[1991] UGSC 22

# IN THE SUPREME COURT OF UGANDA

### AT MENGO

#### (CORAM: WAMBUZI, C. J., PLATT, J. S. C., & SEATON, J. S. C.)

# criminal appeal no. ³⁴ or 1989

#### BETWEEN'

# ABASI KANYIKE appellant

AND

#### UGANDA RESPONDENT

(Appeal against conviction and sentence of the High Court of Uganda at Kampala by (Hon. Justice M. K. Kalanda) dated 10/11/39)

#### IN

#### HIGH COURT CRIMINAL SESSION CASE NO. 37 OF 1989

#### JUDGMENT OF THE COURT

of assault with intent to rob, in fact, although the learned Judge called it ''assault with intent to steal;,» The section of the Penal Code Act quoted and relied upon was Section .274 (1) and (2) (b). Assault with intent to steal would fall under Section 275» If Section 274 is relied upon then corporal punishment is mandatory under Section 274 A« sentenced to 7 years imprisonment, there being no mention of corporal punishment. The Appellant Abasi Kanyike was convicted on an alternative count The Appellant was

The Appellant was acquitted of an attempt to murder contrary to Section 297 of the Penal Code.

The Appellant was convicted with iris co-accused one Emmanuel Kashaka on the alternative count; Emmanuel was sentenced to five years imprisonment .

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paper trial. No witness was called for the prosecution. The only statements given in Court were those of the Appellant and his co-accused. by the witnesses to the Police were read out and accepted. The defence case. In particular, the statements given by the two accused under caution were retracted and repudiated: and the defence of each accused was a denial of guilt for stated reasons; in the case of the Appellant the defence was self defence, taking any part in the fight, and went away when he heard the fight going on upstairs. The trial was a while in tho case of Emmanuel, he denied statements, however, contradicted some of the facts of the prosecution For the Prosecution, the statements made

The outline of the case is therefore as follows. The accused both pleaded not guilty. (The typed record does not show that, but the original record shows that both accused pleaded not guilty to each count in the amended charge sheet)•

of the prosecution witnesses at the preliminary hearing. Those statements were read out and admitted, including the cautioned statements made by each accused to the Police. Those statements would show that on the morning of 15th SeptCi.iber 198? at 6. JO Appellant and Emmanuel entered the complainant's house, found him on the stairway caused him to retreat into his bedroom and there beat the complainant. The latter, however, defended himself well enough to persuade the intruders to abandon their design and make their escape. The Appellant was well known having boon employed by tho complainant as a gardener. Emmanuel was identified correctly on an identification parade• It was clear from the cautioned statement that the attack a.m. the Secondly, the Defence Counsel took no objection to any statement

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had been launched with the intent to steal, using violence; but then was given up-

Thirdly, indicating that there was a defence outside the admitted facts, either of law or fact. a submission of \*'no case to answer" was put forward,

In these circumstances one would have thought that the trial had ended, in the sense that the pleas must have been changed. But what happened next was that the accused gave defence statements challenging the facts, and retracting the cautioned statements. Can that be allowed?

having been made voluntarily, and asserts that they should not have been admitted- It may be that to some extent the learned Judge also ho allowed the defence to be put forward. Ho simply disbelieved it and returned to the admitted facts. The question repeats itself, can that be allowed? accepted that a late challenge could bo made to admitted facts, for The Appellant appears to contend that it can be, for the memorandum of appeal challenges the acceptance of the cautioned statements as

Insofar as the voluntariness or otherwise, of confessions given under caution, is concerned, it is not possible to find that they are voluntary in the course of analysing a defence- That can only be trial within a trial, during the prosecution case- If the Judge admitted the confessions because they were not objected to during the preliminary hearing, it was too late to challenge them in the defence, as Counsel for the Defence must have known. Tha^t is made clear by Section 64 (J) of the Trial on Indictments Decreedone by a

memorandum filed under Section 64, it is deemed to have been proved. The answer to defence to dispute the admissibility of the confessions. They had been proved. fact or document is admitted or agreed in a Once a the question above therefore is, that the Judge could not allow the

Similarly, the defence could not challenge the nature of the assault on the complainant. It was deemed proved to have been an unprovoked attack by the two accused acting jointly. It was proved from the confessions to have been with the intent to steal\* Whether it was a case of attempted robbery or merely a case of intent to ^a matter of inference. Self-defence and non-participation had been deemed disproved. Why then was the defence put forward or allowed to be put forward? steal was

Various possibilities arise. Perhaps the parties did not fully appreciate the procedure. Perhaps Defence Counsel did not fully appreciate his instructions. Perhaps tnc accused changed their minds. Something happened to permit the accused to plead not guilty to the charges, and almost immediately after, almost in the next breath, for them to admit the whole of the prosecution case. That change could signal either that the accused had not intended to plead not guilty, or that they had a defence in law or fact outside the admitted facts, or that there was confusion. The learned Judge did not inquire what was happening. He allowed Defence Counsel to blunder on, and call the accused to give their defences\* At least one thing is clear. There was no defence in law or fact outside the admitted facts. The result is that there is ambiguity over the conduct of the defence. The accused had pleaded not guilty and wanted to defend themselves on

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facts• There was to be no change of plea\* No admissions could then be made; but they were made in a wholesale manner, viz the whole case for the prosecution# The two situations are irreconcilable, and the possibility is that the accused did not understand why they were admitting the' prosecution case. convictions to stand, since it may. ho that the real issues have decided. Thus, it is not safe to allow the not , •- been

Wo allow the appeal, set aside the conviction and sentence trial de novo. The Appellant is remanded in custody for that purpose. Emmanuel is to be called before the Registrar of this Court, informed of this decision, and asked if he wishes to appeal. The Registrar will take the necessary action if Emmanuel chooses to appeal. imposed upon the Appellant, and order a

Before we leav this appeal? howuv of the Trials on Indictments Decree may ba pertinent. r, some reflections upon Sec. 64

#### Section 64

We venture to think that what the legislature had in mind in that the Court itself should draw up, civil case, and admitted documents, which are not in dispute. (Compare KAHYANKOLE V. R. (1972) E. A. 308 at p-310 obiter). towards the proof of the same point, are conflicting as to time and place and details of that sort. If both statements are admitted, there is sometimes confusion as to what has been admitted. If the Judge, note to the effect that the incident occurred between time, or in or about a certain place, or indeed at such and such a however, has made a It has been noticeable, on Section 64(2) of the Decree, was occasion, that the statements of two or three witnesses, though tending like admitted issues in a a memorandum or list of facts

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some specific time and place, the matter is clear. One witness may be preferred to another on those points. This may be important in relation to an alibi. It is especially important in technical matters, that conflicts in the admitted evidence should be dealt with. The post mortem report, let us say, states that the wound was on the left, while the witnesses all say the right; the post mortem report does not notice more than the injury which caused death, yet the witnesses say there were other injuries; the Doctor's statement does not correlate the injuries he saw with the alleged manner in which Hence even if the post mortem report might not be challenged, it may still be necessary to call the Doctor. few examples of the matters which should be attended to at the preliminary hearing. **If** the Judge knows what has been admitted, and what has not been admitted, much clearer idea of the issues for trial; what witnesses are required and what length of time the trial will take. The parties are also clearer a^s to what they have accepted and signed for, and thus what tasks lie ahead of them. he has a These are a they were inflicted, or the alleged weapon or weapons used.

Secondly, the proviso to Section 64 (J) must always be borne in mind. It states:-

> •'Provided that, if during the course of the trial the Court is of opinion that the interests of justice so demand, the Court may direct that any fact or document admitted or agreed in a memorandum filed under this section be formally proved".

It is this provision which keeps in the forefront, the need for the Court to be flexible in the calling of evidence, in the interests of justice. It is obvious that all the issues must be tried thoroughly,

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life is at stake. In general, it is undesirable that there should be wholesale paper trials. There must be very few cases indeed, in which the Court tried beyond reasonable doubt, without calling some witnesses. It ha^s fact is admitted it cannot be challenged in the defence. The Court must therefore be ready to call evidence to make sure that problems do not arise later. In this regard, for example, to be sure that the quality of the complaint is superior to that of the defence, it must be preferable that the main complaint is given in evidence; that confessions are seen to be voluntary; and that any conflicts in the prosecution case of a serious nature have been opened up to cross-examination. The most useful part of this procedure is to save time and expense in not calling witnesses whose evidence cannot be in doubt and is in fact not disputed. But even they, on occasion, turn out to be important in the chain of evidence or as rubutting evidence, to make sure that some object, for instance, has not been planted or interfered with. What may have looked like evidence which was not in doubt at the beginning of the trial, may suddenly become important during the trial as for instance, when the defence turns out to be an alibi. The final test is whether the evidence put forward allows the Court to decide the real issues to be tried. because these are criminal proceedings, and sometimes a tine), that once a become clear in this appeal (though not, v/e are sure, for the first can confidently assure itself, that all the issues have been properly

DATED at Mengo this 19th day of April, 1991-

Signed:

S. W. W. ^W'AMBUZI CHIEF JUSTICE

**s/....**

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H. G. PLATT JUSTICE CF THE SUPREME COURT

E. E. SEATON JUSTICE CF THE SUPREME COURT

I CERTIFY THAT THIS IS

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A TRUE COPY OF THE ORIGINAL.

B. F. B. BABTGUMIRA REGISTRAR SUPREME COURT