[1992] UGSC 16


$1,11411$ .

AT. MENGO

(CORAM: MANYINDO, D. C. J., ODER. J. S. C. & PLATT J. S. C.)

CRIMINAL APPEAL NO. 12/91

$\underline{B} \underline{E} \underline{T} \underline{W} \underline{E} \underline{E} \underline{E} \underline{N}$

ERIEZA KASAIJA

**UGANDA** Yw.

i papaki representa para manamata (j. 1 **RESPONDENT** (Appeal against conviction and sentence of the

$A$ $N$ $D$

High Court decision holden at Fort Portal (Hon. Mrs. L. E. M Kikonyogo) dated the 27th Nov. 1990):

HIGH COURT CRIMINAL SESSION CASE 99/90

## JUDGMENT OF THE COURT

The Appellant Erieza Kasaija was convicted of the lesser charge of simple robbery contrary to sections 272 and 273 (1)(b) of the Penel Code Act, and sentenced to 13 years imprisonment; 12 strokes of corporal punishment, 5 years police supervision and ordered to pav shs 20,000/- as compasation to the Complainant. The Appellant appeals against conviction and sentence.

The judgment of the learned Judge was well analysed on the whole. cept for the question of sentence, we would respectfully agree in the final conviction.

Mr. Akampurira representing the Appellant brought clearly $\mathbf{1}$ enough the two main lines of the evidence agains; the Appellant. The latter had been allegedly seen by the complainant, Daudi Bahamanya (PW3) and his tenant Kasaija s/o Bozana (PW4) at the time the robbers

broke into the Complainants' Bahanya's house, on the night of 17th December, 1985. The seconds piece of evidence was that the

Appellant had handed the stolen bicycle to one Mpanuka, and some $\mathcal{L} = \mathcal{L}$ kitenge cloth to the witness Stephen Agaba (PW5) on the following $\cdots \cdots \cdots$ morning 18th December, 1985. The Appellant left the bicycle at w $\cdots \ldots \cdots$ Stephen's house for repair by Mpanuka later on. In the meantime some people took Stephen, the bicycle and cloth, first to Kagote N. R. A. camp, and later to the Police Station at Fort Portal. $As$ a result of what the Appellant said about the bicycle and cloth Stephen was released and issued with a note to that effect. The the set of the second Appellant, in fact, had exonerated Stephen, although to say more than that, might involve inadimissible evidence.

The Appellant's defence was that he was not in possession of the $\cdots \qquad \qquad \cdots$ stolen property, they were planted on him by the Police, who showed $\cdot \cdot$ the Appellant to him. The police said that Bahamanya should look to the Appellant as the thief, and then Banamanya took away his bicycle. and cloth. Yet the Appellant admitted that he had been in custody with Stephen's arrest or redease in the defence statement.

The learned Judge discarded the Appellant's identification by the tenant Kasaija (PW4). She accepted the evidence of the Complainant Bahamanya, and found that the Appellant had been cound in recent $\mathcal{A} = \mathcal{A}$ possession of the Complainant's property, on the strengh of Stephen Agabals evidence. The defence had been unable to explain the Appellants Pessession of it. It seems that the learned Judge used the evidence $\cdots\quad \cdots$ of recent possession of stolen property to support the identification $\cdots\cdots$ of the single identifying witness. Bahamanya. She finally held that a $\cdot$ : !: $\mathcal{M} = \mathcal{M}^{\mathcal{M}}$ $\mathcal{M}^{\mathcal{A}}_{\mathcal{A}}\mathcal{M}^{\mathcal{A}}_{\mathcal{A}}\mathcal{M}^{\mathcal{A}}_{\mathcal{A}}\mathcal{M}^{\mathcal{A}}_{\mathcal{A}}\mathcal{M}^{\mathcal{A}}_{\mathcal{A}}\mathcal{M}^{\mathcal{A}}_{\mathcal{A}}\mathcal{M}^{\mathcal{A}}_{\mathcal{A}}\mathcal{M}^{\mathcal{A}}_{\mathcal{A}}\mathcal{M}^{\mathcal{A}}_{\mathcal{A}}\mathcal{M}^{\mathcal{A}}_{\mathcal{A}}\mathcal{M}^{\mathcal{A}}_{\mathcal{A}}$ $\mathbb{C}^{\mathbb{C}} \longrightarrow \mathbb{C}^{\mathbb{C}} \longrightarrow \mathbb{C}^{\mathbb{C}}$ dangerous instrument had not been used and so convicted the Appellant. $\ldots \ldots \ldots$ of simple robbery. $\cdots$

$\cdot$ $\cdot$

$3/...$

We would agree with Mr. Akampurira that if $Kasaija$ (P#4) could not be relied upon, neither could the Complainant (PW3)'s evidence be relied upon to identify the Appellant. The Appellant had been shown to these two witnesses in very prejudicial circumstances, so much so that their recollections of who happened to take part in therobbery, were almost certainly influenced at the Police station. In situations. like these the Police often have several options; they can show the accused to the victimes, and if the latter recognise the accused the Police must work on other evidence; or, the Police can show the accused to one witness, who has not known the accused before, on an identification parade. If the accused/successfully identified, other evidence will corroborate the identification. Alternatively, identification. can be abandoned and other evidence relied upon altogether. In the case before the learned Judge, it would have been wiser to have abandoned the identification evidence, and relied on that of recent poseesion. This the stand taken by Mr. Kabali on this appeal. It is a pity that he did not take that stand at the trial. At length the case boils down to unreliable evidence of identification (not necessarily because the witnesses could not identify the Appellant 🐩 🦩 at the scene of robbery); and secondly firm evidence of recent possession. On this second point it was objected that the burden of proof ! had been shiften to the Appellant. The doctrine of recent possession, a species of circumstantial evidence, is that if an accused is in recent possesion of stolen property, for which he has been un ble to give a reasonable explanation; the presumption arises that he is either the thief, or the receiver of the stolen goods, according to the cirmumstances. Hence once the appellant has been proved to

have been found in recent possession of stolen property. it is for the Accused to give a reasonable explanation, e will discharge this onus on the balance of probabilities, whether the explanation could reasnably be true, If he does so then an innocent possibility exists which negatives the presumption to be drawn from the other circumstancial evidence,

In this case, whe evidence of Stephen Agaba was clear that the Appellant had the vicycle and cloth on the morning of 18th December. Against it, the main defence was that the Appellant did not have. possession of the property. It was planted on him. The Appellant had earlier expnerated Stephen. If the defence had been consistent Stephen could not have been set free. However, the learned Judge, with some indulgence towards the Appellant, interpreted his defence. statement as meaning that he could not have oven in possession of the stolen goods because one Kisembo had arrested him, and the Appellant could not then have been at this robbery. The combined effect of an explanation of recent possession and an alibi is of course a difficult matter to analyse. An alibi need not be set up, the explanation must be given. But both need only be reasonably possible - neither has to be proved

by the accused. In so far as the learned Judge was dealing with the $\mathcal{L}^{\mathcal{L}}_{\mathcal{L}} = \mathcal{L}^{\mathcal{L}}_{\mathcal{L}} \oplus \mathcal{L}^{\mathcal{L}}_{\mathcal{L}} \oplus \mathcal{L}^{\mathcal{L}}_{\mathcal{L}}$ $\ldots \, \ldots$

case of recent possession she was right to observe that in the absence of explanation of the accused to account for his possession" that would

give "rise to the presumption that the accused is either a thief or

reciever of such property" 2

It is questionable whether the Appellant did set up an alioi. Not doubt he was under arrest on the evening of the 18th December, $\cdots:$ as confirmed by Pastor John Baguma (PW6). But the Appellant did $\theta_{\rm{eff}}=0$ not say when he was arrested by Kisembo. It seems that it was during the day of 18th December. Alibi defences can be raised by inference, but they must be certainly raised either by direct evidence or inference. Here it was not certainly raised by either type of evidence. On the other hand, taking the learned Judge's interpretaion $\cdots$ into account, that an alibi was intended, it was certainly not of much weight as an alibi, and of no use whatever as a reasonable explanation denying recently possessed stolen property. What was the Appellant saying did he or did he not give the articles to Stephen because he never took part in the robber $\varphi$ If one cannot find out what the defence really means, it can rarely be a reasonable explanation. On the face of it, the defence might just as well have been simply a statement that the appellant had been arrested by Kisembo and restrained at Kagote, and on the same day at 6.30 p.m Stephen was brought in. He had not taken part in the robbery, a matter apart. from Kisembo's affairs. In these circumstances, we agree with the learned udge that the evidence. of Stephen was innocent and acceptable. Stephen was released arter the Appellant exonerated him. The defence was different, but raised no $\mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{A} \leftarrow \mathcal{$ reasonable explanation as to why the Appellant should have possession of $\cdots \cdots$

the Complainant's bicycle and cloth. These articles, the Appellant agreed in his defence, had been returned to the Complainant described Settler and the third for the work way. the events in the Police Station, there could be no question of of the contract $\sim$ ...

$\sim$

$6 = 30$

a "plant" by the Police. It was a fortuitous that the Complainant saw his bicycle at the Police Station, he identified it by certain $\mathcal{M}(\mathcal{M}_\mathcal{F})$ marks, and thereafter the Appellant was called. The learned Judge was entitled to reject the defence of this point of fact. Altogether the learned Judge came to a sound conclusion that the Appellant.

was found in possession of the stolen bicycle and cloth on the morning after the robbery On this finding the inference of theft was most reasonable. Accordingly the conviction of robbery and sound. It was also reasonable to reduce the charge from aggravated robbery to simple robbery, having regard to the inconclusive evidence of gunfire. No gun was fired in the presence of any witness.

We would take this opportunity to endorse the learned Judge's comments on the use of identification parades, and on the desireability of producing the exhibits. This charge emanated from a period of war. we hope that the peaceful circumstances which now prevail, will allow. regular methods of prosecutions to become the general rule.

In the reusit we dismess the appeal agains conviction, noting that grounds 4,5 and 6 were abandoned, and that ground 3 became.

unnecessary to consider, once the identification evidence was abandoned by the Court. The main grounds have been answered and rejected. The question of sentence has given us much more concern than the conviction. But having expressed our doubts upon the point, both $\epsilon\in\mathfrak{C}_{\mathfrak{m}}$ Counsel accepted that 13 years imprisonment was manifestly too severe. First of all the amount of force used was not severe; it was not

certain that the Appellant, or his friends used a zun. Seconday, the Appellant had been in custody from December 1985 to November 1990 a. period of 5 years in round figugures and a long period of remand *amount* requiring attention. The sentence of 13 years imprisonment would in all to 18 years custody. Even 13 years is out of keeping with

these factors and that the Appellant was a first offender.

$\mathcal{L} = \mathcal{L} \times \mathcal{L} \times \mathcal{L}$ $\mathcal{L} = \mathcal{L} \mathcal{L}$ $\mathcal{L} = \mathcal{L}$ the sentence of imprisonment imposed on him will be set axk aside. 计算机 计不能差异构 的复数人名英格兰人姓氏法 化四苯甲 $\mathbb{R}^n \times \mathbb{R}^n \times \mathbb{R}^{n \times n}$ and a term of seven years imprisonment will be subsitituted. $\cdots$

The order for corporal punishment will read 12 strokes of<br>corporal punishment, it being incorrect to describe the instrument<br>to be used. The order to be used. The orders for Police Supervision and compansation will. $\mathbb{R}^{n} \times \mathbb{R}^{n}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ and $\mathcal{L}$ $\mathcal{L}_{\mathcal{M}}$

stand.

Apart from the variation noted above; the appeal against sentence is dismissed. $\mathcal{L} = \{ \mathcal{L}_1, \mathcal{L}_2, \mathcal{L}_3, \mathcal{L}_4, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal{L}_5, \mathcal$

Delived at Menro thas 26th day of February 1992:

$\sim 10^{-4}$

$\mathcal{L}^{\mathcal{L}}$

일반 전체 전체 전체 전체 전체 전체 전체 전체 전체 전체 전체 전체 전체

$\cdot\,.$

$\mathcal{L}^{\pm}$

$\mathcal{L}^{\mathcal{L}}$

signed; signed:

$\mathcal{L} \leftarrow \mathcal{L}$

$\mathcal{F}^{\ast}=\mathcal{F}$

$\mathbb{R}^{n_{\mathcal{C}}(n_{\mathcal{C}})}$

$\ldots$

$\sim$ $\sim$

$\mathcal{G}_{\mathcal{I}_{\mathcal{I}_{\mathcal{I}}}} = \mathcal{I}_{\mathcal{I}_{\mathcal{I}}}\mathcal{I}_{\mathcal{I}_{\mathcal{I}}}$

S. T. Manyindo<br>Deputy Chief Justice<br>Deputy Chief Justice<br>A. H. O. Oder<br>Justice of the Supreme Court $\mathcal{L} = \left\{ \begin{array}{c} \mathcal{L} = \left\{ \begin{array}{c} \mathcal{L} = \left\{ \begin{array}{c} \mathcal{L} = \left\{ \begin{array}{c} \mathcal{L} = \left\{ \begin{array}{c} \mathcal{L} = \left\{ \begin{array}{c} \mathcal{L} = \left\{ \begin{array}{c} \mathcal{L} = \left\{ \begin{array}{c} \mathcal{L} = \left\{ \begin{array}{c} \mathcal{L} = \left\{ \begin{array}{c} \mathcal{L} = \left\{ \begin{array}{c} \mathcal{L} = \left\{ \begin{array}{c} \mathcal{$

$H,G_{\bullet}$ Platt. Justide of the Suprme court

$\mathcal{L}^{\mathcal{L}}_{\mathcal{L}}\left(\mathcal{L}^{\mathcal{L}}\right)$

<pre>B. F. B. BABIGURIRA<br>REGISTRAR SUPREME COURT.</pre>