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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
CRIMINAL APPEAL NO.24/2001
(CORAM: ODOKI, CJ., TSEKOOKO, KAROKORA KANYEIHAMBA. KATO, JJSC).
OKETCH DAVID:::::::::::::::::::::::::::::::::::::::::::::
APPELLANT
VERSUS
UGANDA
:::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
(Appeal arising from the judgment of the Court of Appeal at Kampala
(L.E.M. Mukasa-Kikonyogo, DCJ, G.M. Okello, A, S.G. Engwau, JJA)
dated 11.05/2001 in Criminal Appeal No. 109 of 1999)
REASONS FOR THE DECISION OF THE COURT
The appellant, David Oketch, was indicted before the High Court on two counts of aggravated robbery and murder contrary to sections 272, 273(2), 183 and 184 of the Penal Code Act, respectively. He was convicted on both counts and sentenced to death. He appealed to the Court of Appeal which dismissed the appeal. He made a second appeal to this court. On 2/12/2002 we dismissed the appeal but reserved our reasons which we give now.
The brief facts of the case which were accepted by the trial court and
confirmed by the Court of Appeal are as follows. On the night
of 3/8/93 the
deceased, Joseph Olweny and his family were sleeping at his home at Namwendia
village in the District of Tororo. Among
the members of the family was his wife
Sarah Amali, (PW2). There was an attack on the family by robbers. One of the
attackers was
a half brother of the deceased called Godfrey Onyango, who called
the deceased out falsely alleging that the deceased's cattle had
strayed to a
neighbour's garden and were destroying his crops and that the deceased should go
and collect them. As soon as the deceased
opened the door, Onyango entered the
house followed by two other attackers. The deceased and his wife were assaulted.
The deceased
was dragged out of the house and shot dead. In the process a number
of deceased's property including a bicycle were carried away
by the robbers. On
26/8/93 the appellant was arrested at Namulumba village in Iganga district with
the deceased's bicycle which had
been robbed on the night of 3/8/93. On 31/8/93
the appellant made a confessional statement to a Magistrate grade II at Tororo.
In
that statement he admitted having taken part in the murder of Olweny and the
robbery of his property. He was charged with four other
suspects, three of whom
were acquitted by the trial court, but he and Onyango were convicted and they
appealed to the Court of Appeal
which dismissed his appeal but found Onyango a
minor and his sentence was set aside.
At his trial the appellant denied
ever having committed the two offences. He pleaded that on the night in
question, he was at his
home. Although he admitted having confessed to the
commission of the offences, he was only told to admit as he was beaten at the
time he was being arrested. He denied having been arrested in possession of any
bicycle.
The trial judge rejected the story as told by the appellant but accepted that
told by the prosecution and convicted him.
The following three grounds of appeal were presented before us, namely:
"1. The learned Justices of the Court of Appeal erred in law and in fact when they upheld the conclusion of the learned trial judge that the confession of the appellant was voluntary after considering only the element of threat but ignoring to specifically consider the element of inducement.
2. The learned Justices of the Court of Appeal erred in law and fact when they concluded that they had specifically considered the element of inducement, whereas not, and thereby upholding the conclusion of the lower court that the confession of the appellant was voluntary.
3, The learned justices of the Court of Appeal erred in law and in Fact when, as a first appellate court, they failed to re- evaluate the evidence on record touching on the serious inconsistencies between the alleged confession of the appellant and the prosecution evidence; on the one hand; and the criminal liability of the appellant, thereby upholding the conviction."
Learned counsel for the appellant, Ms. Nakabuye Charity, argued grounds one
and two together and ground three separately. Counsel's
submission on the first
two grounds had two aspects. In the first aspect the counsel argued that the
appellant's confession upon
which his convictions were founded was improperly
admitted by the trial court as it was obtained through an inducement. It was
counsel's
view that the words addressed to the appellant by one of the policemen
that the appellant "had suffered for nothing" amounted to
an inducement which
influenced his making the confession. Another aspect of Ms. Nakabuye's argument
was that the magistrate who recorded
appellant's statement was wrong to tell the
appellant "you are now free to say what you know about this case". According to
her such
a remark also induced the appellant to make the confession.
On
the other hand, Principal State Attorney Mr. Michael Elubu, for the State
contended that there was no evidence to show that the
appellant had been induced
in any way to make the confession. It was the counsel's view that the remarks
made by the policeman and
the Magistrate did not amount to an
inducement.
We would like to state from the very start that these two grounds of appeal were strongly argued in the Court of Appeal under the second ground of appeal in that court and their Lordships resolved the issue in the following way:
"Like the learned trial judge, we are of the view that 1st appellant had made his confession voluntarily with great details of an insider. Though the trial judge had not considered specifically the element of inducement, had he done so as we have done, he would have come to the same conclusion. We agree also with Mr. Byabakama that the Magistrate used wrong words during caution but we think that did not render the confession inadmissible. We are of the opinion that neither the two policemen who escorted the 1st appellant nor Mr. Dasan Openy ever induced the 1st appellant with anything before naming all the culprits".
We do not fault that finding. In our view, the remarks made by one of the
policemen to the effect that the police knew that the appellant
had suffered for
nothing did not amount to an inducement within the meaning of section 25 of the
Evidence Act. There is nothing on
the record suggesting that those words
influenced the appellant in admitting that he had taken part in the commission
of the two
offences. As for the words used by the magistrate, who recorded
appellant's confession to the effect that the appellant was "free
to say what he
knew about the case", we consider this to have been an irregularity which did
not affect the admissibility and voluntariness
of the confession. We are
satisfied that the two courts below correctly held that the confession was
admissible. We find no merit
in grounds one and two which must
fail.
On the third ground of the appeal, Ms. Nakabuye complained that
there were inconsistencies in the prosecution case which should have
been
resolved in favour of the appellant. She singled out the issue of when the
bicycle was removed from the home of the deceased.
According to her, the wife of
the deceased, Sarah Amali, stated that the bicycle was removed before her
husband was murdered but
according to Cirilo Ochwo, PW5, the removal was after
the deceased had been killed. She was of the view that such inconsistency
affected
the quality of the evidence of identification of the appellant by
Amali.
On his part, Mr. Elubu, submitted that there was no
inconsistency and even if it was there, it was immaterial what time the bicycle
was removed. He pointed out that an allowance should be given for the lapse of
time, between when the offence was committed in 1993
and the time the witnesses
testified in 1997.
It is trite law that a contradiction or
inconsistency in the prosecution case which is major and goes to the root of the
case should
be resolved in favour of the accused; but where it is minor and was
not a deliberate lie intended to deceive the court, it should
be ignored: (See:
Alfred Tarjar -V- Uganda, Criminal Appeal No. 167 of 1969 EACA (unreported). In
the instant case the inconsistencies
which are being complained of are to be
found in the testimonies of Sarah Amali (PW2) and Cirilo Ochwo (PW5).
Sarah Amali (PW2) stated:
"They pulled out a bicycle and rolled it outside. I can't remember which of the assailants took the bicycle because one of them was in the process of cutting me with a sword".
Cirilo testified as follows:
"After sounding the drum we went to the house of the deceased and found his bicycle, 4 pairs of trousers and 4 gomesis and two bed sheets missing."
We see no inconsistency in these two statements, if anything the testimonies
were complementing each other. PW2 is only saying that
the robbers took the
bicycle outside and PW5 is saying he found it missing. Even if the two
statements were contradictory, which
is not the case, still the contradiction
would have been minor since it is immaterial whether the bicycle was taken after
or before
the deceased was killed. What is important is that the deceased was
killed and in the process his bicycle was robbed. The third
ground must also
fail.
It was for those reasons that we dismissed the appeal.
Dated at Mengo this 17th day of April 2003.
B. Odoki
Chief Justice
J.W.N. Tseekooko
Justice of the Supreme Court
A.N. Karokora
Justice of the Supreme Court
G.W. Kanyeihamba
Justice of the Supreme Court
C.M. Kato
Justice of the Supreme Court
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