[2000] UGSC 11

### **HOLDEN AT MENGO** IN LHE SUPPLIER COURT OF UCANDA

#### ODEK' LZEKOOKO' KYKOKOKY' WNTENCY' KIKONIOCO 11'2'C' $COBVM:$

#### CRIMINAL APPEAL NO.10 OF 2000

### **BELMEEN**

| | FRANCIS TOMASI MUKHWANA} | | |------------|--------------------------|--| | | TAWRENCE NATSHEBA | | | APPELLANTS | <br>FRED KAKALA MUKHWANA | | | | alias PETER WAKHOKHA | | | | MOSHIKOWA WATETE | |

#### $\mathbf{Q}N\mathbf{V}$

<table>

OGNADA RESPONDENT

$\frac{1}{6661}$ Holding $\frac{1}{6661}$ $\frac{1}{6661}$ and Berko J. A.) sitting at Kampala in Criminal Appeal No.63 of 1998 Solidal from the decision of the Court of Appeal (Kato, Mpagi-Bahigeine) $\mathcal{M}$

#### **INDEWENT OF THE COURT**

record of appeal due to referring to the appellants by numbers, we shall 1999, hence this appeal. To avoid a repetition of a mix-up apparent in the death. Their appeal to the Court of Appeal was dismissed on 9^th November, found them guilty as indicted and sentenced each one of them to suffer Kibone. On $6^{\text{th}}$ November 1998, the High Court of Uganda, sitting at Mbale, MUKHWANA, were jointly indicted and tried for the murder of Christine KAKALA MUKHWANA, LAWRENCE NATSHEBA and FRANCIS TOMASI of them. The four, MUSHIKOMA WATETE alias PETER WAKHOKHA, FRED convictions for murder, and to set aside the sentence of death passed on each This is a second appeal in which four appellants ask this court to quash their

"Francis", respectively. herein refer to them by names as "Watere," "Kakala," "Natsheba" and

-: SWOIIOI The facts of the case, as found by the trial court may be summarised as

death. actively participated in the assault on the deceased, which assault, led to her appellants was that they were part of the mob, and that they had each death was found to be internal brain harmorrhage. The case against the four was carried out on the deceased's body the following day, and the cause of episode lasted from about 4 p.m. to about 8 p.m. A medical examination dragged on the road up to where she was finally dumped. The whole going to be killed. Towards the end, the deceased collapsed and was continuing the assault on her, was chanting words that indicated she was thereafter. Part of the way, she was made to run with the mob which, while taken to, and dumped at Bududa Police Station, where she died shortly She was taken to Bushika Sub-county headquarters first, but was finally and was taken away being assaulted with sticks, clubs, pangas and stones. out of fright, the deceased tried to escape, she was grabbed by the attackers who worked with her. Suddenly a mob of people surrounded her and when, place of work at Kikholo Trading Centre, with her daughter, Felista Nasike, On $6^{\text{th}}$ December 1995, in the afternoon, the deceased, a tailor, was at her

mother when the mob pounced on the mother and took her away assaulting evidence as PW2. Felista Nasike testified that she was working with her Nasike who gave evidence as PW3, and Davis Wamaniala, who gave The case rested on the evidence of two eye witnesses, namely: **Felista**

$\overline{c}$

They continued to assault the deceased and took her away. police, and to bring Nambaale instead. The mob did not heed his advice. assault her, and not to punish her for Nambaale's wrongs, but to take her to had kept his instruments of witchcraft with her. He told the mob not to people. She was being assaulted, allegedly because her brother, Nambaale, deceased was brought there by a mob, which he estimated to be about $50$ day at about 5 p.m., he was at Bushika sub-county headquarters when the Wamaniala, a Parish Chief of Bumusisho Parish testified that on the fateful to Bududa Police Station, where the deceased was dumped and died. Davis her. She followed the mob and witnessed what was done to the deceased up

him, so did the four appellants. were listed, should be dealt with. He attended the meeting and, according to meeting at which it was resolved that persons practicing witchcraft, who date, prior to the incident, the elders of Bumusisho Parish had convened a deceased. In addition, Davis Wamaniala testified that on an unspecified described what role each of the appellants played in the assault on the apparently fled from the area after the incident. Each of the two witnesses the mob, as well as other persons who were not charged, some of whom had Both witnesses testified that they had recognised the four appellants among

There are three grounds of appeal to this Court. The first ground is:

#### "stnalledge "stnalledge." $\phi_{\text{u}}$ $\zeta$ $\gamma_{\text{u}}$ $\zeta$ $\gamma_{\text{u}}$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\zeta$ $\$ The learned Justices of Appeal erred in mixed law $I$ ,

and Natsheba: Appeal, where the learned Justices of Appeal said this of Watete, Kakala, This complaint is directed at the statement in the judgment of the Court of

the first, second and third appellants. yd qu iss idila shi gnirsbisnos ion rol sgbul initi bennal shi Counsel for the appellants was therefore wrong in criticising "us to all to all to all to all to all to all to all to all to all to all to all to all to all to all to all to рәилрәт

"idila fo sonelsh n qu tuq odw inallegge din to sow il."

:uəwapul The learned trial judge had implied the same thing when he said in his

### and made an outright denial, but A4 also pleaded an alibi." $\partial$ uəfəp nəyi ni sinəmətniz niowsun əpam lib bəsucə əhr

that Kakala and Natsheba set up theirs in their statements to the police. Watete set up the defence in his unsworn statement to court at the trial, and first three appellants had also set up a defence of alibi. He contended that Mr. Nsibambi, counsel for the appellants, submitted to us, that each of the

appeal, i.e. ascribed to him the following statement appearing at p.46 of the record of In contending that Watete had set up an alibi at the trial, counsel erroneously

# and it stay in the village, but I reside in Mbale." I smit shi to isom tant enormal niw noitagella shi beineb $I$ "

$\mathbf{t}$

was on 6.12.95 when the deceased was killed. to the High Court for trial. He did not say anything on, or about where he of other charges for an offence committed in 1995, and about his committal Nambaale, about his appearances in court until 1997 when he was informed about his arrest on 17.2.96 allegedly on a charge of threatening one Sam unsworn statement of Natsheba. Watete's unsworn statement is a narrative According to the trial judge's notes, however, that sentence is part of the

which the courts below had erroneously ignored. evidence. He submitted that each of the statements put forward an alibi, as $Exh. D3$ and $Exh. D4$ respectively, and thereby became part of the defence and caution, on the premise that the statements were produced in evidence, set up the defence of alibi in the statement made to the police under charge For Kakala and Natsheba, Mr. Nsibambi made the proposition that each had

identification evidence which was believed and relied upon. did not occasion any miscarriage of justice in view of the quality of the defences. She submitted that in any case, failure to consider the alleged alibibelow, that the three appellants did not set up alibi in their respective Ms Khisa, Principal State Attorney, supported the view held by both courts

however, that for the prosecution to negative it, and more so, for the court to accused person does not have any burden to prove his alibi. Needless to say, person to establish his defence. That is true of the defence of alibi also. An defences which are not relevant here, no burden ever rests on an accused with the exception of the defense of insanity, and some other statutory DISECTOR OF PUBLIC PROSECUTIONS (1935) A. C. 462 to the effect that, in the well-known decision of the House of Lords in WOOLMINGTON vs claims to have been. This emanates from the general principle propounded the accused was at the scene of crime and not at the different place where he proving that answer. The burden remains on the prosecution to prove that alibi as an answer to the charge against him, does not assume any burden of crime. The law is well settled, that an accused person who puts forward an offence was committed he was in a different place from the scene of the he could not have committed the offence charged, asserts that at the time the The defence of alibi is set up when an accused person, wishing to show that.

$\varsigma$

charge. consider it as the defence, the alibi has to be put forward as the answer to the

told the police, so far as is relevant, was: allegations against him. In the statement, produced as $Exh. D3$ , what he had however, he said that in a statement he made to the police he denied the jumped bail; and about his committal in May 1997. During that narrative, on bail; about his re-arrest on 14.2.99 on the wrong accusation that he had threatened to kill Sam Nambaale; about his appearances in court and release that of Watete, about his arrest on 12.10.96 on allegations that he had alibi in his unsworn statement at the trial. He gave a narrative, similar to any statement to the police. Kakala also did not directly put forward any the charge against himself. And unlike the other appellants, he never made indicated that, at the trial, he did not put forward any alibi as an answer to In the instant case, the position of Watete is very clear. We have already

## "ogulliv ym to tuo tnew neven I yab tant no"

He there said: was more specific in the charge and caution statement to the police, Exh. D4. he was called upon to answer the charge against him. Similarly, Natsheba He did not, however, repeat that when, after the prosecution closed its case,

# "nwol On that day in som I tud selling shi ni nove ton sow I yab tath nO"

amounted to putting forward an alibi in answer to the charge against him. appellants said to the police was repeated to the trial court it would have willage but resided in Mbale. We agree that if what each of the two allegations against for this ton bib and time?" As the did not stay in the this judgment, he said in general terms, that at the police he had denied the He too did not repeat that in his defence at the trial but, as we noted earlier in

final submissions to the trial court. He submitted: evidence. We think that purpose can be deduced from the defence counsel's $\mathcal{W}$ to consider the purpose of tendering the statements, $Exh$ . D3 and $Exh$ , $D4$ , in latitude to be accorded to an accused person, in the instant case it is pertinent faced at the trial. Subject to what we shall say later in this judgment on the contents thereof automatically became the maker's answer to the charge he each appellant's charge and caution statement was produced in evidence, the not accept the inference implicit in Mr. Nsibambi's proposition, that because said to the trial court and what he had said to the police. We, however, do We also agree that there was reasonable similarity between what each one

remained in Bushika until their arrest. the accused repeated what PWZ and PMZ stated that they away as the RC III Chairman ......... In their dock statements ni supplicitud ton libe crime or else they would have run is in itself conduct from which the court may injer that they sinT hear when y to the death of the deceased. This suosid posuoco aut that the accused persons cwa man conservations and the posuoco

- $\mathcal{L}$ and caution statement dated 6.2.97 (i.e. $Exh. Dt$ ). AZ (i.e. Natsheba) was arrested 3.2.97. He has a charge - charge and caution statement dated 6.2.97 (i.e. $Exh. D3$ )." A4 (i.e. Kakala) was arrested 12.10.1996. He exhibited his ......

Kakala or Natsheba the other appellants (A2, A3 and A4). canvassed the defence of alibi for Francis ( $\Delta$ ) only, and not for Watete, fact that, in his final submissions to the trial court, defence counsel not produced in evidence to set up alibi. We are fortified in this view by the arrested, after the offence was committed. In our view the statements were Clearly the purpose was to show how long it took for the appellants to be

made by counsel for the state at the hearing of the first appeal, that the trial Mr. Nsibambi, in his submissions to us, sought to also rely on a concession,

set up any alibi. answer to the charge against them, which contents, as we have held, did not in the content of batters singlights the appellants stated to the trial court in substance in this submission, because the concession, such as there was, on bing extract the alibis set up by the three appellants. We find no $\Delta$

appeal fails. would have failed, as did that of Francis. Consequently, the first ground of up alibi as their respective defences through $\mathrm{Ex}h.\mathrm{D3}$ and $\mathrm{Ex}h.\mathrm{D4},$ the same the evidence as a whole, even if Kakala and Natsheba were taken to have put alibi. What is more, we are satisfied that in the instant case, having regard to appellants, i.e. Watete, Kakala and Natsheba, did not put up the defence of unable to fault the Court of Appeal for the stance it took, that the three favourable to the defence. However in view of all the foregoing, we are appropriate, consider any relevant material lawfully before it, if it be presentation and interpretation of his defence. The court should, where accused person, particularly one on a capital charge, latitude in the We should observe that generally the court should go a long way to give an

together. They read: Mr. Nsibambi chose to argue the second and third grounds of appeal

- umo siy fo asodind accomplice evidence and/or evidence of a person with a fact when they did not consider PW2's evidence as Ine learned Justices of Appeal erred in mixed law and $z$ , - "court." the trial to estimate the erronomies of the trial failed to properly re-evaluate all the evidence before it Note that $\Lambda$ is the form when the point $\Lambda$ is the point of $\Lambda$ . $\cdot$ $\epsilon$ his attending the said meeting, where he said: In respect of the alternative, counsel pointed to the witness's evidence about witness was guilty of inciting the incident in which the deceased was killed. which it was resolved to round up and kill persons practicing witchcraft, that accomplice, counsel argued that by reason of having attended the meeting at need for corroboration. In support of the contention that the witness was an ought not to have been relied upon without the court warning itself of the who had a purpose of his own to serve, and that in either case his evidence Davis Wamaniala, was an accomplice witness or, in the alternative a witness Nsibambi to argue the ground before us. Counsel submitted that PWZ, However, because the question raised was an issue of law, we allowed Mr. The question in the second ground was not raised in the Court of Appeal.

## "svoirs un oi no il sepq." In was my to collect injormation affecting security and

that PW2's evidence was unreliable. Court of Appeal had properly re-evaluated the evidence it would have found support of his alternative submission. In conclusion, he submitted that if the **BECK3** (1985) I VIT EK 801; and **R** vs **PRATER** (1960) I ALL ER 298, in evidence was unreliable in absence of corroboration. Counsel relied on $\overline{R}$ vs Wamanala was a witness of nwo sid to esoquid a bad odw assortiw a saw alanamaw On basis of that, counsel invited this Court to conclude that Davis

of Appeal had thoroughly evaluated the evidence on record. not approve the decision of the meeting. She also submitted that the Court meeting. On the contrary, the only evidence available showed that he did She argued that he did nothing in furtherance of the resolution of the merely on the ground that he attended the meeting convened by the elders. In reply Ms Khisa argued that PW2 cannot be classified as an accomplice

ought to have treated it with caution. considering if his evidence required corroboration, and/or the courts below we have to determine first whether PW2 was an accomplice witness, before accordingly, (see OBELI vs UGANDA (1965) EA 622). In the instant case, evidence, if it is uncorroborated and the trial court failed to warn itself An appellate court therefore will quash a conviction based on accomplice after warning itself of the danger, it is satisfied that the evidence is reliable. evidence unless it is corroborated. However, the trial court may do so, if, It is trite law, that in a criminal trial, it is unsafe to rely on accomplice

if be uncorroborated, (see D. R. KHETAN vs R (1957) EA 563). appellate court would quash a conviction based on that witness's evidence if such a witness as an accomplice; and if the trial court fails so to do, the evidence of such participation and would justify the trial court in treating case) incited the commission of the offence under trial, would be sufficient witness conspired to commit, or, (as is contended by Mr. Nsibambi in this participated in the offence in one degree or another. Clearly, evidence that a court may find, on strength of evidence before it at the trial, that a witness affer trial. However, even in absence of such confession or conviction, a offence either on his own plea of guilty or on the court finding him guilty has confessed to the participation in the offence, or has been convicted of the subject of the trial. The clearest case of an accomplice is where the witness a principal or an accessory, in the commission of the offence which is In a criminal trial, a witness is said to be an accomplice if he participated, as

Davis Wamaniala participated in the offence in question. The only evidence would have justified the trial court, or the first appellate court, to hold that In the instant case, however, we have found no evidence on record that

$\overline{01}$

young men to kill witches and wizards. However, he added: this in cross-examination, when he said that the meeting resolved to select that those who practiced witchcraft should be dealt with. He elaborated on whom he named. In examination-in-chief he said that the meeting decided the meeting was convened by the elders of Bumusisho parish, some of such participation, was given by Davis Wamaniala himself. He testified that concerning the meeting from which Mr. Nsibambi would have us deduce

## "Snitsem shift to be used using $\mathcal{I}$ ".

the Court of Appeal to classify PW2 as an accomplice. hold that there was no evidence that would have justified the trial court or in question: see **KAMAU vs REPUBLIC** (1965) EA 501. Accordingly we participant in the preparations for, let alone in the commission of the offence and/or failure to report to the sub-county chief or police did not render him a furtherance of that resolution. Mere passive attendance of that meeting there was no evidence to show that Davis Wamaniala did anything in the resolution to kill the witches and wizards. We agree with Ms. Khisa that evidence that he was party to, or that he otherwise supported or encouraged inference, his assertion that he disapproved of the meeting. Nor is there any There is no evidence to contradict, expressly or by ερίμα οι ερμίν chief, he reported it to the RC III Chairman who, as a result, went from He also testified that though he did not report the meeting to the sub-county

description appears to originate from the English decision of the Court of was referred to us, nor have we found any. The category, or, more aptly, the Court or its predecessors pronouncing on such categorisation of a witness sing to noisisab subject of none side of one side of the sequence of this sequence of the side of the sequence of the side of the sequence of the side of the sequence of the side of the side of the side of the side of the We now turn to counsel's alternative submission, that Davis Wamaniala was

Criminal Appeal in **R** vs **PRATER** (1960) All ER 298, where at p.300 the

«νολιβ θα pinous θρίαθος αναθολιοσική μεταξί του μεταξί του μεταξί από της προσικής από του μεταξί του μεταξί του μεταξί του μεταξί του μεταξί του μεταξί του μεταξί του μεταξί του μεταξί του μεταξί του μεταξί του μεταξί τ isningu guinnum shi evre, the mainist against samos guivad as behanger se regarded as having some in that sessering it holds were with molitary and the sessering in the main of the sessering in the sessering in the sessering in the sessering in the sessering in the sessering in the sessering in the sessering in the ses $\mathfrak{S}$ , inequality in the circumstances of the present, is count, in the circumstance of the problem in the problem.

**STANAARD** (1964) I ALL ER 34, at p.40, explained the proposition in the years after that decision, the same Court of Criminal Appeal, in $\overline{R}$ vs decisions, that it appears to be no longer an authority of substance. Four proposition in $R$ varietied down in subsequent effect, as for example to cover up his wrong doing. However, the to testify truthfully because of some personal purpose he wishes to serve or The witness invisaged in that proposition, is apparently one who is likely not

The learned judge. It certainly is not a rule of law ...... " to pe adopted, at any rate where it seems to be appropriate to nadi yinaku shom liw, the dot si ti tahw ban shariseb si to noise when to noise and the norm of the point of small shown of the point of the point of the point of the point of the point of the point of the point of the point of the point of the point of the point of the point of $\mu$ ...... $\mu$ and $\beta$ and $\beta$ are shown in the sum of the sum of the sum of the sum of the sum of the sum of the sum of the sum of the sum of the sum of the sum of the sum of the sum of the sum of the sum of the sum it omore than a rule of practice. I say deliberately "if it be " The rule, if it be a rule, enunciated in R vs PRATERS (supra)

In a much later judgment of the Court of Appeal, Criminal Division, in

**<u>B</u>** $\overline{AB}$ (subra), a number of decisions since **<u>R</u>** $\overline{AB}$ (supray), were

regarding accomplice evidence. The conclusion of the court on the issue

reviewed, and the court opined that the Prater case did not extend the law

: SWOLLOT 26 SEW

following terms:

court said:

and isum solves that to dignate strength of that advice must vary yd betnint od yum osnobiyo z'ezoniw u tunt teoggue ot luivetum i sight oradium notation with caution where there is n no noingildo shi mort fourab of heiw yow on ni sw slink "

involved in the crime the subject matter of the trial." you van in io innticipant a si essentiw on in any suggesting the with size is essential or in the size of the size of the size of the size of the size of the size of the size of the size of the size of the size of the size rof siznd on si systi that that that it no basis for is any obligation to give the accomplice warning with all that according to the facts of the case, we cannot accept that there

when assessing the witness's credibility. serve in a special way, though that purpose may be taken into consideration is no legal requirement to treat a witness who has a purpose of his own to where the circumstances were not favourable to correct identification. There convicting solely on identification evidence, especially of a single witness, Court in many of its decisions, for the court to warn itself of the danger of which has grown in practice, and which has been pronounced on by this is in respect of accomplice evidence. What is akin to that is the requirement, However, the legal requirement for a warning on the need for corroboration and therefore, reliance, if any, to place on the witness's testimony. other factors, when applicable, assist the court to determine, what weight evidence, are factors that the court takes into consideration. All those and witnessed; and a witness's experience on matters on which he gives opinion Similarly, a witness's opportunity to observe what he claims to have The witness's motive for testifying, when evident, is one of such factors. affect a witness's truthfulness or accuracy, must be carefully considered. and assessing its credibility, all factors likely to colour, taint or in anyway We agree with that conclusion. Whenever the court is evaluating evidence

on the following statement made by the witness in cross-examination: with a purpose of his own to serve was not clear, but it was hinged The thrust of Mr. Vsibambi's argument in describing Davis Wamaniala $\alpha s$ $\alpha$

$\epsilon$ I

## "Sgulliv of agalliv moved from village to village." pass it on to my superiors. I reported to RC III Chairman as a und som string to collect information affecting security and

his part. shown to have lied or exaggerated in order to cover up any wrong doing on was serving the state he is employed to serve. Furthermore, he was not information to court, the witness was not serving a purpose of his own but those matters and reporting it to his superiors, or giving testimony on that Statute No.15 of 1993 which was in force then. In gathering information on Section 33(1) (f) and (h) of the Local Government (Resistance Councils) locality, is a matter of common knowledge and is prescribed by law: see concerning security, as well as in matters of maintaining law and order in his require it to be treated with caution. The role of a chief in matters had a purpose of his own to serve, rendering his evidence so suspect as to We do not accept that, that statement per se, was indication that the witness

must also fail. evaluated the evidence as a whole. The second and third grounds of appeal judgment. Finally we are satisfied that the Court of Appeal amply re-Felista Nasike, another eye witness, as already pointed out earlier in this witness who implicated the four appellants. They were also implicated by witness. Besides, it must be said, Davis Wamaniala was not the only eye Wamaniala with any more caution than is necessary in respect of an ordinary that matter the trial court, should have treated the evidence of Davis On the whole we do not find any reason why, the Court of Appeal, or for

## Justice of the Supreme Court

TEW KIRONAOCO

Justice of the Supreme Court I'N' WOLENGA

Justice of the Supreme Court

**A. N. KAROKORA**

Justice of the Supreme Court 1'M'N LEEKOOKO

Instice of the Supreme Court **A. H. ODER**

MM

DATED at Mengo this 20th day of November 2000.

In the result the appeal fails and is dismissed. $\quad$