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IN THE SUPREME COURT OF UGANDA
HOLDEN AT MENGO
CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA
AND
KANYEIHAMBA JJ.S.C.
CRIMINAL APPEAL NO. 35 OF
2003
BETWEEN
KIYENGO
ZAVERIO::::::::::::::::::::::::::::::::::::::APPELLANT
AND
UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
(Appeal from the judgment
of the Court of Appeal (Mukasa-Kikonyogo DC J,
Mpagi-Bahigeine, and
Kitumba JJ.A.) at Kampala in Criminal Appeal No.24
of 2001 dated 3.2.03
JUDGMENT OF THE COURT.
Kiyengo Zaverio, the appellant, was convicted by the High Court of Uganda,
(Mukiibi J.) sitting at Masindi, for the murder of his father, Nsereko
John Mawa, the deceased, and was sentenced to death. His appeal to the Court of
Appeal was dismissed,
hence this second appeal.
The
evidence upon which the court based the appellant's conviction is
brief. On 20.11.99, at about 4 p.m., the deceased visited the appellant's
home.
He found the appellant and a neighbour, one Birungi Alex, PW2, seated on a bench
outside the appellant's house, drinking enguri.
He joined them. The three
continued drinking up to about 7 p.m. when the appellant invited Birungi to the
kitchen and then left him
inside with Byabali Praxida, PW3, and Pauline Zikuza,
PW4, the appellant's wife and daughter respectively. The appellant returned
to
the deceased who had remained outside sitting on the bench alone. He then hit
the deceased on the head twice, using the back of
an axe. The deceased fell
down, and one of his eyes was dislodged from its socket. Blood flowed from the
eye socket and the nose.
A post mortem examination of the deceased's body
subsequently revealed that the deceased had sustained a crushed eyeball and
occipital
laceration leading to internal haemorrhage and brain contusion that
caused instant death. There was also evidence that when people
came to the scene
upon word going round that the deceased had died, the appellant chased some away
threatening them with violence.
At the trial the cause of the fatal injuries was disputed. The prosecution contended that the deceased sustained the injuries from the two blows inflicted by the appellant as testified by Pauline Zikuza. The appellant on the other hand denied hitting the deceased and testified that the deceased sustained the injuries from falling off the bench due to drunkenness. After considering the evidence the trial court accepted the prosecution case and held that the appellant had hit the deceased as testified by his daughter. The Court of Appeal came to the same conclusion after re-evaluating the evidence. In this appeal, the appellant, quite appropriately in our view, does not seek to challenge that concurrent finding of the two lower courts. He only seeks to challenge the finding of mens rea. The sole ground of appeal in this Court is that -
"The learned Justices of Appeal erred in law when in their re-evaluation of the evidence adduced at the trial, they misdirected themselves on the defence of intoxication."
Mr. Mubiru, learned counsel for the appellant, criticized the Court of Appeal
for upholding the trial court's refusal to avail the
appellant the defence of
intoxication. He maintained that the ground for the refusal,
namely that the defence was not raised and had actually been disowned by the
appellant and his counsel was
erroneous. He submitted that the law enjoined the
court to consider, and avail to an accused person, every defence disclosed by
the
evidence before it, and cited Clifford Patrick vs.
R. 72 Cr. App. R. 291, in support of his submission. He
maintained that the Court of Appeal had misdirected itself in this regard.
Learned
counsel argued that if that court had addressed the proper question,
namely if, in view of the evidence of the appellant's drinking,
he had had the
necessary mens rea, it would have concluded that the
prosecution had not proved beyond reasonable doubt that he had. In conclusion
counsel submitted that
contrary to the law, the appellant's conviction was based
on the weakness of the defence, for failure to plead intoxication, rather
than
on the strength of the prosecution case. In reply, Mr. Murumba, the learned
Principal State Attorney submitted that the case
of Clifford Patrick
vs. R (supra) was distinguishable because, in that
case, unlike in the instant case, the defence had admitted the killing but
relied on
intoxication to show that the necessary intent was not proved. He
stressed that in this case, the appellant expressly denied being
drunk.
In the Court of Appeal, the fifth ground of appeal was that
the trial court erred in holding that the appellant had killed the deceased
with
malice aforethought despite evidence of intoxication. In its judgment, the Court
of Appeal, after observing, rightly in our
view, that the court has to avail an
accused person with a defence available on the evidence before it even if not
raised by him,
considered at length if the defence of intoxication was available
to the appellant, in view of the prosecution evidence, which suggested
that he
was drunk at the material time. In the course of reevaluating the evidence,
however, the learned Justices of Appeal made
two observations that have given
rise to the criticism of misdirection. After noting the prosecution evidence,
which showed that
at the material time the appellant was drunk, they observed
-
"The dilemma in this case is that both the appellant and his counsel
at his trial did not only fail to raise intoxication or drunkenness
as a defence
but disowned it." In the end they concluded thus -
"We are, therefore, not persuaded by counsel for the appellant, to avail to the appellant the defence of intoxication under s.13(4) of the Penal Code. To do so would be tantamount to putting a defence into his mouth."
Clearly, these observations standing alone would
amount to misdirection on the fundamental principle that the burden of proof in
a
criminal trial, remains on the prosecution throughout and, except in special
cases, never shifts to the defence. The duty of the
court to avail to an accused
person every defence disclosed by evidence before it, even where
the accused does not take advantage of it, is founded on that
principle. Strictly, an accused person has no burden to raise a defence with the
exception of the defence
of insanity. Where, therefore, there is
credible evidence establishing a defence, the court should
not refrain from availing it to the accused for fear of "putting a defence in
his or her mouth". If, as contended
by learned counsel for the appellant, these
observations were the only basis on which the Court of Appeal rejected the fifth
ground
of appeal, we would not have hesitated to hold that the
misdirection vitiated the decision to uphold the conviction of
murder.
The case of Clifford Patrick vs. R
(supra), which counsel for the appellant sought to rely on, was an appeal
against a conviction for murder in a jury trial. There was
no dispute that when
the accused killed his victim he was under the influence of drink. The appeal
turned on the direction given
to the jurors by the trial judge on the issue of
drunkenness. He had directed the jurors to ask themselves if, at the material
time,
the accused person was in such state as to be incapable of forming the
requisite intention. The Court of Appeal held this to be misdirection,
as the
question in issue was not whether the accused person was incapable or capable of
forming the intention, but rather whether
by reason of the drink he had taken he
did not form the intention. On the ground that the jury had not been invited to
answer the
real question in issue, the conviction of murder was quashed and a
verdict of manslaughter was substituted. In that case the misdirection
to the
jury had been central to the decision to convict. If the jury had addressed the
real question in issue it may well have returned
a different verdict. The
misdirection in the instant case does not appear to be in a similar central
position to the decision to
uphold the conviction.
In their judgment, the learned Justices of Appeal directed themselves on the law regarding the issue of intoxication correctly when they said -
"Under section 13 of the Penal Code Act intoxication is not generally a defence to a criminal charge. That notwithstanding, it could become a defence if by reason of intoxication the accused became insane at the time but this would require a plea ....of insanity which is not the case here. The appellant disowned intoxication. He is not covered under that sub-section. However, under s.13(4) of the Penal Code, intoxication may be taken into account for the purposes of determining whether the accused had formed an intention to kill...
In accordance with the holding in ... Illanda s/o Kisigo vs. R (1960) EA 780 the onus is on the prosecution to prove beyond reasonable doubt that the appellant's judgment was not affected by the drink to disable him from forming the necessary intention...The test to apply as enunciated... in Ssessawo vs. Uganda (1979) HCB 122, was whether having regard to all the circumstances, including those relating to drinking, it could safely be said that the prosecution had proved beyond reasonable doubt that the accused had the requisite intent at the material time. We shall apply this test to this case later."
Subsequently, they applied the test to the facts and concluded thus -
"Having regard to all the circumstances in this case including the
aforesaid relating to drinking it could safely be said that the
prosecution had
proved beyond reasonable doubt that the appellant had the requisite intent to
kill the deceased at the material time."
In this conclusion the Court of Appeal was virtually in total agreement with
the learned trial judge who said inter alia -
"The accused's preparation to remove a possible eye witness and his effort to ensure that he had not been seen, in my view, show that his act was calculated or pre-conceived.... I find as did the assessors, that the prosecution has proved beyond reasonable doubt that the unlawful act committed by the accused person, and which caused the death of Nsereko John Mawa, was accompanied by malice aforethought"
We need only add that this concurrent finding of fact was amply
supported by evidence, and it cannot be assailed. We are satisfied, that
the
misdirection in the observations of the Court of Appeal, was not
the basis for upholding the appellant's conviction for murder. The basis was
that the prosecution
proved malice aforethought beyond reasonable doubt. In our
view, the observations were in effect superfluous.
In the result
we find no merit in this appeal and accordingly we dismiss it.
DATED at Mengo this 13th day of April, 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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