[2024] UGCA 232

$\mathsf{S}$

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA [Coram: Egonda-Ntende, Barishaki Cheborion, and Mugenyi, JJA] CRIMINAL APPEAL 158 OF 2018

(Arising from High Court Criminal Case COA- 00-CR-0158 of 2018 at Mubende.)

### 1. MUWONGE FRED

- 2. SSENTUMBWE RICHARD - 3. SEKATTE VICENT ::::::::::::::::::::::::::::::::::::

### VERSUS

**UGANDA :::::::::::::::::::::::::::::::::::** 15

# JUDGMENT OF THE COURT

# 1. INTRODUCTION

The appellants were indicted and convicted of the offence of murder contrary to Sections 188 and 189 of the Penal Code Act on the 31st July 2018 and sentenced to 45 years' imprisonment by Murangira,J.

#### 2. BACKGROUND 25

It is alleged that on June 6, 2024 the appellants murdered one Patrick Mugenyi, a cattle trader at Kayaana Village LC1, Madudu Sub County, Mubende district. A1 one Livingstone Musisi a nephew to the deceased conspired with the appellants to kill the deceased and rob money from him that he had for trading 30 cattle. The appellants knew the deceased had money as he intended to buy 5 cows. The accused went to Kiterega LC1 on A1's invitation. A1 convinced the deceased to go and check on his bull which he did and this is when he was murdered by the appellants. They took the money he had. The deceased's motor cycle was abandoned and its battery was found with A1. The accused were 35

$\mathbf{1}$

charged with murder. A1 pleaded guilty and through plea-bargaining was $\overline{5}$ sentenced to 5 years in prison. He escaped from prison before the trial of this case. A2, A3 and A4 were convicted on the basis of A1's confession. The appellants dissatisfied with the decision of the trial court, filed this appeal.

#### 3. GROUNDS OF APPEAL $10$

The appellant filed an amended memorandum of appeal with the following grounds.

- 1. That the trial judge erred in law and fact when he failed to evaluate the 15 evidence on record properly and relied on hearsay evidence to convict the appellants thereby occasioning miscarriage of justice to the appellant. - 2. That the trial judge erred in law and fact when he failed to evaluate the inconsistences to convict the appellants. 20 - 3. That the trial judge erred in law and fact when he failed to evaluate the evidence on record properly and relied on the charge and caution of an accused who never appeared/ testified in their trial to convict the appellants thereby occasioning a miscarriage of justice to the appellant. - 4. In the alternative but without prejudice to the above, the trial judge erred in law and fact when he sentenced the appellants 45 years' imprisonment which sentence was manifestly harsh and excessive in the circumstances.

### Representation

At the hearing on 22^nd July 2024, the appellant was represented by Ms Shamim Nalule on state brief. The respondent was represented by Ms. Immaculate

Angutoko, Chief State Attorney and Mr. Kukundakwe Arthurton, Senior State $\mathsf{S}$ Attorney

# **SUBMISSIONS OF PARTIES**

Both parties filed submissions. At the hearing on 22^nd July 2024, the court 10 agreed to consider the submissions of the parties filed.

### Appellants' submissions.

The appellants cited Rule 30 (1) of the Court of Appeal Rules which provides for 15 the duty of the first appellant court. The court has a duty to re-appraise the evidence and come to its own conclusion on the facts. They cited Kifamute Henry v Uganda Criminal Appeal 10 of 1997 where the court stated "It was the duty of the first appellate court to rehear the case on appeal by reconsidering all the materials which were before the trial court and make up its own mind..." 20

On ground 1, the appellant cited Uganda $v$ Adrama Wilfred Ozee and another Criminal Session Case 36 of 2015 where Mubiru J. stated that for the accused to be convicted of murder, the prosecution must prove the following;

- 1. Death of a human occurred. 25 - 2. The death was caused by some unlawful act. - 3. That the unlawful act was actuated by malice aforethought; and lastly - 4. That it was the accused who caused the unlawful death.

The appellants did not contest the first three ingredients. It was the last ingredient that was in contention. They submitted that the trial judge relied on 30 hearsay evidence to convict them.

The prosecution used the evidence of PW1 Mugisha Isaac, PW6 Katongole Edward, PW 7 Moses Kasumba who told court that they talked to the first convict Livingstone Musisi who informed them that the appellants were involved in the

$\overline{3}$

- commission of the offence. The said Musisi being the first accused to be convicted $\mathsf{S}$ on the file, did not testify in court because he had escaped from custody. The appellants cited S. 51 of the Evidence Act Cap 6 which states that evidence should be direct and given by the person who perceives it. The appellants submitted that the law puts very little weight to the evidence of a co-accused who has testified in court and has to go through the test of cross-examination. 10 - The appellants submitted that the evidence of the said Musisi should not be given any weight since it was not tested through cross-examination.

On ground 2, the appellants submitted that the trial judge did not consider the inconsistencies in the prosecution case. There were contradictions in the 15 evidence of PW1 as to how long he knew A3. PW2's evidence was also contradictory. PW1's evidence that A5 was among the people mentioned by Musisi as involved in the murder was contradictory. The appellants submitted that these contradictions go to the root of the case. They cited *Candiga* $v$ *Uganda* Criminal Appeal 23 of 2012 20

On ground 3, the appellants submitted that it was erroneous for the trial judge to rely on a charge and caution statement of Musisi who never testified at the trial. The appellants cited Anyangu v R [1968] 239 where the court held that

"If a statement amounts to a confession and implicates the co-accused, it may 25 in joint trial be taken into consideration against the co-accused. It is however evidence of the weakest kind and can only be used as leading assurance of other evidence against the co-accused."

They submitted that the appellants and the maker of the statement were in different trials. They also argued that the trial judge would only rely on that 30 statement if there was other independent evidence against the appellants.

On ground 4, the appellants submitted that trial judge did not take properly into account mitigating factors thereby reaching a harsh and excessive sentence of 45 years. The appellants cited Kiwalabye Bernard v Uganda Supreme Court

$\mathscr{C}$

$\overline{4}$

- Criminal Appeal 143 of 2001 where it was held that it is trite law that the $\mathsf{S}$ appellant court is not to interfere with the sentence imposed by a trial court which has exercised its discretion on the sentence unless the exercise of discretion is such that it results in the sentence imposed to be manifestly excessive or low as to amount to a miscarriage of justice or where the trial court - ignores to consider an important matter or circumstances which ought to be $10$ considered while passing sentence. The appellants also cited Aharikundira Yustina v Uganda Supreme Court Criminal Appeal 27 of 2005 where it was held that consistency is a vital principal in the sentencing regime. They cited Oyita Sam v Uganda CACA 307 of 2013 where the court reduced sentence from death - to imprisonment of 25 years. In Francis Bwalatum v Uganda Criminal Appeal 48 15 of 2011 a sentence to 50 years on each count of murder was reduced to 20 years. In Kakubi Paul and Muramuzi David v Uganda CACA 126 of 2008 the court reduced a death sentence to 20 years of imprisonment. In Nalule Sara v Uganda Criminal Appeal 003 of 2013 the court reduced sentence of 30 years to 25 years - of imprisonment. The appellants submitted that they had no previous criminal 20 record. They were youthful. They were married with children. They submitted that the sentence of 45 years of imprisonment was harsh and excessive.

### **Respondent's submissions**

In reply, the respondent stated that it is the duty of the first appellant court as held in Kifamunte Henry v Uganda [1978] HCB 123 to rehear the case and reevaluate the evidence of the trial court, consider the facts and the law and come to its own conclusion. The respondent opposed the appeal and supported the conviction and sentence.

On ground 1, the respondent submitted that the evidence of PW1, PW6 and PW7 was admissible under S. 157 of the Evidence Act Cap 6. It allows for the admission of statements made by witnesses in evidence to corroborate any

- evidence given by them. They submitted that testimonies were admissible in as 5 far as it collaborated the evidence in the charge and caution statement of Livingstone Musisi and the strong circumstantial evidence on record. It cited Clement Namulambo & anor v Uganda Criminal Appeal 1 of 1978 which citing Shabani Bin Donaldi v R (1940) EACA stated that, - In every case in which an immediate report has been made by someone who is 10 subsequently called as a witness, evidence of the details of such report save such portions of it as may be admissible as being hearsay or like should always be given at trial. Such evidence frequently proves most valuable sometimes as corroboration of the evidence of the witness under section 157 of the Evidence Act.'

The respondent retaliated PW3's evidence which was the basis of A1's conviction. PW3 stated that he was given details of the murder by A1 in a charge and caution statement, which was tendered.

On ground 2, the respondent submitted that the prosecution case did not have 20 any contradictions and if there were any contradictions, the same did not go to the root of the case. It asked court to ignore them. It cited Alfred Tajar v Uganda EACA Criminal Appeal 167 of 1969. The respondent submitted that PW1 testified to being with the appellants during the search, which was not a contradiction because it was possible he saw the appellants at the search but did not know 25 them until at the point of their arrest. The respondent argued that there was no contradiction when PW6 testified that A3 was married to PW2. There was no contradiction because she testified that they were village mates she did not give a contradictory relationship. The other contradiction was that A1 Musisi mentioned A5 to be part of the commission of the crime while all the prosecution 30 witnesses stated that he was not involved. The respondent submitted that it was a minor inconsistency, which did not go to the root of the case. It submitted that because of passage of time, witnesses are bound to forget certain pieces of their story and courts have taken judicial notice of that. It cited Kiggundu John v

$\mathbf{6}$

5 IJganda,Court ofAppeal, Criminal Appeal 18O of2O09' They prayed the ground fai I s.

10 15 20 The respondent submitted that the trial judge considered strong circumstantial evidencewhichincludedtheconductoftheappellantsshortlyafterthedeathof the deceased ancl when the search of the deceased's body was being conducted' The respondent contended that PW6 on page 25 of the record of appeal' stated thattheappellantswerewiththemduringthesearchofthedeceased. Theykept confusing and diverting the team so as not to allow them search Kayaana village where the body was eventually discovered' The respondent submitted that Pw7 gave evidence that shortly after the disappearance of the deceased' the accused persons suddenly were seen with a lot of money and drinking a lot of alcohol which raised suspicion on the accused persons' This corroborated PW3's evidence that the accused removed from the deceased unidentified amount of money after kilting him. This evidence on the conduct of the appellant remained unchallenged and uncontroverted during cross-examination' The respondent averred that the conduct of the accused persons was not that of innocent persons. It showed that the appellants were aware about the deceased's death which they tried to cover up. The trial judge convicted the appellants after he considered all the circumstances' The respondent cited Kingera Robert Okidi ^u

25 Uganda Court of Appeal Criminal Appeal 200 of 2077 where it was observed among others that conduct of the accused person who had failed to respond to an attack in the village gave credence to the prosecution case'

30 In regard to ground 3, the respondents submitted that the charge and caution statementofMusisiLivingstonewaslegallyadmittedbythetrialJudge. The respondent submitted that it is trite law that where the maker of a charge and caution statement does not contest having made the charge and caution voluntarily, there is no need to hold a trial within a trial' They cited Omaria Clnndia u uganda Criminal Appeal 23 of 2OOl'

\*

$\mathsf{S}$

The respondent submitted that the charge and caution statement was properly admitted into evidence since it was not denied by A1 at the time of his plea taking. It averred that the appellants had the opportunity to cross-examine PW3 through whom the charge and caution was tendered. The respondent cited S. 57 of the Evidence Act and stated that there was no objection as to the nature and

- $10$ content of the charge and caution statement. The officer who recorded the charge and caution statement properly adduced the same under S. 31 of the Evidence Act. - The respondent submitted that the failure of the witness Musisi Livingstone to 15 attend court did not prejudice the prosecution case since the charge and caution statement was read in court by PW3 who recorded it. They cited $R$ v Horncastle & others [2009] UKSC 14 where the Supreme Court confirmed the Court of Appeal conviction while considering the sole and decisive rule. The respondent submitted that under the sole and decisive test, court is permitted to take the - 20 evidence or statement of an absent witness into account but not base conviction solely or decisively upon it. The UK supreme Court confirmed that a conviction can be reached basing on the recorded statement of a witness who is dead, missing or cannot be found. The court held that,

'a co-accused is another example of hearsay made admissible (at the suit of the 25 defendant) in the interest of fairness to the accused and because a confession is prima facie, in absence of reason to the contrary, likely to be true; CJA 2003 preserves a balance between the competing interests of the co-accused by providing exclusion unless it be shown that the confession was obtained by oppression or anything likely to render it un realistic.' 30

Court noted that the accused person was free to adduce evidence that challenges the admissibility and or credibility of an absent witness. The respondent invited this court to find that the absence of the witness, Musisi Livingstone, did not prejudice the prosecution case and his evidence by way of charge and caution statement was admissible at common law and S. 31 of the evidence Act in his

absence since he escaped and could not be found. The appellants were given an $\mathsf{S}$ opportunity to challenge the evidence at hearing. They prayed that the 3^rd ground fails.

$\omega_{\rm{c}}=0.5$

- On the sentencing, the respondent submitted that it is trite law that sentence is at the discretion of a trial judge and an appellate court will only interfere with a 10 sentence imposed by the trial court if the sentence is illegal, where it is evident that it acted on a wrong principle or overlooked some material fact or if the sentence is manifestly harsh and excessive in view of the circumstances of the case. The respondent submitted that according to the Constitution (Sentencing - Guidelines for Courts of Judicature) (Practice) Directions 2013 the starting point 15 for sentencing in murder cases is 35 years of imprisonment up to death sentence as a maximum deepening on aggravating factors. In Bekubye Muzamiru v Uganda Supreme Court Criminal Appeal 56 of 2015 the court confirmed a sentence of 40 years for murder and 30 years for aggravated robbery. In Magero - Patrick and another v Uganda CAC 76 of 2019 the court upheld a sentence of 45 20 years of imprisonment for murder. In Semaganda Spertio and another v Uganda CACA 456 of 2016 the court upheld a sentence of 50 years for murder. The respondent concluded that the sentence of 45 years for murder was neither harsh nor excessive. - 25

### **RESOLUTION BY COURT**

The court has carefully studied the record, considered the submissions of the counsel, and the law and authorities cited. The court is mindful that this is a first appeal to this court, which is governed by Rule 30(1) of the Rules of this court that provides;

- "(1) On any appeal from the decision of the High Court acting in the exercise of its original Jurisdiction, the court may - a) Reappraise the evidence and draw inferences of fact;"

$\overline{9}$ We have also carefully looked at the record of the High Court and re-appraised $\mathsf{S}$ the evidence. See Kifamunte Henry v Uganda, SCCA 10 of 1997.

Ground 1 was challenging the use of hearsay evidence by the trial court. The first ground of attack by the parties is in respect of the evidence of third parties who testified in relation to the information that they had obtained from one of the accused A1 as to who had committed the offence. The evidence is as follows.

- 1) The evidence of PW1 Mugisha Isaac, PW6 Katongole Edward, PW 7 Moses Kasumba who told court that they talked to the first convict Musisi Livingstone A1 who informed them that the appellants were involved in the commission of the offence. PW1 testified that Musisi told him that at the killing of his uncle Musisi, Sekate, Sentumbwe, Kizza and Muwonge, the appellants had agreed that they should take money from the deceased and not kill him. PW1 further testified that Musisi A1 told him that it was Sekate the third appellant who cut the deceased The rest had caught him so as not to ran away. They eventually killed the deceased. A1 told PW1 that he will give evidence against the appellants. - 2) On page 27 of the record Katongole Edward PW6 testified that he went to police after burial and the police told him that Musisi A1 admitted that Sekatte cut the deceased and then Fred and Ssentumbwe held the deceased as he had wanted to run away. Pw6 talked to Musisi, who he told him that Sekatte, Ssentumbwe had asked him to bring the deceased Mugenyi so as to steal from him. When he brought him these accused decided to cut him and kill him. - 3) On page 29 of the record, Moses Kasumba PW7 testified that at the police, they picked Musisi from the police cells. He was with Wagabaza a police 30 surgeon and Detective IP Katumba. They showed him the accused. Musisi told them that Sematte is the one who caused him problems. Sekatte cut the deceased. That they had 2 pangas one with Sentumbwe and another with Sekatte. He testified that Musisi said that Fred got hold of the deceased as he tried to ran away. PW7 further testified that Musisi told him he had cried and

Sekatte slapped him twice and told him that he has to be a man that he should $\mathsf{S}$ get a home and they bury that man. That Musisi told him that he went to his mother; got 3 hoes as he had some people who were going to dig for him.

While the appellants contend that the said testimony was hearsay and should not be considered against them, the respondent argued that they were $10$ admissions. The general rule on hearsay is well articulated in S. 59 of the Evidence Act which deals with oral evidence it states that;

## "Oral evidence must, in all cases whatever, be direct; that is to say—

- (a) if it refers to a fact which could be seen, it must be the evidence of a witness who says he or she saw it; - 15

- (b) if it refers to a fact which could be heard, it must be the evidence of a witness who says he or she heard it; - (c) if it refers to a fact which could be perceived by any other sense, or in any other manner, it must be the evidence of a witness who says he or she perceived it by that sense or in that manner; - (d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds."

This rule requires someone who directly perceived the commission of the offence, otherwise it is inadmissible. The hearsay rule is to the effect that a statement given in proceedings about something other than that by the person who directly 25 perceived it, is in admissible. In this case, it is clear that PW1, PW6 and PW7 all their testimonies are on the basis of information they allege they got from Musisi a convict in the same matter. While the evidence of A1 who saw the commission of the crime may constitute oral evidence, those of PW1 Mugisha Isaac, PW6 Katongole Edward, PW 7 Moses Kasumba is hearsay. They were informed by A1

but none of them saw the commission of the offence.

S. 30 of the Evidence Act also deals with when an oral or written statement may be admissible. It states that,

## "Cases in which statement of relevant fact by person who is dead or cannot be $\mathsf{S}$ found, etc. is relevant

Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves relevant facts in the following cases—

- a) when the statement is made by a person as to the cause of his or her death, or as to any of the circumstances of the transaction which resulted in his or her death, in cases in which the cause of that person's death comes into question and the statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his or her death comes into question; - b) when the statement was made by such person in the ordinary course of business,

and, in particular, when it consists of any entry or memorandum made by him

or her in books kept in the ordinary course of business or in the discharge of professional duty, or of an acknowledgment written or signed by him or her of the receipt of money, goods, securities or property of any kind, or of a document used in commerce written or signed by him or her, or of the date of a letter or

$20$

c) when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or her or would have exposed him or her to a criminal prosecution or to a suit for damages;

other document usually dated, written or signed by him or her;

- d) when the statement gives the opinion of any such person as to the existence of any public right or custom, or matter of public or general interest, of the existence of which, if it existed, he or she would have been likely to be aware, and when that statement was made before any controversy as to the right, custom or matter had risen; - e) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised;

- f) when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when the statement was made before the question in dispute was raised; - g) when the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 12(a); - h) when the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question." - None of these instances are applicable to the circumstances of this case. This is 15 because none of the oral or written statements were attributed to the deceased.

The respondent submitted that the evidence of PW1, PW6 and PW7 was relevant under S. 157 of the Evidence Act which states as follows;

$25$

$\mathsf{S}$

## "157. What matters may be proved in connection with proved statement relevant under section 30 or 31

Whenever any statement, relevant under section 30 or 31, is proved, all matters may be proved either in order to contradict or to corroborate it, or in order to impeach or confirm the credit of the person by whom it was made, which might have been proved if that person had been called as a witness and had denied upon cross-examination the truth of the matter suggested."

The respondent submitted that the evidence of PW1, PW6 and PW7 was admissible in so far as it corroborated the evidence in the charge and caution statement of Musisi Livingstone and the strong circumstantial evidence on record. The said evidence by the witnesses would be admissible in convicting A1 as it would be corroborating the caution and charge sheet by him. However, it would be weak evidence against the appellants as none of them admitted to the witnesses their role in the commission of the offence. All the statements made by pw1, pw6 and 7 are not in connection with any proved statement relevant

under section 30 or 31. 35

The law has found the evidence of a co accused to be the weakest kind. In $A$ . $\mathsf{S}$ Walusimbi & 3 Ohers v Uganda [1994] UGSC 6 (17 March 1994) the court held that,

"We should also note that confessions by co-accused cannot be prayed in aid as corroboration R. V. Aryato s/o Ochulura (1936) 3 E. A. C. A 120. We are aware of the development in the law of corroboration in sexual cases. We are not prepared to extend that development to the corroboration looked for in cases of retracted confessions, by allegations of co-accused in their confessions themselves requiring corroboration. There is a world of difference between evidence upon which proof can be founded and evidence of the weakest kind which may be taken into account. We would not be able to use the confessions of Walusimbi or Sekabembe for the purpose of adding corroboration of Twaha's confession, even if such confessions were admissible."

In the instant case the evidence sought to be corroborated was tendered by PW3 who recorded the evidence and not the witness himself. PW3's evidence was supposed to corroborate Musisi's evidence. The prosecution is trying to use the 20 evidence of PW3 to create Musisi/A1's evidence, which according to the law cannot stand. Ground 1 succeeds.

In ground 2, the appellants submitted that hat the trial judge erred in law and fact when he failed to evaluate the inconsistences to convict the appellants. They 25 argued that the trial Judge did not consider the many and grave inconsistences in the prosecution case. These included evidence of PW1, PW2, PW3, PW6 and PW7 as stated above The appellants aver that the contradiction goes to the root of the case and they should be treated in favor of the accused. They cited Candiga v Uganda (Criminal Appeal No. 23 of 2012) [2016] UGCA 19 that minor 30 inconsistences on the other hand, will only lead to rejection of the evidence if there is deliberate untruthfulness on the part of the witness. They cited Tajar v Uganda E. A. C. A Cr. Appeal No. 167 of 1969. The respondents in ground 2 submitted that the prosecution case did not have any contradictions and if there

were any contradictions, the same did not go to the root of the case and asked 35

$\overbrace{\phantom{11111}}$

- ⁵ court to ignore them. It cited Alfred Tajar u uganda EACA Criminal Appeal No. ⁷⁶⁷of 1969. The law on inconsistencies has been settled, in candiga sutadick v tJganda cA cr Appeal No. 231212 in regard to contradictions and inconsistences, where it was held that; - 10

"The law on contradictions and inconsistency is well settled. Major contradictions and inconsistencies will result in the evidence ofthe witness being rejected unless they are satisfactorily explained away. Minor ones, on the other hand will lead to the rejection of the evidence if they point to deliberate untruthfulness on the palt of the witness." See also Alfred Taja u IJganda EACA Cr APPeal No' 167/1969and Serapto Tinkamalire u Uganda SC Cr App. No. 27 /7949

- In this case, the inconsistences that are highlighted by the appellant are minor inconsistences that did not go to the root of the matter. Whether someone is married to another or who knew who in the village has no relevance to the fact that some one was killed unlawfully. It has no bearing on who the killers are. Such minor inconsistencies can be ignored. This ground of appeal fails' 15 - 20

on ground 3, the appellant submitted that it was erroneous for the judge to rely on a charge and caution statement made by Al the frrst convict which was still in possession of prosecution until it was tendered in court by the prosecution. This meant that the statement was never made part of the proceedings at the

- time the lst convict was convicted. This meant that Musisi was never given an opportunity to admit having voluntary made the charge and caution statement. The appellant cited. Anyangu u R (1968) EA 239 E'A. C. A and Kintu & others v Uganda (Criminal Appeal. 0l of 2O09) UGCA 16(20 February 2015) where it was held that, 25 - "lf a statement to a confession and implicates the co-accused, it may in a joint trial be taken in to consideration against the co-accused. It is however evidence ofthe weakest kind and can only be used to supplement an otherwise substantial case against them.' 30

They also cited John serumaga and 3 ors u {Jganda cr. 31 /96 CA which stated the principle that a statement made which often affects a co-accused can only

E

- 5 be used to supplement an otherwise substantial case against them. The appellants submit that there was no joint trial between the said Musisi and the co-appellalts in court to enable the co-accused challenge and as well to appreciate the manner in which the statement was obtained' They submitted that the 1"t convict was sentenced years before the appellants were tried. The lst - 10 convict,s proceedings and conviction were in totally different trial from the appellants and his charges and caution statement cannot be used in the trial against the appellants and it was erroneous for the judge to convict the appellants basing on that statement. The appellants submit that the Judge had no other independent evidence against them. They submitted that the record of - appeal shows that apart from the charge and caution statement, thejudge relied on hearsay evidence which is inadmissible to convict the appellants which was a misdirection. They prayed that the ground of appeal is allowed and the conviction is quashed. The respondent on the other hand prayed the court to consider the charge and caution statement. It cited cases where the court can 15 - use a statement of one who is not around. It submitted that it is trite law that where the maker of a charge and caution statement does not contest having made the charge and caution voluntarily, there is no need to hold a trial within a trial 20 - 25 The law a.llows the police to procure confessions from suspects during any investigation of crime. They must do so in accordance with the law. s. 24 of the Evidence Act states that;

'A confession made by an accused person is irrelevant if the making of the confession appears to the court, having regard to the state of mind of the accused person and all circumstances, to have been caused by any violence, force, threat, inducement or promise calculated in the opinion of court to cause untrue confession to be made.'

ln sseruuma Jude u {Jgonda CACA 156 of 2018, the court while discussing confessions, referred to the Halsbury's Law of England stated that;

- ⁵ 'A confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings, and it is not excluded by the court. Where it is represented to the court that the confession was, or may have been obtained by oppression of the person who made it, or in consequence of anything said or done which was likely in the circumstances existing at the time, to render unreliable any confession which might be made by him or her in consequence thereof, the court may not allow the confession to be given in evidence against him. Except in so far as the Prosecution proves to the court beyond reasonable doubt that the confession, notwithstanding that it may be true, was not so obtained. 10 - The prosecution relied on the confession of Al, which was made in a charge and caution statement. The said A 1 was Musisi Livingstone who implicated the appellants' involvement in the commission of the offence. The said Musisi did not attend court because according to the prosecution he had escaped from lawful custody. This means that the evidence of the said witness was never tested 15 - at by cross examination at the hearing. The charge and caution statement or the alleged confession in those circumstances was inadmissible against the appellants. 20

The prosecution relied on the statement of the said Musisi which did not mention A5. PW 1 testified that he was informed by tvlusisi that A5 was one of the perpetrators with whom he committed the offence. The trial Judge after evaluating the evidence did not convict A5 because there was no evidence supporting his conviction. This is a clear indication that the said charge and caution statement could not be relied on to convict the appellants having found that all the information contained therein was not truthful. This ground succeeds. 25 30

Ground 1 and 3 having succeeded this appeal is hereby allowed' The conviction of the appellants is quashed and the sentences set aside. We order the immediate

1'1

release of the appellants unless they are held on some other lawful charge. It is $\mathsf{S}$ not necessary to address ground 4.

Dated at Kampala this $30^{7}$ day ...................................

$10$

$\overline{a}$

$\mathcal{I}$ redrick Egonda-Ntende

Justice of Appeal

Barishaki Cheborion

**Justice of Appeal**

Dr. Asa Mugenyi

Justice of Appeal