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IN THE SUPREME COURT OF UGANDA
HOLDEN AT MENGO
CORAM: ODER, TSEKOOKO, KAROKORA. MULENGA, KANYEIHAMBA, JJ.S.J.
CRIMINAL APPEAL NO. 54 OF 2000
BETWEEN
EUCHU
MICHAEL::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT
AND
UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
(Appeal arising from judgment of the Court of Appeal ( Manyindo D.C.J.,
Kato and Mpagi-Bahigeine JJ.A) at Kampala, in Criminal Appeal
No.97 of 1999,
dated 28th November
2000)
REASONS FOR THE COURT'S DECISION.
Euchu Michael, the
appellant, was tried and convicted by the High Court, for the murder of his
brother. Emolu Robert, the deceased.
He appealed to the Court of Appeal but was
unsuccessful. He brought a second appeal to this Court. On 4.7.02, we dismissed
the appeal
but reserved our reasons for doing so. We now proceed to give
them.
The three grounds of appeal in this Court were that:-
1. The learned Justices of Appeal erred in law in upholding the decision of the Trial Judge when the latter had erred by first concluding in favour of the prosecution before alluding to the defence of alibi.
2. The learned Justices of Appeal erred in law in not applying correctly the principles of a single identifying witness in this case favourably to the Appellant
3. The learned Justices of Appeal erred in law in not applying the principles of major contradictions in favour of the Appellant.
The first ground was not considered in the
Court of Appeal, but because it raised an important legal issue, we allowed that
it be
argued. The subject of complaint in the ground, was the finding as
appears in the judgment of the learned trial judge, "that the prosecution had
proved beyond reasonable doubt that the accused participated in the murder of
Robert Emolu". before consideration of the appellant's defence of alibi. Mr.
Zagyenda, counsel for the appellant, noted that later in the judgment
the
learned trial judge had alluded to the appellant's defence, but argued that the
said allusion was useless since the decision
of his guilt had already been made.
Counsel submitted that the judgment of the trial court had thereby occasioned
injustice, and
that it was an error in law for the Court of Appeal to uphold it.
In reply. Mrs. Kagezi, Principal State Attorney, conceded that
the learned trial
judge appeared to have misdirected himself in that regard, but she contended
that the misdirection did not occasion
any miscarriage of justice, since the
learned trial judge thoroughly considered the defence and gave reasons for
rejecting it.
It is trite that in arriving at its decision in a
criminal trial, the court must consider the evidence as a whole. See
Okethi Okale vs Republic (1965) E.A. 555. It is a gross
misdirection, for a trial court, to decide that an accused person is guilty
after considering the prosecution case alone,
without considering the defence,
and thereby, expressly or by inference, to hold that the defence is consequently
rejected. Such
approach is tantamount to shifting the burden of proof in so far
as the defence is looked at merely to consider if it disproves or
casts doubt on
the prosecution case. It is a cardinal principle, however, that, save for a few
exceptions which are not relevant
here, the burden of proof in a criminal trial
never shifts from the prosecution. That burden entails adducing evidence which
not
only supports the prosecution case, but also disproves the defence case. For
that reason the court has to take the defence into consideration,
before it can
determine that the prosecution has discharged the burden to prove its case and
disprove the defence case, beyond reasonable
doubt. However, in this country
there is no set format in which the judgment must be written. Whether or not a
judgment shows that
before arriving at its decision the trial court took into
consideration the evidence as a whole has to be discerned from the substance
of
the judgment.
In his judgement in the instant case, the learned trial judge first
summarised both the prosecution and the defence evidence. He then
analysed the
evidence in relation to the ingredients of the offence of murder, which he
correctly observed were all in issue by virtue
of the plea of not guilty, and
which had to be proved. On the only contentious issue, namely whether the
appellant participated in
the killing of the deceased, the learned judge
evaluated the evidence of the single identifying witness in detail, and
concluded
that the conditions at the time the deceased was attacked were
conducive to correct identification of the assailant by that witness.
He
thereupon found that the prosecution had proved beyond reasonable doubt, that
the appellant participated in the crime. After that
he reverted to the defence
evidence and gave reasons for rejecting it. It is this sequence that was the
source of criticism as it
gives the impression that the trial judge may have
erred in regard to the burden of proof.
We anxiously considered the criticism because it appeared on surface to have substance. We. however, came to the conclusion that in reality, there was no shifting of the burden of proof. The defence was not rejected simply because the prosecution case had been accepted. The learned trial judge carefully detailed the considerations which led him to conclude that the defence of alibi was false. We were satisfied that the learned trial judge must have had those considerations in mind when he held that the appellant's participation in the crime had been proved beyond reasonable doubt, even though he recorded them after recording the holding. Accordingly, we found that in that regard, the Court of Appeal did not err in upholding the judgment of the trial judge, and that the first ground of appeal had to tail.
The appellant's counsel did not have much to say on the second and third
grounds of appeal. He unreservedly conceded that both courts
below had correctly
considered the principles of lavs relating to :(a) a single identifying witness;
and (b) contradictions in evidence.
His contention was that those principles
were not properly applied to the facts of this case. Under the former ground he
sought to
argue that the light at the time the deceased was attacked was not
enough to enable the witness to identify the assailant. Under
the latter ground,
counsel contended that there was contradiction in the evidence describing the
groaning of the deceased, and he
criticised the absence of any evidence of
investigation and in particular evidence of arrest to explain the delay of about
15 days
in effecting the appellant's arrest.
Under section 6(1)(a) of the Judicature Act, 1996, the appellant had the right to appeal to this Court on a matter of law or mixed law and fact. While counsel attempted to present the second ground of appeal under the guise of a matter of law. the substance of the complaint was on a finding of fact only. This Court has repeatedly held that except in the clearest of cases, it will not re-evaluate evidence in the manner as a first appellate court is required to do. For that reason this court will interfere with concurrent findings of fact by the trial court and the first appellate court only where it is satisfied that a miscarriage of justice has occurred. See Kifamunte Henry vs Uganda, Criminal Appeal No. 10 of 1997 and Bogere Moses and another vs Uganda, Criminal Appeal No. 1 of 1997 both unreported. In the instant case the courts below not only considered the principles applicable to the case correctly, but also respectively evaluated and re-evaluated the evidence properly. We did not find any reason to fault either court on the concurrent finding that the appellant had been correctly identified by the single witness. On that account, the second ground of appeal had to fail.
With regard to the so-called contradiction complained of in the third ground,
we need only say that it was not raised in the first
appeal, and in any ease it
was utterly insignificant and immaterial. On the question of arrest of the
appellant, we do not share
the opinion of the learned Justices of Appeal that in
this ease, evidence of arrest "would not have assisted matters as the
appellant was arrested in another district 15 days after the event" However,
we agree that the absence of that evidence was not fatal to the conviction. We
would only add that the explanation for the
delay in effecting arrest was that
the appellant was not around, a fact he confirmed in his defence. That ground
too had to fail.
It was for those reasons that we dismissed the appeal.
Dated at Mengo the 12th day of December 2002
A.H.O. Oder
Justice the Supreme Court
J. W. N. Tsekooko
Justice of the Supreme Court
A.N. Karokora
Justice of the Supreme Court
J.N. Mulenga
Justice of the Supreme Court
G.W. Kanyeihamba
Justice of the Supreme Court
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