[2005] UGHC 135

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT FORT PORTAL $HCT = 01 - CR = CN = 0017/2002$ (ARISING FROM MSD-CO-332/05 MASINDI) ABITEGEKA IBRAHIM .................................... **VFRSUS**

## <table><tbody>UGANDAPROSECUTOR</tbody> BEFORE: THE HON. MR. JUSTICE LAMECK N. MUKASA JUDGMENT:-

The appellant in this case was charged before and tried by the Chief Magistrate's Court at Masindi on the offence of Indecently Assaulting a female Contrary to Section 122(1) (now Section $128(1)$ ) of the Penal Code Act. He was convicted of the offence and sentenced to ten $(10)$ vears imprisonment.

The appellant appealed against conviction and sentence on the following grounds:-

- 1. That the learned Chief Magistrate erred in law in not properly directing his mind to the requisite standard of proof in criminal cases especially when he shifted the burden of proof onto the Accused. - 2. That the learned Chief Magistrate erred in law and in fact in failing to properly and sufficiently direct his mind to the defence case. - 3. That the learned Chief Magistrate exhibited a High degree of bias during the trial when he arbitrarily denied the accused an opportunity to call his witness in accordance with the provisions of sections $126(2)$ of the Magistrate's Act. - 4. That the learned Chief Magistrate erred in law and fact in finding that the unsworn testimony of PW1 (a child of tender years) had been corroborated. - 5. That the learned Chief Magistrate erred in law and grossly misdirected himself when he found that PW1 was a truthful and credible witness. - 6. That the learned Chief Magistrate erred in law and fact when he convicted the appellant in absence of exhibits which were material for proposes of establishing the ingredients of the offence of indecent assault. - 7. Tat the learned Chief Magistrate erred in law and fact when he failed to properly evaluate the evidence before him - 8. That the learned Chief Magistrate improperly exercised his judicial discretion when he imposed a harsh and excessive punishment on the accused.

Foremost, I wish to comen on the manner in which the learned trial Chief Magistrate wrote his judgment. Sectior. 136(1) of the Magistrate Courts Act provides that a judgment should contain:-

- Point or points for determination. $(i)$ - The decision on those points.and $(ii)$ - The reason for the decision. $(iii)$

The trial Chief Magistrate in his judgment reproduced the evidence of each of the five prosecution witnesses, that $\epsilon$ f the defence, considered the burden of proof, outlined the

ingredients of the offence and then proceeded to state:-

" Basing on the evidence as a whole. I would find that the assault was unlawful and indecent. This can be derived from the testimonies of PW1, PW2, PW3 and PW4. The victim told her neighbours about the incident immediately they returned from fetching water. She also told her father after the neighbours reported to him. I would find that the victim's story has been corroborated in material particular by the evidence of PW2, PW3, PW4 and PW5. So I would find the evidence truthful and credibly. I would believe the same to be a true account of what happened that day. I would dismiss the accused's explanation as a pack of lies not worth believing. The sexual assault was unlawful and indecent because of how it was done on a girl of 8 years. She could not consent and was only induced to agree to it.

All in all I would find that the prosecution has proved its case against the accused beyond reasonable a nult. I would convict him as charged U/S 221(1) of the Penal Code Act and pursuent to the Provisions of S 131 of MCA 1970".

A judgment can be made a, short as possible but it must indicate the trial Magistrate's findings on the facts and the application of the law to the facts disclosed by the evidence and determination on the essential elements which constitutes the offence.

The cardinal and fundamental principle of our criminal justice system as laid down in the case of <u>Woolimgton v/s DFP (1935) AC 462</u> and guaranteed by Article 28(3)(A) of the Constitution of the Republic is that an accused is presumed innocent until proved guilty by the prosecution or pleads guilty. The burden of proof rests upon the prosecution to prove the case against the accused person beyond reasonable doubt. Except in a few Statutory cases this duty doesnot shift to the accused. In the instant case the appellant pleaded not guilty the effect of which is that the prosecution must prove beyond reasonable doubt each and every one of the ingredients of the offence the accused person was charged with. The trial court then has a duty to make a specific finding on each of the ingredients of the offence see Mawanda Edward v/s Uganda SCCA No. 4 of 1999.

In coming to its final decision whether to convict or not, court is under a duty to evaluate both the prosecution evidence and the defence evidence as a whole. An accused person can only be convicted upon the strength of the prosecution evidence adduced during the trail and not on the weaknes, of the accused's defence or lack of defence.

In his judgment after reproduction of the evidence and an outline of the ingredients of the offence the learned trial Magistrate went ahead to find that the assault was unlawful and indecent without indicting the facts which led him to so find. He went further to find that the victim's evidence had been corroborated by the evidence of PW2, PW3, PW4 and PW5 without pointing out he areas of corroboration. He then went on to dismiss the accused's defence as a pack of lies not worth believing without indicating the basis for his belief and finding. Laccordingly allow grounds 1.2.4.5 and 7.

^I will now proceed to consider grounds 6.3 and 8 in that order.

The sixth ground of appeal ⁱ ^s that the learned Chief Magistrate erred in law and fact when he convicted the appellant n absence of exhibits which were material for purposes of establishing the ingredients of the offence of indecent assault. In his submission Mr. Nyamutale Counsel for the ippellant pointed out such necessary exhibits in this case /as the condom used by the accuseu. the complaint's knickers, the mat and the doctor's opinion. In her testimony the victim Tekereza Sharon stated that the appellant made her lie down on a papyrus mat and a blanket, removed her knickers and he put on a condom. The appellant then played \ ith her private parts and that when he removed the condom the witness saw some subHance that resembled pus. That the appellant used victim's knicker to clean his penis a: d threw the condom in the bush. PW2 and PW4 Rose Mary Kajura testified that after me incident the victim was examined by Dr. Senyonyi. A medical form was tendered n evidence by PW4 and received as exhibit P.l. PW4 further testified that the victim's knicker and dress were taken by the police. PW5 No. 27933 D/W/C Drayana Rose testified that she escorted the victim to Masindi Hospital where she was examined by Dr. Senya nyi. That the case was reduced from defilement to indecent assault. That the witness col ected from the scene of crime a papyrus mat identified to the witness by the victim as Lie mat on which she was told to lie and the witness had exhibited it at the police but that she could not see it in court.

Failure to produce an exhibi is not always detrimental to the prosecution's case, provided there is evidence of a careful and exact description of the exhibit made by the witnesses who saw it. See: Uganda vs Katusabe (1988-90)HCB 59. Charles Komwiswa v/s Uganda (1979) HCB 86. In the in.-tant case the victim's knicker and condom were material exhibits, particularly in respect to the pus like substance testified about by the victim. The nature of that substance v\ is of great importance to this case. There is no evidence whether the condom was e\ :r recovered from the bush yet it should have been. There is no evidence whether the sub stance on the condom and the knicker were ever examined to establish whether it was a substance which could have come from the penis. An analysis report by a chemist would have been valuable evidence for either side. See: Kaddu George William v/s Ugand.. SCCA No. ¹¹ of 1999. Further there was no explanation offered by the prosecution is to why the kn.cker. dress and the papyrus mat were not exhibited in court. This ground of appeal is accordingly allowed.

The third ground is that th: learned Chief Magistrate exhibited a high degree of bias during trial when he denied the appellant an opportunity to call his witness. On the definition of bias counsel for the appellant referred me to the case of Tumaini v/s Republic (1992)EA ⁴⁴¹ wh re it was observed that bias is not based on the judge's mind but rather on what a reas »nable man attending Court would think. Also in Blasio Sengendo & Anor v/s Ugaiv a CT. Appl. No. 27 of 1990 it was stated :-

" *Bias may be eslabt shed against a pc rson sitting in ajudicial capacity on one of two grounds. The fu st is pecuniary interest in the subject matter. The second is bias in favour ofone side against the other. Bias therefore means a real*

likelihood of an operative prejudice whether conscious or unconscious. In considering the possibility of bias, it is not the mind of the judge which is considered but the in pression given to reasonable persons.......".

See: also Metropolitan Properties Company FGC Ltd. y/s Langon (1969)10 KB 577. Section 128(3) of the Magistrate Courts Act provides:-

"(3) If the accused person stated that he or she has witnesses to call but that they" are not present in court, and the court is satisfied that the absence of those witnesses is not due to any fault or neglect of the Accused person, and that there is a likelihood that usey could, if present, give material evidence on behalf of the accused persons, the court may adjourn the trial and issue process, or take other steps, to complete the attendance of those witnesses".

The court record shows that the appellant gave his testimony on 3^rd July 2002. At the end of his testimony the appellant applied for an adjournment to call one Muhammed as his witness. The Application was granted and hearing adjourned to $9^{\text{th}}$ July 2002. This is an indication that the trial Cour was satisfied that if present Muhammed could give material evidence on half of the accu ed person. However on 9^th July 2002 the appellant's witness was not in court and the appellant applied for another adjournment. Court ruled that " the defence case closed as the accused seems to have failed to secure the attendance of his witness". In otherwords the application for an adjournment was rejected.

In this case the appellant was unrepresented, therefore the court was under a duty to avail him all possible assistance. When the court granted the appellant the first adjournment there is no evidence that the learned trial Mag strate complied with the provisions of Sub-Section 3 of section 128 above which required him to "issue process, or take other steps," to compel the attendance of those witnesses", more particularly where the appellant was unrepresented. There is no evidence to show that the appellant's witness' non-attendance was due to any fault or neglect of the appellant. Courts are supposed to be userfriendly. The conduct of the learned trial Magistrate where the appellant was unrepresented and where no witness summons were issued to compel Mohammed to at end Court was every likely to give wrong signals and be misin erpreted as bias by any reasonable man attending court. Accordingly the third ground of appeal is allowed.

In the final result I find that the appellant's Constitutional right to a fair trial was greatly $\frac{1}{2}$ prejudiced. The appeal is therefore allowed, conviction quashed and sentence set aside. The appellant is set free unless held on other lawful charges.

LAMECN N. MUKASA JUDGE / $10/3/2005$ .