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IN THE SUPREME COURT OF UGANDA AT MENGO
CORAM: ODOKI, CJ; TSEKOOKO, KAROKORA, MULENGA,
KANYEIHAMBA JJ.S.C.
CRIMINAL APPEAL NO. 2 OF
2002
BETWEEN
KABUYE
SENVEWO:::::::::::::::::::::::::::::::::::::::::::::APPELLANT
AND
UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
(Appeal from judgment of the Court of Appeal (Mukasa - Kikonyogo DCJ;
Engwau, Byamugisha, JJ.A) at Kampala in Criminal Appeal No.26/02
dated
16.4.04)
JUDGMENT OF THE COURT.
The High Court of Uganda (Mwangusya J.) sitting at Masaka on 8
November 2002 convicted the appellant for manslaughter and rape of
Nakanwagi Agnes, the deceased, sentenced him to imprisonment for 8 and
10 years
respectively, and ordered that the sentences shall run concurrently. On 16
April 2004, the Court of Appeal dismissed the
appellant's appeal against both
conviction and sentence; hence this
second appeal to this Court also against both conviction and
sentence.
The facts on which the
appellant's conviction was based are
brief. The deceased, a married woman, was a hawker of second
hand clothes, and the appellant, an Assistant Bank Manager of Masaka
branch of the Uganda Commercial Bank was her customer along with
other bank staff. On 21st August 2001, at about 4.30
p.m., the deceased went to the bank. Outside the bank, Harriet
Iga, an office attendant who had earlier bought clothes on credit
paid her debt and informed the deceased that the
appellant whom she wanted for the same purpose, was inside the
bank. The deceased decided to wait for him
outside his residential flat on top of the bank. She stayed
chatting with Matovu Matiya who was painting the flat.
Subsequently, the appellant came out of
the bank and together with the
deceased entered the flat and locked
the door. The two stayed inside the flat
alone until 8.30 p.m., when the appellant called for
medical help because the deceased was in bad
condition. Three doctors turned up at the flat and found the deceased on the
appellant's bed. She was dressed in only a half-slip and stripped
shorts. She was gasping for breath, and in coma. Blood stained froth was
coming from her mouth and nostrils. Because of her critical condition the
doctors rushed
her to hospital where efforts to resuscitate her failed. She died
at 9.20 p.m. Dr. Sewankambo, DW2, issued a certificate stating the cause
of death to be cerebral vascular accident. Subsequently,
however. Dr. Kibuka Musoke, PW4, who carried out a
post-mortem examination, found external and internal
injuries on the deceased's body and certified the cause of death to
be shock resulting from severe bleeding of internal organs. The
police arrested the appellant on a charge of murder. In his charge and caution
statement to the police,
the appellant stated that he had dealt with the
deceased for two years when she used to sell secondhand clothes to him,
sometimes
on credit; and that during that period they developed a love
relationship and got to know each other intimately. Through that intimacy,
he
learnt from the deceased that she had had two accidents from which she sustained
body pains. In the first accident she was squeezed between two
motor vehicles and in the second she fell down and hit
her chest against a chair. According to him, up to the time
of her death she was still undergoing treatment for the
body pains.
He said that on the fateful day, after entering
the flat with the deceased, they first discussed purchase of clothing for his
children
and then agreed to have sexual intercourse. They had an
uneventful first round. However, when they resumed
the intercourse after an interval, the deceased
started breathing very fast. He asked her what was wrong,
but she did not respond and when he saw froth forming at her mouth he
stopped sex. He cleaned her mouth with a wet face towel whereupon
he noticed
what appeared to be blood in the froth. He was alarmed and called
for medical help.
At his trial, he was indicted for murder and rape. On the charge of murder,
the trial court found that the prosecution had proved,
through circumstantial
evidence, that the appellant unlawfully killed the
deceased, but had failed to prove that
he did so with malice aforethought, hence the
conviction for manslaughter. The court, however, held that the
charge of rape was proved beyond
reasonable doubt. The Court of Appeal upheld
both convictions. The appeal to this Court is on four grounds drawn in
argumentative form contrary to rule 81 of the Supreme Court Rules. In
essence, however, the or after death as surmised by
counsel for the appellant. Nor could they have
been sustained during earlier accidents as
suggested by the appellant because
her husband and her son testified that
she was never involved in any accident.
It appears to us that the criticism of the Court of Appeal by learned counsel for the appellant was misconceived and/or made out of context. In its judgment, the Court of Appeal reviewed all the circumstantial evidence adduced at the trial and concluded that it irresistibly pointed to the appellant as the person who inflicted the injuries that caused the death of the deceased. It based the conclusion on what it referred to as three "factors"; which in summary were that -
1. Dr. Sewankambo's examination of the deceased was casual and hurried, and his certificate as to the cause of death was reliant on the history given by the appellant that the deceased had had a fit;
2. The appellant's claim that the deceased had had two accidents was false as it was negated by the testimony of her next of kin who would have known if she had been involved in such accidents;
3. An expert witness is supposed to provide scientific criteria on which his conclusion is based, and if the expert evidence is not satisfactory or different experts give different criteria, the court can rely on other evidence.
After outlining those "factors", the court made the observation that 'the medical evidence tended to lean towards the theory that was advanced by the appellant that the deceased was involved in accidents'. We appreciate that if one takes that part of the judgment in isolation, as counsel for the appellant did, the said criticisms by counsel would carry weight. First, the first two grounds, which relate to the conviction for manslaughter, are that the Court of Appeal erred -
• in upholding the trial court finding, on wrong grounds, that the appellant inflicted the injuries that caused death; and
• in failing to evaluate evidence, which supported the appellant's case.
Mr. Ayigihugu, learned counsel for the appellant, argued the two grounds together. He submitted that there was no proof that the appellant inflicted the injuries that caused the death of the deceased, and criticized the reasons relied on by the Court of Appeal to hold that the evidence irresistibly pointed to the appellant as the one who inflicted the fatal injuries. He stressed that two doctors who saw the deceased at the flat testified that she had no injuries on her and he contended that this meant that the injuries found on her during the post-mortem examination were inflicted after she was removed from the flat. He also criticized the Court of Appeal for failing to evaluate that testimony, and give to the appellant the benefit of doubt despite its finding that-
"The medical evidence tended to lean towards the theory that was advanced by the appellant that the deceased was involved in accidents."
In reply, Mr. Okwonga, Ag. Senior Principal
State Attorney, submitted that the circumstantial evidence proved
beyond reasonable doubt that the appellant inflicted the
fatal injuries on the deceased while they were inside the flat. He argued that
the deceased had
entered the flat in apparent good health, stayed inside the
flat with the appellant alone, and eventually came out with the fatal
injuries.
The injuries were inflicted while the deceased was still alive and could not
have been sustained during the resuscitation efforts said "factors" tend
to suggest that the court reached the conclusion of the appellant's
guilt only
because his theory was disbelieved. Secondly, the said
observation gives a misleading impression that the cause of death
was in doubt. However, the court did not stop there. The rest of the
judgment clearly shows that the court outlined the said factors in the course
of
evaluating the evidence, and not as the only reasons for concluding that the
appellant inflicted the injuries on the deceased.
On the other hand, we think
that the observation that the medical evidence leaned towards the
appellant's theory, was an over-statement, which unnecessarily but
inevitably attracted the criticism by learned counsel for the
appellant.
There are two sets of medical evidence. The first set comprises the evidence of Dr. Kibuka Musoke, the pathologist who carried out the autopsy. The second set comprises the evidence of Dr. Mulokola and Dr. Sewankambo, the two doctors who saw the deceased at the flat and participated in efforts to resuscitate her before she died. The former set did not lean towards the appellant's theory but rather destroyed it. Even the latter set did not lean towards the theory in any positive or direct sense. The most support that the appellant can draw from the testimony of the two witnesses is that they did not observe any injuries on the deceased. Their testimony did not 'lean' towards the theory as to previous accidents let alone as to the cause of death. Nor indeed were the two witnesses categorical about their opinion on the cause of death. PW 10 a gynecologist, whose apparent primary role was to check if the deceased was pregnant, testified that after she died he asked the colleagues to examine her, and he added -
"We did not find any sign of injury. Kabuye had told us the deceased had had an accident a month or so before
During our interview with the accused he had told us the deceased had a fit (convulsions). So in our conclusion we had indicated on the death certificate that the cause of death could have been cerebral vascular accident. This conclusion was reached given the frothy discharge, history of fits and previous history of an accident.
We recommended a post mortem by a trained
pathologist "
DW 2, the signatory of the death certificate,
testified inter alia, that they did the clinical assessment
during the resuscitation efforts, and went on to say -"I
based medical certificate of cause of death on history given by Mr. Kabuye and
a rough clinical assessment. I did not do a thorough examination we
recommended post mortem to ascertain cause of death."
These
excerpts from the two witnesses' own testimonies, clearly raise doubt on
the examination undertaken by them, and in particular discredit
their opinion as to the cause of death. We think therefore, that it was
inaccurate to consider their opinion on the cause of death as
expert evidence in conflict with the expert opinion of PW 4. Despite that
inaccuracy, however,
we are satisfied that the Court of Appeal evaluated the
circumstantial evidence as a whole, and that its observation that
medical evidence leaned towards the appellant's theory, was not made as a
definitive finding, but in the process of that evaluation. In that
process, the court unequivocally found that the evidence appearing to lean
towards the appellant's theory was not credible and
disbelieved it. The court therefore, was not left in
any doubt in respect of which it could have given benefit
to the appellant. This is evident in the following excerpt
from the court's judgment -
"Counsel for the appellant in his
submissions stated that the deceased had no injuries at all before she died. He
was referring to
the evidence of Drs. Sewankambo and Daniel Mulokola (PW. 10).
This witness (Mulokola) testified that he and his colleagues examined
the
deceased and saw no injuries fresh or old. With respect, this witness was being
economical with the truth because his colleague
PW 4 found injuries on the
deceased both external and internal although he did not state the age of those
injuries. His evidence that the internal injuries caused a rupture of the
spleen and laceration of the liver, which are vulnerable parts of
the body, and
that the deceased could not have lived with those injuries for long, in our
view, destroyed the defence theory that
the deceased had been
living with those
injuries....
we think that the trial Judge reached the right conclusion (that
the deceased's death) was caused by the injuries inflicted on her by the appellant. The circumstantial evidence is such that it produced moral certainty beyond reasonable doubt that it is the appellant who committed the offence. In our view, there are no co-existins circumstances that would destroy the inference of guilt.. "_(Emphasis is added)
We agree with the Court of Appeal that the
circumstantial evidence leads to the irresistible inference that the
deceased sustained the fatal injuries while she was with the appellant in his
flat and that only the appellant
could have inflicted the injuries. The
evidence does not support the theory that the deceased went to the
flat with the injuries. PW 4, the pathologist, did not ascertain how old the
internal injuries were, but he was categorical that -
"A person cannot live with a ruptured spleen and a lacerated liver for
long. It would be a question of hours."
Although he said that the
subdural haematoma could have been sustained in
an accident some months before, we find no
evidence from which to infer that the
injuries might have been sustained at different times,
particularly having regard to the pattern of the injuries, namely bruises
on the chin, chest wall and abdomen on the exterior and subdural
haematoma, rupture of the spleen and laceration of the liver, internally.
Furthermore, we think that the suggestion by
learned counsel for the appellant that the
injuries found on the deceased during the post mortem examination could have
been inflicted after she left the flat is farfetched. In the first place,
the pathologist, PW 4, testified that the deceased sustained the injuries
while she was alive, and that resuscitation could not cause any of the injuries
he found. Secondly, the
suggestion was not put to any of the medical
witnesses who attended to her throughout, from the time
they found her at the flat till she died. What is more, the suggestion is
inconsistent with the appellant's charge and caution
statement that he adopted
as his defence at the trial, in which he implicitly said that the cause of death
was before or during the sexual intercourse. We also uphold the rejection
of that defence and for the reasons we have outlined reject grounds
1 and
2.
In the third ground of appeal the appellant complains that the
Court of Appeal confirmed the conviction of rape on speculation, and
that it
failed to consider the legal implication of the charge and caution statement,
which was produced in evidence by the prosecution. Mr. Ayigihugu
submitted that it was erroneous on the part of the Court of Appeal to
accept the appellant's statement that he had sexual intercourse
with the
deceased, and yet reject his assertion that it was with her consent, merely on
the speculation that he failed to persuade
her. He stressed that the only
evidence that the appellant had had sexual intercourse with the deceased
was his said statement to the police. Mr. Okwonga submitted that the
appellant's statement, coupled with the medical evidence of injuries found on
the deceased, including a cut on the
labia majora, was sufficient
evidence that the sexual intercourse was not consensual but
forceful.
On this issue the Court of
Appeal agreed with the trial court that the external and internal
injuries found on the deceased and her torn knickers found in her handbag
at the flat, proved that the sexual intercourse was forceful. It opined that
because the police did not promptly visit the scene, the appellant
re-arranged the bed where they had sex and erased incriminating
evidence thereon. It went on to say -
"Like the trial judge rightly stated, the injuries both internal and
external spoke volumes of what happened in the flat. Although Dr.
Kibuka-Musoke
found a small cut wound on the labia majora which he claimed might have been
caused by a general ulcer decease that
alone is insufficient in our view to rule
out forceful sexual intercourse There is no reasonable explanation of how the
deceased
could have received such fatal injuries especially the rupture of the
spleen if she had consented One factor, which did come (not) out
during the trial but that was mentioned during the sentencing process, was that
the appellant has been an aids patient for the
last 15 or so years. The deceased
was a married woman. The possibility that he might have failed to persuade her
to have consensual
sex cannot be ruled out - thus (sic) the use of
force."
With the greatest respect to the Court of Appeal, we find
that in this part of its judgment it erred on several aspects. First, Dr.
Kibuka-Musoke did not simply "claim", but in cross-examination was
explicit that the cause of the cut wound he found on the labia
majora was due to a genital ulcer disease, rather than violent sexual
intercourse. Secondly, it is apparent that the court indirectly
shifted the onus
of proof to the defence where it observed that forceful sexual
intercourse and failure of the appellant to persuade the deceased to consent
were not ruled out. The onus
was on the prosecution to adduce evidence that
would rule out possibility of consent. Thirdly, we think that the court
also erred in speculating that because the appellant was an aids patient
he failed to persuade the deceased to have sex with him. There was no iota of
evidence on
her knowledge of his affliction or attitude towards it. The only
evidence from which the court could lawfully deduce that the appellant
used
violence on the deceased, and on which the trial court mostly relied, was that
the deceased sustained injuries. There is, however,
a lack of nexus
between those injuries and sexual intercourse. True they may have
been inflicted in the course of forcing her to have sex. Equally
they may have been inflicted in an assault unrelated to sex. We do not
find any weight in the evidence of a torn knickers found in the handbag
as no attempt was made to describe the nature of the tear. Much as the
circumstantial evidence raises strong suspicion that the sexual intercourse was
not consensual
as asserted by the appellant, we are unable in the
circumstances to say that it leads to only one irresistible inference
that the sexual intercourse was through force. Therefore, ground 3 succeeds.
In the last ground of appeal the appellant complains that the Court of Appeal
erred in upholding the sentence, which the trial court
imposed without taking
the period spent on remand into consideration. Counsel for the appellant argued
that the constitutional requirement
to take such period into consideration is
mandatory and must be complied with irrespective of the length of the
period. In reply, counsel for the respondent submitted that the Court of
Appeal had taken the remand period into consideration and thereby cured
the irregularity.
The appellant spent less than two months on remand
before his trial. The appeal against sentence in the Court of Appeal was
on the ground that the sentences were harsh. On its own initiative,
the
Court of Appeal observed that Article 23(8) of
the Constitution enjoins a trial court, when
sentencing, to take the period spent
on remand into consideration, and noted that the
trial court in the instant case had omitted to do so,
but that the omission was not criticized. The court
then went on to say -
"The omission to take into account
the period that the appellant spent on remand in our view did not occasion any
miscarriage of justice.
The sentences imposed, were within the range of similar
sentences that this Court and the Supreme Court have imposed from time to
time
for offences of this nature." Undoubtedly, the
Court of Appeal regarded the said omission to
be an error, which it ought to rectify. However, upon considering
the period that the appellant spent on remand
it concluded that the sentences imposed by the
trial court were just. We are unable to fault that. The
constitutional requirement ranks the period spent on remand among the several
factors to be weighed in assessing the term of imprisonment to impose on
a person convicted of a criminal offence. It must not be
construed as a provision of a formula of discounting the
sentence. This ground also fails.
In the result,
we allow the appeal partially. We quash the conviction of rape and
set aside the sentence of 10 years imprisonment. We dismiss the appeal against
conviction for manslaughter and confirm the sentence of 8 years
imprisonment.
DATED at Mengo this 1st day of November 2005.
B.J. Odoki
Chief Justice,
J.W.N.
Tsekooko,
Justice of Supreme Court
A.N. Karokora
Justice of
Supreme Court
J.N. Mulenga
Justice of Supreme Court
G.W. Kanyeihamba
Justice of Supreme Court.
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