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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODER, TSEKOOKO. KAROKORA. MULENGA. KANYEIHAMBA. J.J.S.C)
CRIMINAL APPEAL NO.10 OF 2001
B E T W E E N
OMIAT JOSEPH
»»»»»»»»»»»»»»APPELLANT
AND
UGANDA
»»»»»»»»»»»»»»»>RESPONDENT
(Appeal from the judgment of the Court of Appeal, (Kato, Engwau and Kitumba,
JJA), dated 27th February, 2001, in Criminal Appeal No. 141 of
1999)
REASONS FOR THE DECISION OF THE COURT
On the 8th July, 2002, we heard and allowed this appeal and
intimated that we would give our reasons on a date to be notified to the
parties.
We now do so.
The appellant, Omiat Joseph, was jointly
indicted with another in the High Court at Soroti, on three counts of murder
contrary to
sections 183 and 184 of the Panel Code Act. At the close of the
prosecution case, the co-accused was acquitted for lack of sufficient
evidence.
The appellant was convicted on all the three counts and sentenced to death on
each count. He unsuccessfully appealed to
the Court of Appeal. Hence this
appeal.
The brief facts of this case are that on the 29 , November 1995, at about
8.00 p.m. at Kaswii village in Soroti District, the house
of one Levi Epou, was
attacked, Levi Epou who died before the trial, made an alarm. His son, Opolot
Simon Peter, PWl, answered the
alarm. He found his father's house on fire. He
saw two bodies lying in the compound. One was of his mother Litu whom he
presumed
to be dead and the other was of Enenau, his brother. At this point,
Opolot got frightened by what he saw. He left the scene and hid
in the bushes
nearby. In the morning, Opolot returned to the scene of the crimes and in
addition to the bodies which he had seen
the previous night he also found the
body of Epou Simon, his own son who had been shot with a gun. Opolot reported
the matter to
the police who visited the scene and later gave permission for the
bodies to be buried. The appellant was alleged to have confessed
to the police
to have committed the murders. At the trial, he repudiated the confession but
after a trial within a trial, the learned
trial judge held that the confession
had been made voluntarily and was admissible. The learned trial judge convicted
the appellant
on the basis of the confession and was upheld by the learned
Justices of Appeal.
The Memorandum of Appeal before this court
contained 5 grounds framed as follows:
1- That the learned Justices of Appeal erred in fact and in law for having upheld a retracted and repudiated charge and caution statement and also for having relied upon the same to confirm the conviction.
2- That the learned Justices of Appeal erred in fact and in law for having speculatively found that the missing record of the trial within a trial ruling in the High Court was in favour of the prosecution and that such omission did not prejudice the defence case.
3- That the learned Justices of Appeal erred in fact and in law for having upheld the trial judge's finding that the charge and caution statement was corroborated by the evidence of PWl at the trial.
4- That the learned Justices of Appeal did not adequately evaluate side by side the Prosecution and Defence Evidence and thus came to a wrong conclusion.
Mr. Ddamulira, counsel for the appellant abandoned ground 2. On ground 1 of appeal, he contended that the appellant was unable to write or read and that it was only the police who made up and recorded his alleged charge and caution statement which was never read back to him so that he could verify its accuracy Consequently, the statement should not have been admitted as his own or as having been made voluntarily. Counsel further contended that the appellant who gave evidence on oath denied that he put his own thumb print on the charge and caution statement. The appellants claim that the statement had not been read back to him, was corroborated by D/P, Opus, PW2, the police officer who recorded the statement. Mr. Ddamulira submitted that failure to prove that the charge and caution statement was that of the appellant combined with the failure to read back his alleged statement to him were fatal to the prosecution's case. Learned counsel cited the case of Festo Androa Asenua and Kakooza Joseph Devor v. Uganda, Cr. Appeal No. 1 of 1998), (S.C.) (unreported), in support of his submissions.
On ground 3, Mr. Ddamulira contended that the Justices of Appeal erred in law
and fact to have held that the ruling of the trial judge
in the trial within a
trial was in favour of the prosecution when in fact both the ruling, its reasons
and the proceedings from which
it came were missing from the record of
proceedings. Counsel contended that the holding of the learned Justices of
Appeal was based
on mere speculation and such a holding was prejudicial to the
interests of the appellant.
On ground 4, Mr. Ddamulira submitted that
the evidence of PWl needed corroboration which had not been shown by the
prosecution's witnesses
or evidence and therefore the courts below were wrong to
accept PW's evidence itself as corroborative of the appellant's alleged
charge
and caution statement. Counsel further submitted that the courts below ignored
the appellant's defence of alibi.
For the respondent, Ms. Khisa, Principal State Attorney, supported the
conviction. She contended that the conviction was amply justified
because of the
admission by the appellant in his charge and caution statement that he committed
the murders. The omission to include
in the record the ruling on the trial
within a trial was not fatal to the prosecution's case because it was clear from
the judgment
of the Court of Appeal that the Justices of that court accepted the
fact that the learned trial judge had found for the prosecution
as evidenced by
his reliance in his judgment on the retracted confession.
Ms. Khisa
next dealt with the contention for the appellant that the alleged charge and
caution statement was not corroborated. She
contended that in this respect the
trial judge warned himself of the need for corroboration. In any event, the
Court of Appeal found
some corroboration in the evidence of PWl relating to
gunshots and his vivid description of what had happened at the scene of the
crime. With regard to the defence of alibi, it was the contention of counsel for
the respondent, that that defence had not been raised
by the appellant in the
courts below. Counsel argued further that even if that defence had been raised,
it would not have made any
difference to the conviction of the appellant since
it related to periods of time other than that in which the murders were
committed.
Having perused the records of proceedings in the courts
below and heard counsel for both sides, we were convinced that this case was
not
as straight forward or simple as the prosecution made it out to be. In our view,
the failure by the police officer who recorded
the charge and caution statement
of the appellant to read it back to him was a serious omission. It deprived the
appellant of the
right to know exactly what he is alleged to have said and to
correct it, if need arose. Had the learned Justices of Appeal reevaluated
this
evidence, it is possible that they would have come to the conclusion that
probably the appellant was telling the truth. In
any event, the revaluation by
the learned Justices of Appeal would have affected the weight of the
prosecution's evidence and created
a reasonable doubt in favour of the
appellant. Counsel for the appellants in the Court of Appeal submitted that the
trial judge
was wrong to find that the omission by PW2 to indicate on the
statements, exhibits P1 and P2, that they had been read over to the
appellants
was a mere irregularity. The Court of Appeal in their judgment held that,
"The learned trial judge found that the appellant's confession though retracted, was voluntary and True, as PWl who was not an investigating officer could not, therefore, make up a statement of the facts relating to the commission of the offence. He observed that the Ateso statement, exhibit P1, bears no thumb print of the appellant. He concluded that failure to indicate on the statement that it had been read back to the appellant was a mere irregularity. We agree with the learned trial judge's statement of the law and his findings on the facts."
With the greatest respect, we think that the learned Justices of Appeal erred
in agreeing with the findings of the trial judge on
this matter. It is a
cardinal principle of our criminal law, that an accused person who confesses to
a crime must do so voluntarily
and the confession must be read back to him or
her in a language he or she understands. The admission by the police that the
charge
and caution statement was not read back to the appellant after it had
been recorded and his unshaken story of the events that preceded
his arrest
created such reasonable doubt in the prosecution's case as to render the
appellant's conviction unsafe to uphold. Once
the appellants" alleged charge and
caution statement was faulted as it was, there was nothing else against him for
which he could
properly be convicted of the murders which occurred.
We were also concerned that the Court of Appeal did not consider the omission
of the record of the trial within a trial to be material
or important for their
findings and decision. In fact, the learned Justices of Appeal dealt with that
omission as an afterthought
and obiter dictum. In our view, the matter of the
retracted confession and the trial within a trial in the High Court were crucial
in the determination of the appeal and ought to have constituted an essential
issue for determination by the Court of Appeal. An
appellant is entitled to have
at his or her disposal, the entire record of proceedings under which his or her
conviction is founded.
Only on this basis is the appellant availed all the
opportunities to challenge every step and aspect leading to his or her
conviction
and sentence. Moreover, in the absence of such an important ruling,
appellate courts would be unable to satisfy themselves that the
trial court was
correct in reaching its decision about the trial within a trial.
It
is for these reasons that we allowed the appeal, quashed the conviction and
ordered the appellant to be released unless held on
some other lawful
ground.
Dated at Mengo this 12th Day of December 2002.
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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