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IN THE SUPREME COURT OF UGANDA AT MENGO
CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA
JJ.S.C.
CRIMINAL APPEAL NO. 39 OF
2003
BETWEEN
1. Walugembe Henry] 2. SSALI PAUL SANDE ]:::::::::::::::::::::::::::::::APPELLANTS 3. KAMANZI JOSEPH ]
AND
UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
(Appeal from judgment of the Court of Appeal (Okello,
Mpagi-Bahigeine & Twinomujuni JJ.A) at Kampala, in Criminal
Appeal No.60/01 dated 12.12. 2003).
JUDGMENT OF THE COURT.
Walugembe Henry, Ssali Paul Sande and Kamanzi Joseph,
hereinafter referred to as the 1st,
2nd and 3rd appellants respectively,
were indicted and convicted by the High Court of Uganda (Wangutusi Ag.
J.) sitting at Masaka, on three counts of robbery contrary to sections
272 and 273(2) of the Penal Code Act. They were each sentenced on every count to
suffer death, but the sentences on
the second and third counts were suspended.
Their appeals to the Court of Appeal were dismissed. They have now appealed to
this Court.
A summary of the facts on which their convictions were
based is as follows. On 10 9. 99, at about 8 p.m., employees of Minnesota
International
Health Volunteers (M.I.H.V), an NGO engaged in public
health education, traveling in a Land Rover reg. no.
UAA 937 M fell in an ambush mounted by robbers at Rwensiri village along
Matete-Sembabule road. The robbers ordered them
out of the vehicle and
robbed them of personal property, including money, a watch and shoes as
well as the said vehicle. During the robbery
the robbers were armed with what appeared to be a gun and a panga,
with which one of them repeatedly hit the victims. The robbers drove off
in the
vehicle, which contained equipment that the victims had been using for public
video shows at Nondo Rwebitakuli, and shs.160,000/-,
which the driver had hidden
under a seat when he sited the robbers. They left the victims at the scene of
crime. Subsequently, the
vehicle was found abandoned, but both the equipment and
the money had been removed from it.
On the following day, the police at Kinoni Police Post received information
that the 3rd appellant and others were preparing to collect hidden
stolen articles or to go on a "robbery mission". The police monitored the
group's
movements until evening when they laid ambush in Kyasonko
swamp, at a spot suggested by the informer. At about 10.30 p.m., the
2nd and 3rd appellants travelling in a hired vehicle (with
a woman called Rose and Sula, the driver), fell into the ambush and were
arrested.
The 3rd appellant owned up to the police that they had come
to collect articles they had hidden in the swamp. Initially he led
them to a generator and a TV set, which were then retrieved
from the swamp. Later, he and the 2nd appellant disclosed that there
were other items left behind. They returned to the swamp with the police and
retrieved a video deck,
a radio cassette and speakers. All the items bore the
initials M.I.H.V. In the course of recovering those items the two appellants
disclosed that they had had a panga during the robbery, but a search for it was
futile. They also revealed that the 1st appellant had participated in
the robbery. The 3rd appellant then led the police to the residence
of the 1st appellant in Nyendo. The police searched the
1st appellant's house and found a toy gun and a watch that the
appellant admitted was stolen property. Subsequently, at the police post,
the
robbery victims identified the recovered generator, TV set, video deck, radio,
speakers and watch as articles stolen during the
robbery. Also similarly
identified, was a pair of shoes the 1st appellant wore upon being
arrested.
In addition, while in police custody, the 1st
and 2nd appellants made charge and caution statements, which were
admitted in evidence at the trial. Each statement amounted to a
confession by the maker and incriminated the other appellants.
In defence, each appellant, in an unsworn statement, denied participating in
the robbery, and possessing the stolen property, implying
that the police
planted the property on them. The 1st appellant asserted that he was
arrested near Nyendo Police Post while selling second-hand clothes, and not at
home as testified by
the police witnesses. The 2nd appellant denied
being arrested in the police ambush. He said that policemen and LDUs found him
sleeping with his girl friend in
a lodge at about 1a.m., and arrested him
apparently because they suspected that the tax
tickets he produced for identity were not genuine. The
3rd appellant agreed that he was
arrested at a police roadblock in the night of 11. 9. 99
but claimed that he was travelling with his wife to Bukoto in a hired car. He
said that the policemen
at the roadblock were standing near stolen property
found in the area, about which he knew nothing. He denied leading the police
to
retrieve them from the swamp. Both the 2nd and 3rd
appellants reiterated their repudiation/retraction of the
confession statements. The trial court
rejected each appellant's defence and accepted
the prosecution case.
In this Court, the appellants filed
separate Memoranda of Appeal through different counsel. The formulations of the
grounds of appeal
vary, but there is much similarity in substance. Therefore,
rather than reproduce and consider the grounds of appeal as separately
formulated, it is expedient and will suffice to consider the issues arising
there from as follows —
• Whether the Justices of Appeal erred in upholding the finding that
• the 1st and 2nd appellants' confessions were admissible; o the robbers used or threatened to use a deadly weapon;
• Whether the Justices of Appeal failed to re-evaluate the evidence; • Whether the circumstantial evidence against any of the appellants was inconclusive.
Admissibility of
confession statements.
In convicting the appellants, the trial court
relied heavily on the written confessions that the 1st and
2nd appellants made to the police. He treated the rest of the
circumstantial evidence as corroboration of the confessions, which had
been
retracted/repudiated. The main argument before us on the confessions was that
the courts below wrongly accepted and relied on
the confession statements
notwithstanding the prosecution's failure to disprove the allegations that the
confessions were obtained
through torture. Secondly, it was
submitted that the recording of the statements was irregular because (a) they
were recorded in English and not
in the languages in which the appellants spoke;
and (b) they were both recorded by one police officer, to the
prejudice of the 2nd appellant whose statement was recorded later.
Thirdly, it was submitted for the 1st appellant that his statement
was also irregular because it was recorded in the presence of the O/C Police. In
support of their submissions,
counsel referred us to
Sewankambo Francis and Others vs. Uganda Cr. App.
No.33/01 (SC) and Festo Androa Assenua and Others vs. Uganda Cr.
App. No. 1/98 (SC). Counsel for the respondent submitted that the trial court
tested the statements in a trial-within-trial and
found that they were both made
voluntarily, and that because they were detailed in content and corroborated by
the circumstantial
evidence, they were true. He conceded that it was irregular
for the same police officer to record the two statements but submitted
that the
irregularity was not shown to have prejudiced any of the appellants.
In the Court of Appeal, the appellants similarly complained inter alia that the trial judge erred in holding that the statements were made voluntarily and properly admitted in evidence. In their judgment, the learned Justices of Appeal rejected that ground of appeal saying -
"These statements were meticulously tested by the court during trials within the trial. A1, Walugembe Henry, denied having made any statement. He then changed the story and said that he had made one because of the beating. The Judge was therefore correct to find him a liar. A2, Ssali Sande claimed to be illiterate saying
that he was guided by the police to write his name, yet
when asked to read, he read without hesitation. The Judge found his story of
torture to be untrue."
With the
greatest respect to the learned
Justices of Appeal, we do not share their
view that the trial court "meticulously tested" if
the confessions were made voluntarily. In our
view the learned trial judge did not
direct his mind correctly on the law and principles
governing admission of confessions in evidence.
In particular he erred in regard to the onus of
proof and did not consider the irregular recording of the confessions.
The learned Justices of Appeal overlooked or did not appreciate this. We need
only elaborate
on the error on the onus of proof, since the irregularity was
virtually conceded.
Section 24 of the Evidence Act, (Cap.6) provides
-
"A confession made by an accused person is irrelevant if the making of the confession appears to the court, having regard to the state of mind of the accused person and to all the circumstances, to have been caused by any violence, force, threat, inducement or promise
calculated in the opinion of the court to cause an untrue confession
to be made."
Where an accused person objects
to the admissibility of a confession on the ground that it was not made
voluntarily, the court must
hold a trial-within-a-trial to determine if the
confession was or was not "caused by any violence, force, threat, inducement or
promise
calculated to cause an untrue confession to be
made". In such trial-within-trial, as in any criminal trial, the
onus of proof is on the prosecution throughout. It is for the prosecution to
prove that the confession was made voluntarily, not for
the accused to prove
that it was caused by any of the factors set out in s.24 of the Evidence
Act.
See Rashidi vs. Republic (1969) EA 138. In the instant case, when the two appellants, through their counsel, severally challenged admissibility of their respective confessions, on ground that they were tortured, the prosecution assumed the burden to prove that no acts of torture were inflicted on either of them. We are not satisfied that the learned trial judge had this principle in mind when he ruled that the confessions were made voluntarily. It appears to us that he came to that conclusion more because of his finding that the appellants lied to him about torture than on the ground that the prosecution proved that the confessions were made voluntarily. This is what he said in the ruling -
"The accused... objected to the tendering of the charge and caution statement. A1, ... in evidence said he never made any statement. That he never signed any and that although he was beaten he made none. The foregoing alone (shows) he was not truthful because at the time he instructed counsel to make objection he said he had made a statement because he was being beaten by the police. This is enough to show that the accused told lies about the torture. While he said he was tortured by police in the same breath he said he never saw any policeman, He even denies seeing AIP Otto and the interpreter Sebwato or Amayo. Yet these are the very fellows he first said forced him to make a statement. This statement is the one he now denies. TT1, TT2 and TT5 testified that the accused was taken by Amayo to Otto who was with Sebwato and they took down his statement. Their evidence remained unchallenged and because of the straight forwarded I believe they did not torture the accused. A2, ... also objected and said the statement was obtained from him under torture. He did not at that time refer to the torture hanging a
brick on his testicles. He instead said he had been beaten. What however seemed to be most untruthful was where he said the police officer then guided his hand to write his name since he (accused) did not know how to write. I found this difficult to believe because all the signatures were the same Secondly when he was asked where he signed and read, the "supposed illiterate" read the three names without hesitation and in the order in which they were written. I found this rather strange and incompatible with truthful- ness. While the story of the accused was tainted with untruthfulness, the prosecution witnesses in the trial within trial were so consistent
and straight forward that they could only but have been telling the truth " (Emphasis is added).
It is obvious to us from the
ruling, that the learned trial judge proceeded on the erroneous premise that the
appellants had to prove
that they were tortured. This is so
because in respect of each statement, the learned judge in effect, held
that since he did not believe the appellant's story, the prosecution
evidence
was unchallenged and therefore true. That is an obvious misdirection. We think
that if the learned judge had evaluated the
evidence bearing in mind that the
onus was on the prosecution, he may well have concluded that the prosecution had
not discharged
the onus. In that regard, counsel for the appellants argued that
notwithstanding that the trial judge disbelieved the appellants,
the possibility
of torture was not ruled out because no medical evidence was adduced to negative
the allegations of torture. While
we do not wish to give the impression that
only medical evidence can negative allegations of torture, we think there is
some substance
in this argument. It is a routine practice to subject an accused
person taken into police custody, to medical examination and
subsequently to adduce medical evidence of his/her physical and
mental condition, particularly in trials of serious crimes. In
appropriate cases, this helps to resolve pertinent
disputes such as the one at hand or in respect of criminal liability on account
of age or mental status. In the instant
case where it was alleged inter alia
that one of the appellants was stabbed and underwent medical
treatment, such medical evidence would most likely have helped to either support
or belie the allegation. It is noteworthy
that medical evidence on PW3's
injuries was adduced, but surprisingly, none was adduced in respect of any of
the appellants, and
the omission was not explained.
In
Sewankambo and others vs. Uganda Cr. App. No. 33/01
(SC), this Court
considered similar issues and had this to say -
"...there are other unsatisfactory features which affect the voluntariness of these confessions. First, we think that it is irregular for one police officer to record alleged confession statements from two suspects charged with the same offence arising from the same incident. The temptation on the part of the police man to use contents of one statement to record a subsequent statement cannot be ruled out. In the instant case we note that AIP Otim recorded the alleged confession of the second appellant after he had recorded a similar confession from the first appellant. Second, the same police officer apparently did not have a Luganda interpreter to interpret communication between him and appellants. ... Third, all the appellants claimed that they were assaulted by the police before they were made to sign .... the alleged confessions. Indeed the first appellant claimed that he was assaulted and injured
on the left leg which was treated by Dr. Ssekitoleko.
Strangely enough the prosecution did not adduce any evidence of medical
examination in respect of all the appellants.
No explanation was given. In the
circumstances, with all due respect, the Court of Appeal misdirected itself to
say, as it did, that
the learned trial judge properly admitted the appellants'
confession statements in evidence." We are of a similar view in the
instant case. We think that the combination of the trial judge's misdirection on
the onus of proof,
and the non-adherence to the guidelines on recording of
confessions as set out in Festo Androa Asenua and others vs. Uganda
(supra), on the part of the police officer who recorded the said
confessions, makes it unsafe to uphold the admission of the confession
statements in evidence. The Court of Appeal erred in upholding the trial judge's
ruling that the confession statements were admissible.
We accordingly allow the
grounds of appeal on that issue. We hold that the 1st and
2nd appellants' confession statements were inadmissible and should
not have been relied upon in convicting the appellants. We now have
to consider
if, without the confessions that the courts below relied on, the remaining
evidence can sustain the convictions of the
appellants or any of
them.
Evidence against each appellant
The fact of the robbery was
proved beyond any doubt. What we have to consider is whether there is conclusive
proof that the appellants
were the robbers. As against the 1st
appellant, the remaining evidence is that upon his arrest at his residence, he
was in possession of two articles, a watch and a pair
of shoes, which
were stolen from the robbery victims. Similarly, as against
the 2nd and 3rd appellants, the remaining evidence is that
they were arrested while on a mission to retrieve articles stolen during the
robbery.
Counsel for the 1st appellant argued that the shoes found on him were not
positively proved to be property stolen during the robbery.
Counsel, however,
made no comment on the watch. On the other hand, the respective counsel for the
2 and 3 appellants argued that
there was no conclusive evidence that the
appellants led the police to the articles, as the police already knew the
location of the
articles and arrested the appellants before they retrieved the
articles from the swamp. According to that argument, it was not proved
beyond
reasonable doubt that the articles were in the possession of the two
appellants or that when the appellants fell into the police ambush
they were
going to retrieve the stolen articles.
In
our view the evidence that the appellants were found in possession of articles
stolen during the robbery is overwhelming. The learned
trial judge believed the
police witnesses who testified that they found the watch, Exh.P5, on a table in
the house of the 1st appellant, and that when they were taking him
away under arrest, he first asked and was allowed to put on shoes, Exh.P8. The
watch
and the shoes were subsequently identified first at the police station and
later in court during the trial, as articles stolen, respectively from
Ignatius Kabuye, PW3, and Polisio Ssonko, PW4. The appellant offered no
explanation of
innocent possession of those articles. Similarly, the trial court
accepted the evidence of the same police witnesses that when the
2nd
and 3rd appellants fell into the police ambush, they
owned up and led the police party to the several articles hidden
in the swamp, which articles were conclusively proved to be property of M.I.H.V
that had been in the vehicle when the robbers drove off after the robbery.
Although it appears from the evidence that the 3rd
appellant played a leading role in the
recovery of the articles, after the recovery of the first
items, i.e., the generator,
Exh.P1, and the TV set, Exh.P2, the 2 appellant participated in disclosing
that some other items were left behind, which led to the
recovery of the
deck Exh.P3, the radio Exh.P4, and two speakers Exh.P6. He
rejected the defence that the articles were planted
on the two appellants. The Court of Appeal upheld the trial judge's decision and
we have no reason
to fault that. Accordingly, we are satisfied from the evidence
that when the police intercepted the 2nd and 3rd
appellants, they were both on a mission to collect those articles, which
leads to an irresistible inference that both participated in hiding the articles
in the swamp. We therefore hold that the property was in their constructive
possession.
Under the doctrine of recent possession, if
a person is found in possession of property that was recently stolen, a
presumption of fact arises that such person
is either the thief or a receiver
with knowledge that the property was stolen. The presumption may be rebutted by
credible explanation
of innocent possession of the property. In Kantilal
Jivraj and Another vs. R (1962) EA 6, at p. 7 the Court of Appeal for
Eastern Africa said -
"It is of course well established, ... that a court may presume that a man in possession of stolen goods soon after the theft is either the thief, or has received the goods knowing them to be stolen, unless he can account for his possession. ... This is an inference of fact which
'may be drawn as a matter of common sense from other facts...'
It is merely an application of the ordinary rule relating to circumstantial evidence that the inculpatory facts against an accused must be incompatible with innocence and incapable of explanation upon
any other reasonable hypothesis than that of guilt. According to the particular circumstances, it is open to a court ... to hold that unexplained possession of recently stolen articles is incompatible with innocence. But guilt in this context may be guilt either of stealing or of receiving the articles in question." (Emphasis is added)
In Andrea Obonyo and Another
vs. R (1962) EA 542, the same court fully considered and
reviewed the doctrine of recent possession, and at p. 549 had this to say
on the question of determining the offence to be inferred
in different scenarios
-
"When a person is charged with theft and, in the alternative with receiving, and the only evidence connecting him ... is the recent possession of the stolen property, then if the only reasonable inference is that he must have either stolen the property or received it knowing it to be stolen, he should be convicted either of theft or of receiving according to which is more probable or likely in the circumstances. He is not entitled to be acquitted altogether (merely due to the doubt on which of the two)... because the decision is not between guilt or innocence but between whether he is guilty of theft or receiving...But where it is sought to draw an inference that a person has committed another offence from the fact that he has stolen certain articles, the theft must be proved beyond reasonable doubt. If, in such a case, a finding that he stole the articles depends on the presumption arising from his recent possession of the stolen articles such a finding would not be justified unless the possibility that he received the articles has been excluded. The inference that he stole the articles must be irresistible."
We
agree with the proposition in Andrea
Obonyo's case (supra) that where
on a charge other than 'theft
or receiving', the sole
evidence relied
on as proof that the accused was at the
scene of crime, is
possession of stolen goods soon after
the theft, the possibility that
he only received
the stolen items must be
ruled out beyond reasonable doubt. An accused person
cannot be convicted of robbery if the presumption is that he
either stole or received the property.
The presumption must go beyond that. It must be a presumption that the accused
is without any reasonable doubt the
thief.
This Court in Izongoza William vs.
Uganda, Criminal Appeal No. 6/98 also reviewed the
doctrine of recent
possession as applied in other decided cases and
invoked it to uphold the conviction of the
appellant in that case for
aggravated robbery on strength of
evidence that
twelve hours after the
robbery, he was found in possession of a
bicycle that was obviously stolen in the robbery and the possibility that he was
a mere receiver was
excluded largely
because he offered no explanation of his possession
of the bicycle. The doctrine was also applied in Oryem Richard and Another
vs. Uganda, Criminal Appeal No. 2/02 (SC).
We now turn to consider if in the instant case the possibility that the
appellants were only receivers was excluded, and if the inference
that they
participated in the robbery is irresistible. The time that lapsed between the
robbery and when the appellants were found
in possession of the stolen articles
was so brief as to make the possibility that the articles changed hands too
remote. The robbery
occurred in the night of 10. 9. 01 and in the night of the
following day the 2nd and 3rd appellants were intercepted
on the way to retrieve the articles hidden in the swamp, and thereafter the
3rd appellant led the police to the 1 appellant who was in possession
of the watch and the shoes. Secondly, the articles, particularly
those marked with the initials MIHV, were the kind
that would not have been sold off or otherwise disposed of readily. Thirdly, it
is difficult to believe that if they were
mere receivers they would not
say so when faced with the capital charge of aggravated robbery, even if
it involved admitting the offence of receiving. Each simply denied possession
and relied on the
implicit allegation that the police planted the stolen
articles on him, which in our view the learned trial judge rightly rejected.
We
are satisfied that the possibility that the appellants were mere receivers is
without any reasonable doubt excluded. We agree
with the concurrent finding of
the courts below that all three appellants participated in
the robbery.
Deadly weapon
The last issue is whether the offence
committed was simple or aggravated robbery. The latter is constituted if a
deadly weapon is used
or threatened to be used in the course the robbery. The
arguments raised for the appellants in this regard were (a) that there
was insufficient evidence to prove that the robbers had a deadly weapon
which they used or threatened to use, and (b) that the
Court of Appeal misdirected itself on evidence where
it held that the robbers used a panga to cut
PW3, contrary to the medical evidence that the injuries PW3 sustained were
inflicted through use of a stick. Counsel
for the respondent submitted that both
courts below judiciously considered the issue whether a deadly weapon was used
or threatened
to be used and concurrently answered the issue in the affirmative.
He maintained that no cause was shown to justify reconsidering the
issue on a second appeal.
It is evident from their judgment that in considering the issue the learned Justices of Appeal were largely influenced by the contents of the confession statements, which we have held should not have been admitted in evidence. However, they also said -
"We agree with the findings of the learned Judge that the panga was
properly identified under the circumstances he outlined. In actual
fact PW3
sustained bruises and cuts which would be consistent
with use of a panga rather than a piece of wood as alleged. We have no
doubt it was a panga that the witnesses saw and thus a deadly
weapon."
In Section 286 (3) [formerly s.273 (2)] of the
Penal Code Act "a deadly weapon" is defined
as including -
"any instrument made or adapted for shooting,
stabbing or cutting and any instrument which, when used for
offensive purposes, is likely to cause death." It is common knowledge
that a panga answers that definition. Furthermore, precedents abound in which
our courts have held that a panga is a deadly weapon. All the
three eyewitnesses who were victims of the robbery
testified that one of the robbers was armed with a panga
and hit them with it many times, albeit using the flat
side of the panga, and that he also
threatened to cut the driver with it. The
witnesses were able to see the weapon in the light
of the motor vehicle before the driver was ordered to switch off
the light, and must have felt it as they were hit with it. That evidence, which
the court
believed, was ample proof of the fact that the robbers had and
used a deadly weapon. We reject, as farfetched speculation, the suggestion by
counsel for the appellants
that what the witnesses saw may have been an
imitation panga. However, we agree that the view expressed by the learned
Justices of
Appeal that "PW 3 sustained bruises and cuts which
would be consistent with use of a panga rather than a piece of wood as
alleged" was inconsistent with the evidence. The learned Justices did not
see the injuries and so had no basis for rejecting the medical opinion
that they
resulted from beating with sticks. Nevertheless, much as their view was
erroneous, it was immaterial because the injuries
and their cause are not
ingredients of the offence in issue.
In conclusion, we find that the
erroneous admission of the confessions in evidence did not occasion any
miscarriage of justice as
the other circumstantial evidence led to irresistible
inference of the appellants' guilt. We hold that the trial court rightly
convicted
all three appellants as indicted and the Court of Appeal rightly
upheld their convictions. Accordingly, we dismiss the appeal against
conviction.
On sentence, the appellants through Messrs Katende,
Ssempebwa & Co. Advocates, with consent of counsel for the respondent
applied
and were allowed to file grounds of appeal against sentence. Before they
did, we heard the Advocates in Philip Zahura Vs. Uganda Criminal Appeal
No. 16 of 2001, on the same ground of appeal they intended to raise
in this appeal. We intimated that we would make appropriate order in similar
cases.
In this cases it is appropriate to follow our decision in Philip
Zahura Vs. Uganda (supra), and exercise our discretion under
article 22 (1) of the Constitution, to postpone
confirmation of the sentences imposed in this case, until the determination of
the pending appeal against
the decision of the Constitutional Court in
Constitutional Petition No. 6 of 2003.
DATED at Mengo the 1st day of November
2005.
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
J.N. Mulenga
Justice of the Supreme Court
G.W. Kanyeihamba
Justice of the Supreme Court.
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