[2025] UGCA 39

### THE RIPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT I(AMPALA

(Coram:Geoffreg Kiryabuire, Muzamiru M Kibeedi & Oscqr Kihika, JJA)

# CRIMINAL APPEAL NO. COA-OO. CR-CN-OOA4 - 2OI9

# MWANJE JOSEPH SIMON :: APPELLANTS

#### VERSUS

### UGANDA ::::: RESPONDENT

[An Appeal against the decision of Emmanuel Baguma, Judge, in the High Court of lJganda at Mpigi, made on the Sth March 2019 in Ciminal Sessjon Case No. 0165-20171

### JUDGMENT OF THE COURT

### Introduction

[1] The Appellant was indicted for aggravated defilement contrar5r to Sections 129(3) and (a) of the penal Code Act, Cap. 120. He was tried, convicted, and sentenced to serve 13 years, imprisonment after deducting the remand period of two years and one month.

#### Background

[2] On 28th January 2017, at about O5:O0 pm, the Appellant is alleged to have invited the victim, NT , aged 10 years, to his home. The Appellant took the victim to his bed, turned on loud

music and had sexual intercourse with her. The Appellant, however, denied and claimed that on the day in question, he was at home with his family. He claimed that the case was grounded on a grudge the Appellant had with the mother of the victim. The Appellant was convicted and sentenced after hearing the evidence of three prosecution witnesses and one defence witness.

#### **The Appeal**

- [3] Being dissatisfied, the Appellant Appealed to this Court against the conviction and sentence on the following grounds: - THAT the Trial Judge erred in law and fact when he $i.$ failed to properly evaluate the evidence on Record properly, thus causing a miscarriage of justice upon the Appellant. - The learned trial Judge erred in law and fact when he ii. sentenced the Appellant to 15 years.

#### **Representation**

- [4] At the hearing of the Appeal, Ms. Sheila Kihumuro Musinguzi appeared for the Appellant on State Brief, while Mr. Sam Oola, Senior Assistant Director of Public Prosecution, appeared for the Respondent. The Appellant was in Court through a video link from Upper Maximum Prison, Luzira. - [5] The parties filed written submission which have been considered by the Court.

#### Appellants Submissions

- t6l Counsel for the Appellant submitted that the trial Judge failed to evaluate the prosecution evidence concerning the participation of the Appellant. Counsel referred to the inconsistencies on pages 12 ard 22 of the Record of Appeal, wherein Pwllthe victiml described the colour of knickers as purple with dots, while Pw3 described the same as pink flowered. She cited the case of Candiga V Uganda, Court of Appeal Crlmlnal Appeal No.23 of 2O72, in which the Court held that major contradictions and inconsistencies result in the evidence of a witness being rejected unless satisfactorily explained, while minor ones will only lead to rejection of evidence if they point to deliberate untruthfulness on the part of the witness. - 171 Counsel further referred the Court to pages 40 and 56 of the Record of Appeal and submitted that there was no connection between the blood stains found on the retrieved knickers and the Appellant since the police form 24A marked prosecution exhibit 2 did not reveal any such results. Counsel averred that the gap created doubt, which should have been interpreted in favour of the Appellant. - t8l Counsel a-lso faulted the Judge for not conducting a uoir dire before receiving the evidence of the victim, a minor. Quoting Section a0(3) of the Tria-l on Indictment Act (T.l. A) and the case of Asega V Ugand.a [20161 UGCA 24, where the need for a uoir dire in respect of a witness of tender years was held to be material for

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purposes of determining whether the witness can testify on oath or not. Counsel further submitted that the importance of the voir dire, as held in Asega, (supra) is to ensure that the accused is not denied the statutory protection provided by Section a0(3) of the T. I. A.

- t9l Concerning the sentence, Counsel faults the trial Judge for failure to consider the health status of the Appellant, which led to the passing of a harsh and excessive sentence of 15 yea-rs imprisonment. Counsel submitted that the Appellant did not infect the victim with any sexually transmitted diseases, and he was HlV-negative. Counsel further submitted that the Appellant was a first time offender, breadwinner, and remorseful, all mitigating factors that should have resulted in a lenient sentence. - [10] She cited the case of Ahqrlkundlra V Uganda [2078] UGSC 49, which enjoins the Court to consider mitigating and aggravating factors and the principle of consistency in sentencing. Counsel submitted that at 22 years old, the Appellant had chances to reform. She prayed that the sentence be set aside and that this Court invokes its powers under Section 11 of the Judicature Act to re-sentence the APPellant.

#### Respondent's Submissions

[11] Counsel for the Respondent submitted that the failure to conduct a uoir dire concerning Pw1 did not occasion a miscarriage of justice. Counsel cited Section 139(i) on the T.l. A which provides that a finding, order or sentence of the High Court shall not be Page 4 of 14

a-ltered or reversed on Appeal on account of any error, omission, irregularity or misdirection during the trial, except where it has occasioned a miscarriage of justice. Counsel referred the Court to pages 10 to 14 of the Record of Appeal and submitted that Pw1's evidence was received after an affirmation and subjected to crossexamination in which Pw1 gave rational answers. Counsel stated that Pw1 was a competent witness under Section 117 of the Evidence Act.

- [12] Concerning the contradiction in the evidence of pwl and pw3 concerning the colour of the nicker, he submitted that the contradiction was minor, did not go to the root of the case, and did not affect the determination of the question of whether a sexual act was performed on the victim. Counsel further submitted that the evidence of Pw2, Pw3, and prosecution exhibit 1 (the medical report) corroborated the evidence of pw1 on the performance of a sexua-l act. - [13] Counsel for the Respondent further submitted that the failure to conduct forensic tests to ascertain if the blood stains on the nicker (Prosecution exhibit 4) could be attributed to the Appellant was not fatal given the sufficient evidence of pw1, pw2, and pw3. That Pw1 knew the Appellant as a neighbour and a barber. She reported to the mother and father (Pw2). Pw2 went immediately to the scene and still found the loud music playrng. Counsel referred to pages 45 lo 47 of the Record of Appeal, where the Judge analyzed the evidence of participation and found that the Appellant was placed at the scene as the perpetrator.

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[14] Regarding the sentence, Counsel for the Respondent submitted that the trial Judge considered both the mitigating and aggravating factors before sentencing the Appellant to 13 years imprisonment. He referred to page 38 of the Record of Appeal. Counsel submitted that the sentence was too lenient compared to the gravity of the offence. He further submitted that Counsel for the Appellant had not demonstrated whether the sentence was harsh or illegal. He cited the cases of Ttndifa llloses V Uganda' Court of Appeal Crilrrrinal Appeal No. O256 of 2O77, and Musabuli Sedu V tlganda, Court of Appeal Crimino-l Appeal .l\Io. 771 of 2077, where this Court dismissed Appeals with sentences of 20 and 25 years, respectively, for the Appellants convicted of aggravated defilement of minors aged 9 years old. Counsel prayed that this Appeal be dismissed.

### Determination of the APPeal

### Duty of a First Appellate Court

[15] As the first appellate Court, this Court has a duty to re-appraise all evidence that was adduced before the trial Court and come to its own conclusions of fact and law while making allowance for the fact that the Court neither saw nor heard the witnesses testify. (See: RuIe 30 (1)(a) of the Judicature (Court of Appeol Rules) Dlrections, S. I No. 13-10; and Rlfamunte Henry os. (Iganda, Supreme Court Criminal Appeal No. 7O of 7997.

# Procedural Issue-Failure of the trial Court to conduct a voir dire.

- [16] Counsel for the Appellant submitted that the failure by the trial Judge to conduct a uoir dire before receiving the evidence of the victim, Pw1, occasioned a miscarriage of justice. Counsel for the Respondent, on the other hand, submitted that although the trial Judge omitted the procedure, it wasn't prejudicial. - [17] We have reviewed the Record of Appeal and established from pages 10 to 14 that Pwl, aged 11 years, was not subjected to a uoir dire before she testified, let a\_lone on oath. We further note the precise flow of her evidence, was subjected to crossexamination by the defence Counsel. - [18] The importance of a uoir dire is to protect an accused from conviction based on the untested capacity of a child of tender years to speak the truth or to understand the importance of an oath. This is the import of Section 4O(3) of the T. I. A. (formally Section 3O(3)-before the revision). The question to determine is whether the failure to conduct the uoir dire robbed the Appellant of the statutory protection under the above Section. In the case of Muteslgwa Robert Vs Uganda, Crimlnal Appeol No. 247 of 2079, this Court held that even where the Court has erred, the Appellate Court only interferes with the decision of the lower Court where there has been a miscarriage of justice to any of the parties in the proceedings. - [19] Counsel for the Appellant did not illustrate the prejudice suffered by the Appellant. She stated that the absence of the Record ascertaining whether Pw1 was intelligent enough to testify occasioned. a miscarriage of justice. In our view, the Record suggests otherwise. Pw1's evidence appeared cogent and consistent even under cross-examination. Second1y, the Record does not show that the defence Counsel objected to the reception of Pw1's evidence at the time of trial. Section 139 of the T.l. A provides that a finding of the High Court shall not be reversed or altered on Appeal on account of al error, omission, or irregularity in the proceedings unless there is, in fact, a failure of justice. - [20] Sub-Section 2 provides that in determining whether the error, omission, or irregularit5r occasioned a miscarriage of justice, the Court shall have regard to whether the objection could and should have been raised earlier in the proceedings. The Record d.oes not show that any objection was raised. We agree with Counsel for the Respondent that the omission to conduct a uoir dire did not in itself alone, occasion a miscarriage of justice.

## Grounds one- Failure to evaluate the evidence ofparticipation.

[2 1] The evidence relating to the age of the victim and a sexual act having been performed against her is not disputed. At page 10 of the Record of Appeal, it is clearly evident that the Prosecutor and the Defence Counsel agreed to admit PF3A and PF24A, the medical examination reports of the victim and the Appellant, respectively. These were marked as Prosecution Exhibits L and 2,

respectively. Prosecution Exhibit 1 put the victim's age between 10 to 14 years old.

- [22] She was found with a freshly raptured hymen with the sight of light bleeding. The doctor concluded that a blunt, smooth object caused these injuries. Under Section 66(3) of the T. I. A., any fact or document agreed upon is deemed duly proved. Once a document has been accepted, its contents are also considered proven unless, during the trial, the Court thinks it has to be proved formally. See Etoma V Uganda, Criminal Appeal No. 404 of 2016. We therefore find that the fact of the age and sexual acts committed against the victim were sufficiently proved. - [23] The participation by the Appellant is challenged for reasons of contradiction in the evidence of Pw1 and Pw3 regarding the colour of the victim's nicker and the failure to subject the blood stains on the nicker to forensic examination to prove a connection to the Appellant. Three witnesses testified for the prosecution while the Appellant was the only defence witness. NT, the victim, testified as Pw1. Nakanwagi Rehma, the Victim's mother, testified as Pw2. Sargent Muhwezi Dick, a police officer, testified as Pw3. - [24] The fact that the Appellant and the victim were neighbours and known to each other is not disputed. Pw1, Pw2, and Dw1 (Appellant) all acknowledged that they were neighbours and therefore were well known to each other. Pw1 testified that the Appellant invited her to his home in the evening, turned on loud music, and had sex with her three times. Pw1 testified that she

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tried to make an alarm, but the Apperlant had put on music with ^aloud volume. Pw1 testified that the Appellant opened for her to return home. She found her mother's friend, who questioned her as to where she was coming from. she had brood in her nickers. She later told her mother, and the Appellant was arrested. pw1 testified that they took her nicker and took her for medical examination.

- [25] Pw1 described the corour of her nickers as purpre with dots. pw2 testified that the Appelrant had been their neighbour since 2o07. Pw2 stated her friend rang her asking her to return home because her daughter had been at the Appellant,s home. Upon return, Pw2 questioned her daughter, and pw1 took the mother to the Appellant's house, where pw2 found loud music still being played. Pw2 saw blood on the victim's nicker. she courdn,t teil if it was due to defilement or her menstrual cycle. pw2 acknowledged at page 77 of the Record of Appeal that she had had a grudge against the Appellant since 2OO7, and, it persisted up to 2Ol7 because they didn't apologise to each other. She, however, testified that the case was not founded on a grudge. - [26] Pw3 exhibited the nicker, which was described as pink and flowered. The Apperant denied defiring pw1 and attributed the allegation to his grudge against pw2, stemming from pw2,s attempts to find other men for the Appellant,s wife. The Appellant testified that he warned Pw2, and pw2 responded that the Appellant's wife was interested in the men.

- [27) ln his judgment at 46 of the Record of Appeal, the tria-l Judge relied on the evidence of Pwl to find that the victim, a neighbour, correctly identified the Appellant. The Judge described her testimony as consistent and concluded he had no reason to disbelieve her. The trial Judge further found the evidence of the Appellant inconsistent and unreliable. - [28] Upon review of the evidence, we find that the failure to subject the blood-stained nicker to forensic examination was not fata\_l because the fact of defilement was not in contention. The arrest of the Appellant occurred on the same evening of the incident. Pwl identihed the Appellant as a known neighbour from 2OO7 to 2Ol7 when the offence was committed. We have a,lso considered the Appellant's defence that the case was founded on a grudge. Although the admission of Pw2 and Dw1 proved the existence of a grudge, we disagree that the case is founded on a grudge. The neighbours had co-existed with the grudge since 2007. - [29] We do not find the contradiction regarding the colour of Pwl's nicker to be grave. As held in the Candiga case (supra), minor contradictions can only lead to the rejection of evidence if they point to deliberate untruthfulness on the part of the witness. In this case, Pw3 received the nicker from the victim's mother. It was the very nicker tendered in Court. During cross-examination, Pw3 described the nicker as pink and flowered. When asked further about purple, he stated, " I am not certain, that is purple," which points to the possibility of a witness being unable to appreciate colours. The Record does not show a break in the Page 11 of 14

chain of the movement of the exhibited nicker. The first ground of Appeal thus fails.

## Ground 2-whether the 15-year sentence was harsh.

- [30] We have considered the submissions of both parties and the cases cited regarding the sentence meted out by the tria-l Judge. The mitigating and aggravating factors the trial Judge considered are reflected at pages 35 and 36 of the Record of Appeal. The Prosecutor prayed for a stiff sentence on account of the victim's age (10 years) and the fact that the Appellant was a neighbour who took advantage of her. The mitigating factors were that the Appellant was remorseful and would never repeat the offence, he was a first offender, youthful at 22 years, a breadwinner of four young children, and capable of reforming. Defense Counsel further indicated that the victim had since healed. - [3 1] It is now settled that for this Court, as a first appellate Court, to interfere with the discretion of the sentencing Judge, it must be shown that any one or more of the factors below exist(s): - (i) The sentence is illegal, - (ii) The sentence is harsh or manifestly excessive, - (iii) There has been failure to exercise discretion, - (iv) There was failure to take into account a material factor, and - (v) An error in principle was made.

See Rutobugand.e V Uganda, [2014 UGSC 8; Kgattmpa Edward Vs. Ugand.a, Supreme Coutt Crlminal Appeal No. lO of 7995; Kamga Johnson Wauqmuno Vs Uganda, Supreme Court Crlmlnrrl Appeal No. 76 of 2OOO; and Klwalabge Bernard Vs. Uganda, Supreme Court Crlmlnal Appeal No. 743 of 2OO7

- [32] Further, the appellate Court may not interfere with the sentence imposed by a trial Court simply because it would have imposed a different sentence had it been the trial Court. See Ogalo S/O Owoura Vs Republtc [1954] 24 EA CA 2ZO. - [33] In passing the sentence, the trial Judge considered all the factors above. We note that the issue of not infecting the victim with an STD did not arise in mitigation. The trial Judge could not have considered a matter that was not raised. Item 4 of the Third Schedule to the Sentencing guidelines prescribed the range of sentences for aggravated defilement to be between 30 years to death. The starting point is 35 years. In this case, the Appelant was given 13 years after deducting the remand period of two years and one month. Counsel for the Appellant has not demonstrated the failure of the trial Judge to consider material factors. - [3a] We accordingly do not accept the Appellant,s claim that the sentence was harsh and excessive in the circumstances of the case

## **Disposition**

[35] This Appeal is dismissed. The Appellant shall continue to serve the sentence imposed by the lower Court.

We so order.

.day of ................................... Delivered at Kampala this..

GEOFFREY KIRYABWIRE **Justice of Appeal**

cilsee Si

$\cdot$

**MUZAMIRU MUTANGULA KIBEEDI Justice of Appeal**

OSCAR JOHN KIHIKA Justice of Appeal

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