicted and sentenced
to death but both the appellant and
Peter Kanyarwene were acquitted of that particular robbery. This was in 1994. On
4.9. 1995, the
same three suspects were tried on an indictment charging them
with the aggravated robbery that had taken place at the home of John
Ibara,
contrary to ss. 272 and 273 (2) of the Penal Code . The appellant was named in
the indictment as A2, Alfred Beyaka as A1,
and Peter Kanyarwene as A3. At the
trial, A1 who by then was a convict and still in custody, was not produced in
court. Peter Kanyarwene
was acquitted again. The appellant was convicted and
sentenced to death. His appeal to the Court of Appeal was dismissed. He has
now
appealed to this court. It will be apparent from our judgment that some of the
evidence in the two robberies overlapped.
The facts in this case may
be summarised as follows: It was the prosecution's case that the appellant
participated in a robbery committed
in the night of 12.7.91 at the home of John
Ibara, in Kitagata village, Kyamate in Bushenyi District and a number of goods
including
two hurricane lamps were taken by the robbers from the home.. Some
five days after that robbery, the appellant sold a hurricane lamp
to one, Eugene
Kagezi, PW4, a bar operator at Mutale trading centre. Shortly after the sale,
the appellant was arrested by William
Muhangi, PW3, a local administration
police sergeant. The lamp was subsequently identified at the trial by the
complainant, Ibara,
PW5, as one of the goods stolen from his home during the
robbery and Kagezi, PW4, identified the appellant as the person who had
sold her
that same lamp. The appellant was first taken and detained at Mutale Gomborora
Headquarters but was later transferred to
Bushenyi Police Station.
Sergeant Muhangi removed the lamp from the Kagezi bar and the lamp was later
produced in court as Exh. 5. While in police custody,
the appellant gave to
Assistant Inspector of Police Mirembe, PW2, then a station sergeant,
incriminating information affecting himself
and two accomplices who
included Sgt.. Beyaka. He also told the sergeant that he could
lead the police to a place where Beyaka was hiding.
A few days later
and after securing a motor vehicle for transport, Sergeant Mirembe accompanied
by police officer Kibesigire and Bona
Byansi, the complainant in the first
robbery case, went with the appellant to Rweshenyi village. On their way to that
village, they
came across Peter Kanyarwene, A3, who started running away but was
pursued, and arrested. Peter Kanyarwene, with the appellant, led
the police
group to Kanyarvvene's house where Sgt. Beyaka was found hiding in a bed. When
interrogated, Sgt. Beyaka admitted having
possession of a gun and according to
the appellant Beyaka had also participated in the robbery at Ibara's home. Sgt.
Beyaka led the
group to a spot in a banana plantation near his own house where
an army uniform, a gun and ammunition were found.
On 31.7.91, the
appellant was taken to a Magistrate Grade II, Amudini Mugerwa, PWl, to whom he
made an extra-judicial statement. In
the extra-judicial statement, the appellant
confessed that he, together with Sgt. Beyaka and one Muhanguzi, had robbed from
Ibara's
home and taken away diverse items which he proceeded to enumerate in the
statement. At the trial, the appellant retracted the extra-judicial
statement
but after a trial - within - a trial, the learned judge held it to be admissible
and it was received in evidence as Exh.
P6. The trial proceeded, and on the
basis of the extra-judicial statement, the stolen lamp as evidence of
possession of recently
stolen property and the
discovery' of the gun, the appellant was convicted of aggravated robbery
and sentenced to death. He appealed to the Court of Appeal which
dismissed the appeal. The appeal to this court is based on five grounds
framed as follows.
1- The learned Justices of Appeal erred in law when they upheld the trial judge's decision to admit the appellant's extra-judicial statement.
2- The learned Justices of Appeal made an error of mixed law and fact when they upheld the conviction based on circumstantial evidence that fell short of the legal test. 3- The learned Justices of Appeal erred in law to uphold the trial judge's conviction when the evidence on record was full of contradictions and inconsistencies. 4- The learned Justices of Appeal made an error of mixed law and fact when they rejected the defence of alibi by the appellant. 5- The learned Justices of Appeal erred in law in Jailing to reevaluate the evidence on record.
Mr. Tayebwa, counsel for the appellant, argued grounds 1,4 and 5 separately
and grounds 2 and 3 jointly.
On ground I, Mr. Tayebwa contended that the recording of Exh.6 was not done
in compliance with the rules governing the recording of
extra-judicial
statements. Counsel contended that the appellant was not informed of the charge
against him before he made the statement,
and that the statement was not
recorded in the language in which the appellant spoke. Counsel further contended
that the holding
by both the trial judge and the Court of Appeal that the
appellant's extra - judicial statement was made voluntarily was not supported
by
the evidence. Counsel pointed out the appellant's complaint that for two weeks
prior to the making of the statement, he had been
in police custody, subjected
to torture and eventually, induced by Mirembe to make that statement. It was
further contended by Mr.
Tayebwa that the trial judge had not given any reason
for disbelieving the appellant's evidence. Counsel for the appellant criticised
the Court of Appeal for failing to reevaluate the material evidence on the
matter before upholding the decision of the trial court
on admissibility of the
extra-judicial statement.
Mr. Elem- Ogwal, Principal State Attorney
and counsel for the respondent, intimated that he would only argue ground 1 of
appeal. He
contended that the issues in the other grounds advanced for the
appellant had not been raised in the Court of Appeal at all and therefore
could
not be argued in this Court as a second appellate court, He invited this court
to ignore those other grounds. In support of
his submissions, he cited the case
of Festo Androa Asenua & Another v. Uganda, Crim.
Appeal No. 1/98 (SC.), (unreported), in which this court commented adversely on
a ground of appeal which in substance was the
same as one that had been raised
in the Court of Appeal but had been abandoned. In our judgment in that case, we
said,
"As we have already pointed out, grounds of appeal are objections to
the decision from which an appeal arises. It would clearly be
unfair to
criticise the Court of Appeal on the basis that the Court failed to consider
inconsistencies, discrepancies and contradictions,
when such matters were not
argued before nor drawn to the attention of the Court of Appeal"
We do not find that the principle underlying our statement in the
Festo Androa Asenua's case (supra), is applicable to the
instant case. Grounds 2 to 5 of this appeal are basically objections or
complaints focussing on
the inadequacy of the prosecution case. In our view,
that was the purport in grounds (ii) and (iii) of the Memorandum of Appeal in
the Court of Appeal where it was contended that the doctrine of recent
possession of stolen property was inapplicable to the facts
of the case and that
the evidence had not been evaluated as a whole. Therefore, the contention that
grounds 2 and 5 raise issues
which were not before the Court of Appeal is
untenable. In our view, the Festo Andoroa Asenua case
(supra), is clearly distinguishable from this case. In the former case, the
issue of contradictions and discrepancies in evidence
had been raised and then
had been expressly withdrawn from the consideration and determination of the
Court of Appeal.
In any event, on ground 1 of appeal, Mr. Elem - Ogwal conceded that the Grade
II Magistrate had erred in causing the extra-judicial
statement to be recorded
by the court clerk instead of himself, and in failing to record that statement
in the Runyankore language
which the appellant chose to speak. Learned counsel
however contended that these minor errors did not occasion a miscarriage of
justice
in view of the appellant's testimony at the trial, that what was
recorded was what he had said. He further submitted and we agree
that the Court
of Appeal had sufficiently considered the issue of the extra-judicial statement
before upholding the findings of the
trial judge who believed the testimony of
Mirembe that the appellant was not tortured or otherwise induced to make the
statement.
Section 24 of the Evidence Act does not prohibit the procedure adopted by the Magistrate in recording the extra-judicial statement in this case. In our opinion, it is not a material departure from the guidelines contained in the circular of the Chief Justice dated 2nd February, 1973 for a magistrate to ask the court clerk whose handwriting is apparently better than his own to record the statement under the supervision of the magistrate. The only omission was that the magistrate did not certify the recorded statement. However, we are of the view that the omission was cured by the confirmation of the appellant that the recording was accurate.
In the Court of Appeal, ground (I) combined the issues of admissibility and credibility. The ground complained that "the learned trial judge erred in law and fact in accepting and believing the extra- judicial statement made by the appellant and thus came to a wrong decision." After summarising the arguments of counsel on this ground, the learned Justices of Appeal said,
"We agree that the Chief Justice's rules for the guidance of magistrates in recording confessions should be followed with punctiliousness and care, but we think that a contravention of the guidelines in recording would not render the record bad if the confession is found to be voluntary. The statement in question was recorded in the court language which language the appellant understands since he is a sixth former and was using English in court himself. These are not rules of law but practice for guidance. If a statement has been made in circumstances not in accordance with the Rules, in law that statement is not made inadmissible if it is a voluntary statement The court however, in its discretion, can refuse to admit it if it thinks that there had been a serious breach of the Rules. The test of admissibility of the statement is its voluntariness. R.v. May Prayer (1972) 56 Crim. App. R. 151: R. v. May (1952) 36 Crim. App. R. 91 at 93. We think that the learned judge was correct in admitting the statement in evidence. We are fortified in our findings by section 29A of the Evidence Act which states: '29A Notwithstanding the provisions of section 24 and 25 of this Act, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved,' This ground of appeal fails."
We think that the requirement that such
statements as the appellant made should be recorded in the language the suspect
chooses to
use in making it, is to ensure that what is produced in evidence is
the correct reflection of the statement of the maker so as to
avoid or minimize
possible distortions, mistakes and or disputes resulting from the translation
which the court would not be in a
position to verify. It is our view however
that, since in this case the appellant agreed in court that what was recorded is
what
he said, such distortations, mistakes or disputes do not
arise.
In this case, we are unable to fault the conclusion by both
the trial Court and the Court of Appeal that the statement was made voluntarily.
It is noteworthy that the learned trial judge took the initiative to conduct a
trial-within - a trial despite defence counsel's statement
that the defence did
not object to the confession. The appellant did not dispute the fact that he
made the statement. On the contrary,
he confirmed that what the statement
contained is what he had told the magistrate. Consequently, ground 1 of this
appeal fails.
Ground 2 and 3 which were argued together by the appellant's counsel constitute an objection to the effect that the conviction ought not to stand because the prosecution evidence did not amount to adequate proof It was the contention of the appellant's counsel that the evidence upon which the appellant was convicted and sentenced to death was of such circumstantial nature as not to satisfy the requirements of proof beyond reasonable doubt in a criminal trial. In support of his submissions, counsel relied on the cases of Simon Musoke v. R (1958), E.A. 715, Charles Bogere v. Uganda, Cr. App. No. 10/98, (SC.) (unreported), and Abasi Ssali & Another v. Uganda Cr. App. No. 7.98, (SC.), (unreported).
Mr. Tayebwa, argued that for a court to convict on circumstantial evidence,
the evidence must be such as leaves nothing to chance.
The circumstances must
not be such as can be explained on evidence other than that the accused is
guilty of the offence as charged.
Counsel cited the case of Simon Musoke
v. R. (supra) In support of his submission he also contended that
the evidence relating to the stolen hurricane lamp and its recovery was
full of
contradictions and discrepancies. He contended that during the recovery of the
stolen lamp from Eugene Kagezi, neither John
Ibara, PW5, nor his son were
present to identify the lamp as theirs. Appellant's counsel also contended that
Kagezi's evidence contradicted
that of the complainant, John Ibara. Whereas
Kagezi testified that the lamp she bought from the appellant was a big lamp and
she
did not describe its colour, Ibara said that he recognised it as his because
it was green and blue in colour. There was also the
inexplicable evidence of
Ibara that some of the property stolen from his home were found in the houses of
two of the accused persons.
According to Ibara, his second lamp which had also
been taken during the robbery was recovered from Beyaka's house. Ibara also
claimed that a pair of boots and bed sheets were recovered from Nashaba's house.
However, the police evidence was to the effect that
none of these items or
indeed any stolen property was found in A2's house. We note that these
contradictions and discrepancies relating
to the discovery of the stolen
property do not affect the facts and evidence which the trial court found and
the Court of Appeal
confirmed to be material. In any event, the learned trial
judge adequately considered and
resolved these contradictions, when he
said,
"There were however some discrepancies and contradictions in the prosecution's case. PW5 testified that he recovered a pair of
boots and bed sheets from A2 But PW2 explained that he
never recovered any stolen property from A2. The law regarding inconsistencies is that grave ones in the prosecution case unless satisfactorily explained will result in the evidence being rejected.
The court will ignore minor inconsistencies Uganda v.
Sembatya, (1974) HCB 278. They have no effect on the main substance of the prosecution case."
In his confession which we have confirmed to have been voluntary' and admissible, the appellant said,
"I am (sic.) and Sergeant Beyaka came to Mutera village with a gun. Reaching the village from Kitagata, he talked to me and proposed a plan that we should start dealing with the gun. We went to Kitagata at the home of one Ibara. We were three. We were Beyaka, Muhanguzi and I was the third We had a gun. We arrived at the scene at around 1.00 a.m We asked him to open but he did not open. We forced his porters to open for us. They opened the front area of the house and the three of us entered We arrested these porters and locked them in one of the bedrooms. We looked for Ibara. He was not around We picked Shs.30,000 (Thirty Thousand shillings) from the table from the bedroom, the six foot mattresses, a spraying pump, one pair of sheets. We then left and put our loot at Fred Beyaka's home. While at Fred Beyaka's home, we shared the thirty thousand shillings equally. After four days, I was arrested at Mutara village while I had gone to see Beyaka Fred I found he had left for Kampala. That is all I can state."
The appellant's own evidence of what happened at Ibara's home including the shooting with a gun is amply corroborated by the evidence of PW5, the complainant. Following the information given by the appellant, the police were able to carry out a search and arrest both Kanyarwene and Beyaka, A3 and A1, respectively. Eventually, the three suspects were charged but only the appellant and Kanyarvvene were tried for the robbery at Ibara's home. As a result of the information given and the search carried out by the police with the co-operation of both the appellant and Beyaka, an army uniform , a gun and three magazines of ammunition were found..
One of the household items robbed from Ibara's home was a hurricane lamp which the appellant denied ever having handled or sold. Yet, the evidence of Eugene Kagezi, PW4, is emphatic that the appellant sold the lamp to her. She testified that:
"I still remember the lamp I bought Exhibit I. I remember the person who sold the lamp to me. I can identify him if I see him. That person is in the court"
Kagezi then pointed at the appellant who was co-accused in the court. The appellant denied having anything to do with it but his evidence was rejected. The evidence which the court believed put the appellant in the category of the guilty under the doctrine of possession of recently stolen property without a plausible explanation. The Court of Appeal considered this part of the evidence and observed ,
*The only evidence against the appellant being in possession of a lamp
which had been recently stolen had to be considered a long
with the important
time factor and the appellant's failure to explain its origin , when on the
other hand , Mr. Ibara had satisfied
the court that it was among the properties
stolen from his house. There was therefore ample evidence that the appellant
took part
in the robbery. We do not doubt that a common participation has been
established We have no hesitation in affirming (sic.) his
conviction."
We are satisfied that the learned Justices of Appeal properly made a correct
decision. Therefore grounds 2,3, and 5 must fail. With
regard to ground 4,
counsel for the appellant argued that the defence of alibi by his client had not
been properly considered and
that it was wrong on the part of the Court of
Appeal to have simply agreed with the findings of the trial judge. Mr. Elem -
Ogwal
for the respondent, supported the findings of both the trial court and the
Court of Appeal on the alibi. He contended that the trial
judge correctly
addressed his mind to the defence of alibi and how the prosecution should deal
with it.
The trial judge said,
"The position of the law where an accused person puts up an alibi to a criminal charge. (sic) He does not thereby have the burden to prove the same. But the burden lies on prosecution to adduce evidence to destroy the alibi"
In our opinion, the learned judge's statement is
in conformity with the decisions we recently made regarding the defence of alibi
in the cases of Kifamute Henry V. Uganda Cr. App. No. 10/97 (SC.),
(unreported), and Abasi Sali & Another vs. Uganda (SC.) Cr.
App. No. 7/1998 (SC.), (unreported). The Court of Appeal was correct to confirm
the findings and decision of the High Court
on the matter. In consequence,
ground 4 of the appeal fails.
As all the grounds of appeal have
failed, this appeal is dismissed.
DATED AT MENGO, THIS 15th DAY OF APRIL 2002.
B.J. ODOKI
CHIEF JUSTICE
J.W. TSEKOOKO JUSTICE OF
THE SUPREME COURT
N. KAROKORA
JUSTICE OF THE SUPREME COURT
J.N.
MULENGA
JUSTICE OF THE SUPREME COURT
G. W. KANYEIHAMBA
JUSTICE OF
THE SUPREME COURT
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/ug/cases/UGSC/2002/17.html
.PDF of original document
.RTF of original document