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THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODOKI, C.J, ODER, TSEKOOKO, KAROKORA, KANYEIHAMBA, J.J.S.C.)
CRIMINAL APPEAL NO 27 OF
2002
BETWEEN
MATOVU MUSA KASSIM
::::::::::::::::::::::::::::: APPELLANT
AND
UGANDA
:::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
[Appeal arising from the judgment of the Court of Appeal (Mukasa-Kikonyogo, D.C.), Okello, Mpagi-Bahigeine, JJ.A), dated 16th May 2002 in Criminal Appeal No. 33 of 2001]
JUDGMENT OF THE COURT
The appellant and three other persons were indicted on two counts namely, of murder, contrary to sections 183 and 184 and aggravated robbery, contrary to sections 272 and 273(2) of the Penal Code Act. A nolle prosequi was entered by the D.P.P in respect of 2nd accused person on both counts. At the end of the trial, the 3rd and 4th accused persons were acquitted on both counts for lack of evidence. Only the appellant was convicted on both counts. He was sentenced to death on each of the counts but sentence on count 2 was suspended. He appealed to the Court of Appeal which dismissed his appeal. Hence this appeal.
The facts of the case may be summarized as follows: On 28 September 1996,
robbers attacked the residence of one Markowski, at Mackay
Zone, Mengo in
Kampala District. They stole several of his household items including a knife
which was Exhibit P2 at the trial. In
the course of the robbery, Mr. Mike
Markowski was shot dead. His wife was raped. None of the robbers was seen or
identified by any
eyewitness. The incident was nevertheless reported to the
Police and after investigations; the appellant and his co-accused were
arrested
and charged with the murder and the robbery. Later, the appellant made a charge
and caution statement in which he confessed
to the offences.
At the trial, the appellant gave sworn evidence in which he repudiated the confession which had been received in evidence without objection from his counsel. He set up a defence of alibi. The trial judge, while treating the appellant's confession as repudiated, accepted it as true and rejected the appellant's defence of alibi. Having taken into account the surrounding circumstances of the case and the detailed account of what occurred as narrated in the repudiated confession, the learned trial judge convicted the appellant and sentenced him to death. The learned Justices of Appeal reevaluated the evidence and came to the same conclusion as the trial court. They therefore dismissed the appellant's appeal and confirmed the sentence.
The Memorandum of Appeal before this court contains two grounds of appeal framed as follows:
1. THAT the learned Justices of Appeal erred in law and fact when they upheld the finding of the High Court Judge that the appellant made the statement and that it is well corroborated and made by the first accused and as a result came to a wrong decision. 2. THAT the learned Justices of Appeal erred in law and fact when they failed to adequately evaluate the evidence as a whole regarding the confession statement and as a result came to a wrong decision.
Mr. Edward Muguluma Ddamulira, counsel for the appellant argued the two
grounds together. He contended that the findings by the trial
judge that the
repudiated statement was made by the appellant and it contained the truth of
what actually occurred in the night of
the murder and the aggravated robbery was
wrong. He further contended that the learned Justices of Appeal erred both in
law and fact
when they confirmed the findings and judgment of the trial judge
when they themselves had not reevaluated the evidence.
Mr. Muguluma contended further that the fact of the matter was that police
officers who investigated and charged the appellant had
prior knowledge of what
had occurred and they also knew that the appellant had not participated in the
commission of the crimes with
which he was subsequently charged. The police had
deliberately framed the charges against him. There had been more than one police
officer interrogating the appellant - a fact which counsel contended was against
the law. He contended that even assuming that the
repudiated confession was
admissible, it still lacked one necessary ingredient, namely corroboration. He
argued that in law it is
assumed that if a judge finds that there is no
corroboration to support an accused's alleged statement, the judge should acquit
the
accused. Counsel cited Njuguna s/o Kimani and 3 Others v. R.
(1954) 21 EACA 316 and Tuwamoi v. Uganda (1967) EA 84, as authorities
in support of his submissions.
For the respondent, Miss Sarah Kerwegi, Senior State Attorney supported both
the conviction and sentence of the appellant. She contended
that the treatment
and consequences of a repudiated confession as determined by the learned trial
judge were the only correct approaches
to adopt in this case. She further
contended that whereas corroboration is desirable, it is not the position in law
that where it
is not available a court cannot convict. As long as the trial
judge is satisfied that the statement was made voluntarily and that
what it
contains is the truth of what occurred, the judge is entitled to bring in a
verdict of guilty as happened in this case.
Miss Kerwegi further contended that in this case, the learned justices of
Appeal on their own volition analysed the facts and evidence
of the case and
came to the same conclusion as that of the trial judge whose findings and
judgment they confirmed. Miss Kerwei conceded
that there may have been some
loopholes in the way the evidence was presented to court but on the whole none
was anywhere near rendering
the trial a miscarriage of justice. Counsel for the
respondent contended further that the information the appellant revealed in his
repudiated confession could only have been known and come from a person who had
personal and intimate knowledge of both the murder
and the robbery. In Counsel's
opinion, the courts below made the proper findings and reached the correct
decisions and they should
be upheld.
We are constrained to observe that the police investigations in this case
were unsatisfactory. It is clear that the appellant did
not play the most
significant roles in both the murder and the rape, if his repudiated confession
is to be believed. On the other
hand, the main planners and principal
participants in the two crimes were either uncovered or not successfully
prosecuted because
of lack of adequate inquiries for which the police were
responsible. However, we are satisfied that the evidence available before
the
courts below was more than sufficient to justify the conviction of the
appellant.
Before his trial, the appellant made a detailed statement disclosing facts and events which only a person who was an active participant and eye witness to much of what occurred on the night of the murder could have been familiar with. It is true that at his trial, he gave sworn evidence in which he repudiated the confession. However, a number of factors exist to discredit any claim that his repudiation, in any way, affected the facts and events he disclosed. We have already observed that the story he told could only have been known by a person who had actively participated in the incidents of the crimes. The appellant's contention that he was framed have no grain of truth in it. At the trial his own counsel, Mr. Muyonjo who must have had instructions from the appellant since the latter did not contradict him said;
"My client says he made the statement I will only cross-examine the
witness but not challenge the confession as such."
The sole ground
upon which the appellant challenged the conviction in the Court of Appeal was
not that he did not make the statement
but that it was not voluntary.
While accepting the ingredients of a voluntary confession under the rules established in Njuguna s/o Kimani and 3 others v. R, (supra), in this case we agree with the findings of the learned Justices of Appeal and their observation that
"Court can convict on a retracted or repudiated or both retracted and repudiated confession alone if it is satisfied after considering all material points and the surrounding circumstances of the case that the confession cannot but be true."
The learned Justices of Appeal further examined the appellant's claim that he was tortured by the investigating or and the interviewing police officers and concluded that the claim was an afterthought and concocted. The Justices of Appeal concluded;
"If it were true, the appellant would have told his lawyer. He did not appear to have done so. His evidence portrayed the torture as having been grim and extensive. It was inevitable that torture of that magnitude would have caused extensive injuries which would have left scars on his body. The record of proceedings does not reveal that he ever showed the trial judge any such scar."
We reiterate the law governing retracted or repudiated confessions as was succinctly stated in Tuwamoi v. Uganda, (1967) E.A. 84;
"A trial court should accept any confession which has been retracted or
repudiated with caution and must, before founding a conviction
on such a
confession, be fully satisfied in all circumstances of the case that the
confession is true. The same standard of proof
is required in all cases and
usually a court will only act on the confession if corroborated in some material
particular by independent
evidence accepted by the court. But corroboration is
not necessary in law and the court may act on a confession alone if it is
satisfied
after considering all the material points and surrounding
circumstances that the confession cannot but be true."
The learned trial judge, Katutsi J. commented on the extra judicial statement of the appellant when he describes his role as minor compared to the role assigned to his freed and other accomplices. We have already commented on the regrettable circumstances under which those accomplices gained their freedom. Be that as it may, the learned trial judge was alive to the law with regard to alleged minor accomplices like the appellant. The judge cited section 21 of the Penal Code Act which enumerates the persons who, if they participate in the commission of an offence they are equally guilty of the same offence and they include;
"21 (1) (c), every person who aids or abets another
person in committing the offence."
We agree with the learned trial judge when he observes that the appellant cannot be heard to say that for him he was left outside to keep a watch on whoever would be approaching and then warn those who were inside actively committing the offence. He is as guilty as if he was inside the house looting like the rest of them. The trial judge emphasized his decision by reference to S.22 of the same Act which provides that:
"When two or more persons form a common intention to prosecute an
unlawful purpose in conjunction with one another and in the prosecution
of such
purpose an offence is committed of such a nature that its commission was a
probable consequence of the prosecution of such
purpose each of them is deemed
to have committed the offence."
The Court of Appeal confirmed this reasoning and the findings and decision of
the learned trial judge. We are unable to fault those
findings and
decision.
In our view, there is no merit in this appeal. It is accordingly dismissed.
Dated at Mengo this 18th day of August 2005.
B.J.ODOKI
CHIEF
JUSTICE
A.O. ODER
JUSTICE OF THE SUPREME COURT
J.W.N. TSEKOOKO
JUSTICE OF THE SUPREME COURT
A. KAROKORA
JUSTICE OF THE SUPREME
COURT
G.W. KANYEIHAMBA
JUSTICE OF THE SUPREME
COURT
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