[2023] UGCA 11

# ⁵ THE RBPUBLIC OF UGANDA

# IN THE, COURT OF APPE,AL OF UGANDA AT KAMPALA

lCoram: Musokc, (iashirabake & Luswata,.l.lAl

# CRIMINAL APPEAL NO.38I OF 20I9

(lrising fi'om ('riminul session No. 0010 o/ 201 9)

10 KASU. IA U,I)WAlal) API'F]LLANl'

### VlIRSUS

# UGANDA IIF:,SPONI)I]N'I-

llrising from the decision of Ilenry Kawesa, J, o{ the [ligh Cottrt of Uganda sitting ol Mpigi in Criminal Case No. 0010 o.f 2019 dated 27'h September 2019J

#### . IUIX;MIIN'I' OT' C()UR'I"

## lntroduction.

'l'he Appetlant, Kasuja lldward was indicted for aggravatcd defilcmcnt 129(3)( )(a) ofthc Pcnal Code Act and scntcnccd to 23 ycars of imprisonrncnt c/s 20

### Background to the Appeal

It was alleged that the Appellant on the on 25th Octobcr, 2017, at Maya Busembc in Wakiso District, pcrformed a scxual act on MJM a girl aged 4 ycars. 'l'hc appellant lived in the same neighbourhood with the victim's parents. On the fateful

date, when the victim's mother had gonc lor burial, thc victim went to a neighbour's house to watch tclcvision with her friend.'l'hc appellant also cntcred thc samc housc and told the victim to follow him up{o an incomplete housc. 'l'he appellant madc thc victim to lie down on a properly laid white sack.

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⁵ The accused removed the victim's knicker and then pulled out his penis and inse(cd it in the victim's vagina. When the victim cried out, he ordered her to keep quiet and threatened to beat her.

In the evening, when the victim's mother was bathing her, the victim cried as a result of pain in her vagina. When the mother asked hcr what caused the pain, the victim revealed the entire ordeal to her mother. The victim's mother rushed the victim to ^a nearby clinic, when the victim was examincd the mother was adviscd to report a case of defilement at police. The matter was lodged at police and thc appcllant was accordingly arrested and charged. 'l-he victim was medically examined and found with mild laceration around the vulva.

- The Appellant was dissatisfied with the decision of the trial court and hc appealed the decision on grounds that: 15 - l.'l'hc lcamcd Judge ened in law and fact whcn hc failed to appraisc proscculion cvidcncc alongsidc dcfcnce evidcncc and draw in[crcnccs olfact ofnot guilty in parlicular, thc absencc of police witncsscs thereby wrongly convictcd Appcllants of offcncc ofaggravatcd dcfilcmcnt. - 2. 'l hc lcarned Judgc errcd in law when hc Iailed to considcr thc fact that at thc date of the allcgcd oflcncc thc Appcllant's trial should have bccn hcard as child occasioning a miscarriagc ofjusticc.

#### 'I'hc Respondcnt opposcd thc appcal.

#### Representation 25

At the hearing, the Appeltant was represented by Mr. Seth Rukundo. -l'he Respondent was represented by Mr. Kyomuhendo Joseph. During thc hearing of this appeal, counsel lor both parties praycd that their submissions bc adopted .

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#### **Duty of this Court.** $\mathsf{S}$

The duty of this court as the first appellate court is provided for under **Rule 30(1)** (a) of the Judicature (Court of Appeal Rules) Directions S.1 13-10, which provides thus:

"On any appeal from a decision of the High Court acting in the exercise of its original jurisdiction, the court may reappraise the evidence and draw inferences of fact;"

This was re-echoed in Fr. Narsensio Begumisa and 3 others vs. Eric Tibebaga, SCCA No.17 of 2002, where court held that:

- "The legal obligation of the $1^st$ appellate court to reappraise the evidence is founded in the common law rather than rules of procedure. It is well settled 15 principle that on a 1^st appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witness" - Additionally, the court bears in mind that in evaluating the evidence on record, the $20$ burden of proof is upon the prosecution to prove the guilt of Appellant beyond reasonable doubt. The prosecution is enjoined to prove all the ingredients of the said offence to the required standard of beyond reasonable doubt. See **Woolmington Vs.** DPP, $(1935)$ AC 462. - In Miller vs. Minister of Pensions, [1947]2 ALLER 373, court held that the 25 standard should not be beyond a shadow of doubt, however the prosecution evidence should be of such standard as leaves no other logical explanation to be derived from the facts other than that the accused person committed the said offence.

Crond<br>Crond

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## ⁵ Preliminary objection.

Before we delve into the merits of the Appeal, counsel l-or the Respondent raised a preliminary objection under Rule 66 of the Judicaturc (Court of Appeal Rules) Directions S.l l3-10( hcrc referred to as the rules of this court), which is to thc eflcct that the Memorandum of appeal shall set forth concisely and undcr distinct heads , numbered consccutively without argulnent or narrativc , the grounds of objection to the decision appealed against, spcciffing, in thc casc olthe first appeal , the points of law or fact or mixed law and fact.

Counsel submitted that the first ground offendcd the above mentioned rulc bccausc it is stated in general terms. The said ground does not state the particular points of

law or facts being appealed from. Counsel prayed that this ground is struck off the record. 15

We have evaluated the said ground and we agree with the submissions of counsel for the Respondent that it offends Rule 66 (2) olthe Rulcs of this Court. -[he ground is general in nature and docs not state concisely the objection against the lower court

# decision. Flowcver, in the intercst of justice undcr Article 126(2)(c) ol the Constitution of the Republic of Uganda 1995, this court invokes its inherent powers under Rule 2(2) ofthe rules ofthis court to proceed and hear the appcal on its merits.

# Ground I

# Submissions of Counscl for the Appellant.

Counsel for the Appellant submitted that thcre was no evidcnce to provc that contrary to Section 129(3) and 4(a) Penal Code on 2511012017, thc Appcllant had Sexual act with MJM, a girl aged lbur years. Counsel additionally submittcd that Section ll of the Judicature Act Cap 13, gives Coufl of Appeal powers of Court of original jurisdiction when determining an appeal. Counsel submittcd lurthcr that 25

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⁵ Section 132 of the Trial on Indictments Act Cap 23 and Section 34 Criminal Procedure Code Cap I16, allows Appellant to appeal to Court olAppeal lrom FIigh Court acting in the exercise of its original jurisdiction.

Counsel submitted that there is no police officer witness that appcared to support the prosecutions'case.

- Counsel further submitted that the trial Judge erred in law when he convicted the Appellant on the uncorroborated testimony of PW3 MJM. Counscl citcd Maina vs. R,1970 E. A 370, where court held that in all sexual offences corroboration evidence is mandatory. I Ie submitted that non-production of the investigating olficer lclt ^a corroborative link betwcen the appellant and thc actual perpetuator. 10 - Counsel for the Appellant furthcr submitted that the evidcnce of PWI (lLosc Kirabo) and PW2(Ronald Mayiga) was inconsistent and contradictory. Counscl submittcd that the evidence of PW I and PW2 did not point to the Appellant as pcrpetrator of the offence under Section 129(2) and 4(a) ofthc Penal Code. 15

Counsel further submitted that there was no evidence ol'the proper identification of the Appellant as the perpetrator of the alleged offence against the victim MJM. Counsel argued that the victim was aged 3 years when shc tcstified and could not remembcr what happened the prcvious two ycars ago. 20

Counsel further submitted that the evidencc of thc appellant person remaincd unshakcn even through cross examination. Counsel submittcd that thc findings of

the trial Judge with regard to the participation of the Appellant was hypothetical theory of reasoning. 25

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#### 5 Submissions of counsel for thc Respondent.

Counsel for the Respondent submitted that from the reading of submissions ol thc counsel of the Appellant on ground l, thc main objection is thc lact that thc Respondent did not bring thc invcstigating policc olficer as a witncss. Counsel citcd Section 133 of thc Evidence Act, Cap. 6, which is to the elfect that no particular number of witnesscs are requircd to prove any particular fact. Counscl submittcd that the absence of the investigating officcr was thereforc immaterial sincc thc prosecution has proved beyond reasonable doubt. Counsel furthcr relicd on the Supreme court decision in Ntambala Fred vs. Uganda 'SCCA No.34 of 2015, where court held that,

15 "a conviclion can bc solely bascd on thc tcstilnony ol'thc cviction as a singlc rvitncss, provided thc courl llnds hcr lo bc truthful and rcliablc. As statcd by this court in Seu,unyuna l-iingslone vs. Ugturla S('('l No l9 o1 2006. tvhat nraltcrs is thc quality and not thc quantity ofcvidcnce"

20 Counsel lor the Itcspondcnt submitted that under scction 40(3 ) of thc '['rial on Indictments Act, Cap. 23, the unsworn cvidence ofa child oftendcr ycars cannot be relied upon unless corroborated by other matcrial evidence. Counscl submitted that in the current case all witnesses including the victim gave sworn evidencc. Counsel further submitted that scction 40(3) above does not apply to them. Counscl rclicd on decision of this court in Senyondo Umar vs. Uganda, Court of Appeal Criminal

25 Appeal No. 267 of 2OO7 which quoted with approval the case of Patrick Akol vs' Uganda SCCA No. 23 of 1992,

> "to sum up, lhc unsworn cvidcncc ol a child ntusl bc corroboralcd by sworn cvidencc, ifthcn thc only cvidcncc irnplicating thc accuscd is tlrat ofunsrvorn childrcn thc judgc must stop the casc. 11 makcs no diflcrcncc whcthcr thc child's cvidcncc relatcs to an assault on him or hcrscll'or lo any othcr cllargc. Ior cxamplc, whcrc an unsworn child says that ltc saw thc accuscd pcrson stcal

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⁵ an arlicle. 'l'hc sworn cvidence of a child nccd not as a matlcr of law bc corroboratcd, but a jury should bc warncd not that thcy must Ilnd corroboration but that thcrc is a risk in acting on lhc uncorroboratcd cvidcncc ofyoung boys or girls through thcy may do so ilconvinccd thc witncss is telling the trulh, and this warning should also bc givcn whcrc a young boy or girl is called 10 corroborate cvidencc eithcr of anothcr child, sworn or unsworn, or ol'an adult.'['hc evidcncc olan unswom child can amount to corroboration of sworn evidcncc though a parlicularly carclully rvarning should in that casc bc given."

Counsel submitted that the trial Judge rightly relied on the victim's testimony as corroborated by the testimony of PW l, and PEX I to llnd that it is thc Appellant who performed the sexual acts upon the victim. Counsel prayed that this court finds that this ground had no merit. 15

#### Considcration of Court

The main contention in this Appeal is the participation ol the Appellant in thc offence lor which he was convicted. Counsel for thc Appellant submittcd that thc trial Judge erred when hc convicted the appellant basing on uncorroborated evidencc of PW3. 'l'he argument of the Appellant was that the Rcspondents ought to have brought the investigating police officcr as a witness to support thc victim's evidcncc. 20

The suprcme court has discussed extcnsivcly what amounts to corroboration and its

effect on evidence in Uganda vs. George Wilson Simbwa ,SCCA No. 37 of 1995, where it was held that, 25

> "Corroboration allccts thc accuscd by conncctinS, or tcnding lo conncct hinl rvith thc crimc. In othcr rvords, it must bc cvidcncc rvhich implicatcs hin, which confirrning somc malcrial particular not only thc cvidcncc that thc crirnc has bccn cornmittcd but also tltat thc dcltndant cotnntitlcd it. 'l hc tcst applicablc to dctcrrnine thc naturc and cxtcnt of corroboration is thc santc

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⁵ whether it falls within thc rulc of practicc at common law or within thc class ofoffcnccs for which corroboration is rcquircd."

Guided by the above holding corroboration of evidence is rooted in thc criminal cardinal criminal principle requiring the prosecution to prove thcir case beyond reasonable doubt and not necessarily beyond the shadow ofdoubt. ln ordcr to secure

a conviction, if the prosecution deems it necessary it may adduce cvidence through more than one witness. Under the Evidence Act specifically section 133, there is no number of witnesses that are required by law for the prosecution to prove their case beyond reasonable doubt. 10

Consequently, the prosecution can secure a conviction against the accuscd bascd on the witness of a single witness who is the victim provided court finds such victim to be truthful. See Sewanyana Livingstonc vs. Uganda' SCCA No. 2006, cited by counsel for the Rcspondent. 15

The Appellant averred that therc were inconsistencies in the cvidcnce ol the Respondent's evidence between PWI and PW2. I lowever, the Appellant did not demonstrate to this court which inconsistency there was in the evidcnce''l'he law on inconsistency is very clear, that the contradictions will not havc effbct on the outcome of the matter unless they go to the root of the case or it is demonslrated that the inconsistencies are deliberate lies. The case of thc Respondcnt was consistcnt through the evidence olPWl, PW2 and PW3.'l.here was nothing to show that the evidence was full of falsehood. 20

We are satisfied that thc learncd trial Judgc properly evaluated thc cvidencc to comc to the conclusion that the Appetlant had scxual intercourse with I'W3 ' 'l'he complainant took oath. We agree with the submissions of Counsel for the Respondcnt that once a child gives swom evidence then court can rcly on such


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evidence even when it was not corroborated. I lowevcr, in this particular case the sworn evidence of PW3, was corroborated by PWl, PW2 and PI:Xl. 5

1'his ground therefore lails.

#### Oround 2

## Submissions of counscl for thc Appellant.

10 15 Counsel for the Appellant submitted that thc trial Judgc errcd in law when hc lailcd to consider the fact that on the date the olfence was committed the Appellant was a chitd. 1'he appeltant should thercforc havc been tried and scntenccd as a child ,in accordance with the Children's Act ,Cap .59. Additionally, counscl submittcd that the trial Judge failed to handle the trial within a period of 3 months as required by the Children's Act. I-le cited that Section 2 of the Children's Act dcfines a child as a pcrson below the agc below of l8 ycars. Counsel cited Kiiza Samucl vs. Uganda, CACA No. 102 of 2008, Francis Omuroni vs. Uganda 'CACA No- 2 of

2002, Ssendyose Joseph vs. Uganda ,CACA No l5 of 2010 and Serubega vs. Uganda, CACA No. 147 of2008.

20 Counsel prayed that the court finds the sentcnce imposcd on the appellant illegal and scts it aside.

## Submissions of Counsel f<r r thc Rcspondcnt

Counsel for the Respondent submitted that the Appellant was cxamined on Pl;24 which was admitted as PEX2 and was found to be l8 years. P[:X2 shows that thc Appeltant at the time of thc examination was l8 years depcnding on thc eruption of the 3'd molar and physical appcarance and distribution of pubic hairs. Counsel submitted that the was therefore rightly tricd as an adult.

Counscl citcd Scction 66 (3) of the Trial on Indictmcnts Act, which providcs that:

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"any fact or document admitted (whether the fact or document is mentioned in the summary of evidence or not) in a memorandum under this section shall be deemed to have been duly proved: but if during the course of the trial, the court is of the opinion that the interest of justice so demand, the court may direct that nay fact or document admitted or agreed in a memorandum filed under this section be formally proved"

Counsel submitted that the PF24 that stated the age of the Appellant was admitted in evidence with no objection from the Appellant during the trial. The trial Judge did not doubt its contents neither did the Appellant bring the issue of age into contention. Counsel prayed that this court finds that the Appellant was rightly charged, tried and sentenced as an adult.

**Consideration of Court**

We observe that the appellant's age was not put into issue at the trial. Even so, age of an offender as a matter of law, must be proved through credible evidence. It is provided under Section 88 (5) Children's Act that:

A person shall be presumed to be a child if he or she claims or appears to be 20 *younger than 18 years old pending a conclusive determination of age by court.*

An amendment to Children Act (S.19 Children's Amm. Act) made further provisions that:

- "(2) In determining criminal responsibility or an order for a child offender, the police, prosecutor or a person presiding over the matter shall consider the age of the person at the time the offence was allegedly *committed;* - $(3)$ *Subject to subsection (2), Court shall determine the age based on a full* assessment of all available information, giving due consideration to official documentation including a birth certificate, school records,

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# health records, statements certifying age from the parent or child, or medical evidence.

'fhus, it was the duty of the court to inquirc into thc appellant's agc cspccially in view of the imprecise entry into P1124 and thc appellant's own submission of his agc.

It is our duty then to re-considcr the evidcnce availablc which indicatcs a strong probability that at the time he committed thc offcncc, the appcllanl was a child. I Ic should thus have been sentenced in that capacity. 10

We find it highly probable that the appellant was below 18 years whcn hc committcd the offence. The report from the medical examination of the appellant in 201 7 gavc an imprecise estimation of the appellant's age "about 18 years". 'l'he appellant, on

the other hand, while testi\$ing in 2019 said that he was l8 years meaning that, two years earlier when the offence was committed, he was l6 years. 15

We would give the appellant the benefit ol doubt and put his agc at the time ol commission of the offence at l6 years. Thc consequence is that thc appellant should have been sentenccd as a child, to a sentencc not exceeding 3 ycars' imprisonment.

- 'fherefore, the sentence of 23 years that was imposed on him is illcgal and ought to be set aside. (see: Sebuma Vs Uganda, Court of Appeal No. 0617 of 2014 which offers somc guidance). In light ofthat authority, unless the appellant has bcen in custody for less than 3 years, he ought to be sct free, as hc has l'ully servcd thc permissible sentence. 20 - We are therelore satisficd that according to thc cvidcncc on rccord the Ilcspondcnt did not prove the age o I the Appcllant beyond rcasonablc doubt. 25

'l'his ground succecds.

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The appellant was arrested on 25^th October, 2017 and has been in custody for over 5 $\mathsf{S}$ years, longer than the maximum sentence of 3 years imprisonment that can be imposed on a child under the Children's Act, Cap 59. Therefore, the appellant ought to be set free immediately, unless he is otherwise held on other lawful charges.

| | We so order. | |----|-----------------------------------| | 10 | . day of<br>Dated at Kampala this | | | | | | <b>ELIZABETH MUSOKE</b> | | | <b>JUSTICE OF APPEAL</b> | | 15 | | | | <b>CHRISTOPHER GASHIRABAKE</b> | | 20 | <b>JUSTICE OF APPEAL</b> | | | EVA K. LUSWATA | | | <b>JUSTICE OF APPEAL</b> |

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