[2022] UGCA 97

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MBARARA CRIMINAL APPEAL NO.1O9 OF 2015

⁵ (Coram: Egonda-Ntende, Catherine Bamugemereire, Madrama |)A)

1. PC. WAMALA EDSON (No.13085)

2. PC. KARUGABA JOSEPH (No. 5a357) APPELLANTS

3. KASULE RICHARD

#### VERSUS

UGAND RESPONDENT (Appeal from the Decision of Duncan Gaswaga f sitting at Mbarara High Court dated 4th May 20L6)

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# IUDGMENT OF THE COURT

The Appellants were indicted for the offence of Murder contrary to sections 188 and 189 and Aggravated robbery contrary to Sections 285 & 286 (2) of the Penal Code Act. The particulars of Count No. 1 were that the Appellants and others still at large, on the z9thday of July 20L2, at Camp ³ Chinese Communication and Construction Company (CCCC), in Kiruhura district, murdered Zhan Xunhong.

In Count No. 2 it was alleged that the Appellants and others still at large on 296 July 20"12 ar Camp 3 of the Chinese Communication Construction Company (CCCC) in Kiruhura district, robbed Li Chang Ging of cash UGX 21,018,800/--(Twenty one million eighteen thousand eight hundred shillings) and two total station surveying machines valued at UGX 20,000,000/-(Twenty million shillings), all valued at UGX 41,01,8,800/= the property of Chinese Communication and Construction Company (CCCC), and at or immecliately after the

They were convicted and sentenced to 55 years imprisonment on Count No. 1 and 25 years imprisonment on Count No. 2. Dissatisfied with the ciecision, they appealed against both conviction and sentence on the following grounds;

time of the saicl robbery, used a deadly weapon to wit a gun.

### Grounds of Appeal

- 1. That the Learned Trial Judge erred in law and fact when he failed to conduct a trial within a trial when the charge and caution statement of the 3'd appellant was retracted. - 2. That the Learned Trial fudge erred in law and fact when he failed to sum up the law, ingredients and facts to the assessors which occasioned a miscarriage of iustice. - 3. That the Learned Trial )udge erred in law and fact when he relied on some of the unsworn prosecution witnesses to convict the appellants which occasioned a miscarriage of iustice.

- 4. That the Learned Trial Judge erred in law and fact when he relied on a charge and caution statement that was inadmissible to convict the Appellants. - 5. That the Learned Trial fudge erred in law and fact when he relied on evidence of a single identifying witness, when conditions for proper identification were missing. - 5. That the Learned Trial fudge erred in law and fact when he failed to properly evaluate the evidence on record thereby arriving at a wrong conclusion. - 7. That the Learned Trial fudge erred in law and fact when he passed a sentence against the Appellants without deducting the period spent on remand. - 8. That the learned Trial Judge erred in law when he passed harsh sentences against the Appellants.

#### Representation

At the hearing of the Appeal, the Appellants were represented by Mr. Vincent Turyahabwe on State Brief while the Respondent was represented by Ms. Samalie Wakooli, Asst. DPP from the Office of the Director of Public Prosecutions. The Appellants appeared via an online video link from Mbarara main prison.

#### Submissions for the Appellants

On Ground No. 1, Counsel for the appellant submitted that from the record of proceedings, the 3'd Appellant objected to the charge and caution statement, which the prosecution attempted to exhibit. 25

Counsel added that although the court had indicated that it would conduct a trial within a trial, throughout the record of proceedings, it is not shown that this was done. Counsel cited section 139 of the T. I. A and the Court of Appeal decision of David fohnson Adiga v Uganda

- 5 Court of Appeal Crim. Appeal No. 157 of 2010 and asked court to quash the finding of the Trial Judge and set aside the sentence of the appellants. - Regarding Ground No. 2, counsel contended that from the record of proceedings, there is no evidence that summing up was ever done to the assessors. He added that the Trial Judge just made a blanket statement that summing up done in open court. Counsel referred to S. 82 (1) of the TLA, which requires a Trial Judge to sum up the law and evidence in the case to the assessors, and the provisions are couched in mandatory terms. 10 15

In respect of Ground No.3, counsel submitted that PW1 and PW2 did not testify on oath and they were detective police officers who actively participated in the investigations of the case. Counsel added that the record does not indicate whether the said witnesses were swom in but the Trial Judge heavily relied on their evidence, which caused ^a miscarriage of justice.

In regard to Ground No. 4, counsel for the Appellant submitted that the 3'd Appellant was arrested on 29th July 20"12 and his charge and caution statement was recorded on 6h August2012 after 7 days which 25

is in violation of the 48 hour rule stipulated under Article 28 of the Constitution. Counsel added that the 3.d Appellant stated that he was tortured before he made and signed the said statement, and since the Trial Judge did not conduct a trial within a trial, the possibility of torture was not challenged.

On Ground No. 5, counsel contended that the Trial Judge did not properly apply the law on identification in the instant case. He noted the conditions for proper identification laid down in Abdalla Nabulere & Anor v Uganda (19791 HCB 77 and stated that in the

present case, the conditions for proper identification were missing. 10

In respect of Ground No.6, counsel submitted that the Trial Judge failed to evaluate the evidence on contradictions and inconsistences in the prosecution evidence.

On Ground No. 7, counsel submitted that apart from noting the period spent on remand, there was nothing to indicate that the Trial Judge reduced the period the Appellants had spent on remand in accordance with Article 23 (8) of the Constitution.

Regarding Ground No. 8, counsel submitted that there was no uniformity in sentencing the Appellants thus the sentences were harsh in the circumstances. He prayed that this court should revisit the terms

25 of imprisonment by the lower court and pass a lenient sentence.

## Submissions for the Respondents in Reply

In reply to Ground No. 1, Counsel for the respondent submitted that the trial court confirmed that a trial within a trial was conducted by court and found that the charge and caution statement of A3 was taken voluntarily. She argued that even if a trial within a trial was not conducted, such procedural error did not occasion any miscarriage of justice.

Regarding Ground No. 2, counsel submitted that summing up to the assessors was done as evidenced in the record of proceedings indicating that summing up was done in open court. She added that when the assessors were giving their opinion, they quoted the ingredients of the offence, which is a clear indication that they were properly briefed by court. 10

In respect of Ground No. 3, counsel submitted that the Appellants were represented and if there were any anomaly, they would have raised it. She added that the absence of the word 'sworn in' on record is a human error, which is curable and cannot go to the root of the case to occasion a miscarriage of justice. 15

In reply to Ground No. 4, counsel contended that the delay to recorcl a statement does not render the statement inadmissible. She referred to Mumbere |ulius v Uganda SCCA No. 15 of 2014 where court rejected the argument that the recording of the charge and caution statement after 48 hours renders the statement a nullity. She prayed that court dismisses this ground of appeal.

Regarding Ground No. 5, counsel submitted that the trial court was alive to the law relating to evidence of a single identifying witness and gave the analysis in the ]udgement. She added that court considered the fact that PW4 was familiar with A3 as he had seen him on three occasions and they used to deal together in siphoning fuel among others. Counsel prayed that court dismisses this ground of appeal.

In respect of Ground No. 6, it was counsel's argument that such grounds offend the provisions of r.66 (2) of the Court of Appeal Rules which require a Memorandum of Appeal to set out clearly and concisely the grounds of appeal specifying in the first appeal the points of law or fact which are alleged to have been wrongly decided. Counsel submitted that Ground No. 6 is set out in general terms and does not indicate which specific piece of evidence was not considered by the trial court thus it should be struck off the record. 10 15

In reply to Ground No. 7, counsel argued that at the time the decision of the lower court was passed in 2076, Rwabugande was not yet law. She added that the requirements of the arithmetic deduction in Rwabugande came into force on 3,d March 2017 and cannot be said to operate retrospectively. She submitted that Court should disregard this ground.

Lastly on Ground No. 8, Counsel contended that a sentence of 55 years is way less than the death penalty and life imprisonment thus not manifestly harsh or excessive considering the circumstances of this 25

case. She also submitted that concerning Aggravated Robbery, the appellants were sentenced to 25 years to run concurrently meaning that on both counts the appellants were to serve only 55 years which was not harsh considering that a life was lost and property has never

5 been recovered up to date.

### The Duty and Reasoning of the Court

Section 11 the Judicature Act cap 13 recognises the jurisdiction of the Court of Appeal. It stipulates that, 'for the purpose of hearing and determining an appeal, the Court of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal

originally emanated.'

The Trial on Indictments Act lays down both the law and the procedure of handling criminal appeals from the High Court to the Court of Appeal. Section 132 (1) (a) and (d) of the T. I. A, Cap 23, state as follows: 15

- (1) Subject to this Section; - a) An accused person may appeal to the Court of Appeal from a conviction and sentence by the High court in the exercise of its original jurisdiction, as of right on a matter of law, fact or mixed law and fact

and the court of Appeal may-

d) Confirm, vary or reverse the sentence and conviction,

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The Court of Appeal can lawfully alter, increase or decrease ^a sentence under S. 3aQl of the Criminal Procedure Code Act cap 116. All the above sections of the law are procedurally made possible under

Rule 32 (1) of the |udicature (Court of Appeal) Rules, which states,

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'On any nppenl, the court nwy, so far as its jurisdiction pennits, confirm, retterse or onry tle decision of the High Court, or renit tlrc proceedings to the High Court with such directions ns may he approprinte, or order a neru trial, nnd make any necessnry, incidental or consequential orders, including orders as to costs.'

However in Kamya )ohnsonWavamuno v Uganda SCCA No. 16 of ²⁰⁰⁰ "...lt is t:ll \*ttled tlmt tlw Court of ATrpenl uill not interfcrc toith tJe exerci\* of discretion unltss tlare lus treen n failure to tnke into account a nmterinl cottsitlerntion, or arr error ht pirrciple uns nndc. lt wns not wficient tlnt tla nwnbers of tlu court toouLtl la ae exercivd tltir iiscretion dffirently."

With the above background in mind, we now proceed to consider the evidence on court record to establish if there was any failure to take into account a material consideration, or an error in principle was

made. 20

> We shall consider Ground No. 1 and No. 2 together as they relate to procedural irregu larities.

Considering Ground No.1, We note that the 3'd Appellant objected to the charge and caution statement and stated that he made the statement at 11:00pm, was tortured by police officers and did not make the statement voluntarily. The trial court then noted that a trial within a hial would be conducted to establish the voluntariness of the

statement. The Trial |udge stated in his juclgment that a trial within ^a trial was conducted and the statement was found to have been donated

by ,A3 voluntarily. However, there is no evidence on court record that this was done

The law governing retracted and repudiated confessions is succinctly stated in Tuwamoi v Uganda [196nEA 84, 91 that:

5 'A trial Court should not accept any confession which has been retracted or repudiated with caution and must before founding ^a conviction on such a confession be fully satisfied in all circumstances of that case that the conlession is true.

The purpose of carrying out a trial within a trial is to establish the voluntariness of the statements made by accused persons as was held by the Supreme Court in Amos Binuge & ors v Uganda, SCCA No. 23 of 1989 as follows; 10

'lt is trite that ruhen the adnissihility of an extra-judicinl statement is challenged, tlwt tle objectirrg accused ntust be gitten n clmnce to establish by etidence, lis grottnds of objecfion. This is tlone tlrough n trinl witlin ^a trial...tlrc purpose of a trinl within n trial is to decide uport the eoidence of botlt sides, ulether the confessiort slnuld be adnitted.' 15

The Supreme Court in Walugembe v Uganda SCCA No. 39 of 2003 held thaU 20

'Wrere an nccused person objects to tlrc adnrissibility of tle confession on grounds that it zuas not nmde ttoluntarily, the court nust ltold n trial within n trial to deternine if the confession Tpas or ruas not caused by any uiolence, force , thrent, inducenrcnt or promise to cnuse mt untrue confession to be nmLle.

ln suclt trinl witltitt a trinl, as in any crininnl trial, the onus of proof is on tlrc prosecution to protte tlmt the confession was nmcle t oluntnrily.' A close look at the material before this court reveals that there was no attempt by the trial court to carry out a trial-within-a trial. Without 25

carrying out a trial within a trial there is no other way the Trial Judge would have assessed the voluntariness of the confession vis-a-vis the appellant's denial. This was a fundamental error which made reliance on such a confession problematic. Moreover the trial Judge did not attempt to lay down reasons for believing the prosecution and not the

defence case. We therefore we fault him for the above omissions which $\mathsf{S}$ we find fatal. Ground No. 1 therefore succeeds.

Considering Ground No. 2, the appellants fault the Trial Judge for failing to sum up to the assessors. We noted that there is no evidence on record that the learned Trial Judge summed up the case to the assessors after the close of the case of both sides.

**Section 82 (1) of the TIA** imposes a statutory obligation on a Trial Judge to sum up the law and evidence to the assessors. It provides as follows;

*'When the case on both sides is closed, the judge shall sum up the law and the evidence in the case to the assessors and shall require each of the assessors to* 15 *state his or her opinion orally and shall record each such opinion. The judge shall take a note of his or her summing up to the assessors.*"

In Sam Ekolu Obote v Uganda [1995] SCCA No. 15 of 1994, it was held that;

- "There is no evidence on record that the learned Trial Judge summed up the 20 *case to the assessors after the close of the case of both sides. This in our view* amounted to a failure to comply with the obligatory requirement of $S$ . 81 (1) by the learned Trial Judge. It was a procedural error, which was fatal to the *appellant's conviction."* - This court has also held in Agaba Lilian & Amutuheirw Patrick v 25

**Uganda CACA No. 247 & 239 of 2017 that;**

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" Fnilure to snrrr ttp to the nssessors is an irregulnrity tlmt is fatnl nnrl incurable under S. 139 of the Tial on lndichnents Act. For that reason tlrc trinl is rendered n nullity."

Further, in Adiga ]ohnson David v Uganda CACA No. 157 of ²⁰¹⁰ this court while commenting on S. 82 (1) of the TIA stated tha!

" This prottisiort is couclrcd in nmndntory terms nnd that tlrc failure of the learned Trinl ludge to adlrcre to it rendered tlrc trial a nullittl nnd thus occasioned n miscnrriage of justice."

It is also our opinion that S. 82 (1) of the TIA is couched in mandatory

- terms therefore the Trial Judge was obligated to follow it and the failure to do so rendered the trial a nullity. In light of the procedural irregularities we have pointed out herein above, we find that ^a miscarriage of justice was occasioned to the appellants. According to Section 139 of the TIA, a finding based on such irregularities should 10 - be reversed. It provides as follows; 15

"Subject to tlrc prottisions of nny ruritten lnto, no fndirtg, sentence or order pnssed by tlrc Higlt Court slmll be reterseLl or altered on nppeal on nccount of ntly error, onissiort, irregulnrity or nisdirectiotr in tlrc sunnnons, warrnnt, indichnent, orLler, judgment or other proceedings before or during tlre trial unless tlrc error, onrissiott, irregularittt or ruisdirectiort lms, in fnct, occnsioned

o fuilurc of iusticc."

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We note that where a conviction by a lower court is quashed for being based on a fundamental irregularity in the proceedings which resulted into a mistrial, or where by reason of an error material to the merits of

the case a miscarriage of justice has occurred, the interest of justice normally demands that a retrial be ordered. 25

The overriding purpose of a retrial as was well-articulated in Rev. Father Santos Wapokra v Uganda, CACA No. 204 of 2012, is to cnsure that the cause of justice is served. Indeed, among other rcasons, it was found that a serious error committed during the conduct of thc trial or thc discovery of ncw evidence which was not obtainable at the trial are the major considerations for ordering ^a retrial. The Court that has tried a case should be able to correct the errors as to the manner of the conduct of thc trial, or to rcccive other evidcncc that was then not available at the time. Howevcr a court has the duty to ensure that the accused person is not in double jeopardy. It may gravely inconvenience the appellant and may indeed jcopardise them by way of expcnse, delay and inconvcniencc.

This court held a similar view in johnson David Adiga v Uganda CACA No. 157 of 2010. In that case this court set asidc the conviction and sentence on thc basis of irregularities similar to thc instant case, to wit; that the trial Judge erred in law when he failed to sum up the law and evidence to thc assessors; that thc trial Judgc relied on ^a charge and caution statcmcnt without propcrly admitting it, and that hc passcd a sentence which was harsh and cxcessivc. In Turahi Mugambe & Anor v Uganda Court of Appeal Criminal Appeal No. 48 of 1998 a conviction for aggravated Robbcry and scntcncc of death wcrc quashcd. Wc agrce that from thc abovc provision of the Evidcncc Act, the relevance of a confcssion is dependent on its 15 ZO

voluntariness. Becausc voluntariness is thc main essential to its relevance where admissibility in evidence of a confession is 25

challenged, the court after concluding a trial within a trial must make a specific finding on the voluntarincss of the confession first before considering its relevance.

In the case now before us we find that there was no evidence that the

5 trial Judge summed up to the assessors. The court record is devoid of this part of the procccdings. There is nothing on the record to suggest that such a procedure did happen and was taken not of.

More importantly the mode for admitting the charge and caution statements was completely flawed. Section 23 and 24 of the Evidence

Act provide the lcgal framework within which confessions and cxtra judicial statements can become relevant to a trial. l0

23. Confessions to police officers and power of Minister to make rules

(1) No confession made by any person while he or she is in the custody of a police officer shall be proved against any such person unless it is made in the immediate presence of - 15

(a) a police officer of or above the rank of assistant inspector; or

(b) a magistrate, but no person shall be convicted of an offence solely on the basis of a confession made under paragraph (b), unless

the confession is corroborated by other material evidence in support of the confession implicating that person. 20

(2) The Minister may, after consultation with the Chief Justice, make rules prescribing gcnerally the conduct of and procedure to be

followed by police officers when interviewing any person and when recording a statement from any person, in thc coursc of any investigation.

5 It would appear that under the law, where an extra-judicial statement or a charge and caution statcment is to be made by a person confessing to a crime, the charge itself must first of all be read and accepted and signed by the suspect. Before an extra judicial or charge and caution statement is taken by either a magistrate in the former or a commissioned police officer (above the rank of Assistant Inspector of Police), in the latter, thc officcr must satisfy himself or herself that the suspect fully understands the charges leveled against him. 10

## 24, When confessions irrelevant

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 to all the circumstances, to have been caused by any violence, force, threat, inducement or promise calculated in the opinion of the court to cause an untrue confession to be made. 15

It is important that the suspect is not forced, cocrced, tortured, threatcncd or induced to belicvc that by confessing he stands to bcncfit. No promises must be madc to the suspect whether during or before the statement is recorded. In other words the officcr must ensurc that the suspect is awarc of the effect of self-incrimination and the nccd for presumption of innoccnce. The statement must bc made ZO

and written in a language which a pcrson understands beforc it is translatcd into English. The non-English version should be placed on the record side by side with the English version. There should be ^a signature on the charge and caution to prove that it was read back to thc makcr and that he signed it willingly. Having charged the suspcct, the officer may then takc the confession. Once again thc officer should ensure that the accused person spcaks in a language he understands. If the language is not English, the confession must bc translated into English which is thc language of the court and both translations must be made availablc.

When the matter comes up for trial the defence should inform the prosecution at the earliest opportunity that it intends to contest the confession. A repudiated or retracted confession becomes a subject of another trial in order to assess whethcr it was voluntarily madc. In ^a

trial involving assessors, no mention must be made about the confession in open court or to the assessors in any way before Trialwithin-a Trial. This is to avoid biasing them against the accused before the confession is admitted into evidence. 15

No witness must bc allowcd to testify about a confession madc by the accused until thc accused himself accepts the confession or until ^a Trial-within a Trial is held. This process is for the judge and the parties only. The assessors are excluded from the Trial within a Trial, again, to avoid bias. A confession is an acknowledgment that one is guilty however,within our context,the recording of the confession 20

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must comply with the rules for obtaining confessions. Once a Trialwithin a -Trial is held, the Judge must make a ruling about the voluntariness of the confession either admitting or dismissing the confession. It is only after this that evidence can be led about the

5 confession.

Wc note, sadly, that thc above procedures wcrc not followed by thc trial Judge making the whole proccss of admission of thc confession ^a nullity. It is every accused person's constitutional right to understand the charges against him and to not incriminatc himself. These arc constitutional imperatives undcr Articlcs 23 and 28 of the Constitution. Article 23 enshrincs the right to undcrstand the chargcs against him. It stipulates that

(3) A person arrested, restricted or detained shall be informed immediately, in a language that the person understands, of the reasons for the arrest, restriction or detention and of his or her right to a lawyer of his or her choice.

Article 28 states, in part that;

(3) Every person who is charged with a criminal offence shall-

(a) be presumed to be innocent until proved guilty or until that person has pleaded guilty;

(b) be informed immediately, in a language that the person understands of the nature of the offence;

## (c) be given adequate time and facilities for the preparation of his or her defence:

5 In view of thc above constitutional imperatives, the process of rccording a confession in order for it to become relevant and admissible must involve the accused person himself or herself and it must be made to a specified officcr (Magistrate or a police officer above the rank of AIP). The confession must be voluntary. No credit ought to be givcn to a confession obtained from a suspect by thc flattery of hope, agony of fear or torment of torture. In vicw of thc finding that the Trial within a Trail was not conducted, the confession becomes inadmissible and irrelevant. Since the confession formed the corc of the prosecution evidence, it means that the rest of the prosecution evidence cannot stand. We find that if the trial Judge had properly conducted the process he might have been able to gauge whether the confcssion was rclevant, admissible and if it was voluntarily taken. Failurc to properly conduct processes surrounding a trial within a trial rendcrs the whole trial a nullity. We have not l0 t5 ZO found other strong ev murder and aggravat to order for a rctrial. id cncc LI rob ld support the serious charges of cd e option availablc would be

Regarding the question whether ^a trial should be conducted, we notc that the appellants were sentenced to 55 years imprisonment on count 1 and 25 years on count 2 to run concurrently. The appellants were committed to prison on thc 4tr. may 2016, the day they were

25 sen tenced.

They had spcnt 3 years 9 months and 3 days on rcmand having becn

remanded on 7^th August 2012. This would mean that the appellants would have spent over 9 years in incarceration.

It is therefore our conclusion that ordering a retrial over 9 years later might not only occasion another miscarriage of justice but may present serious impediments in tracing witnesses, locating exhibits, and relying on latter's memory after the passage of time. Indeed we find that it would be a trial in futility. In view of the above considerations we find that the grounds so far discussed answer the most fundamental questions in this appeal. Since the trial was flawed in material particulars and offended rule and reason, the conviction of the Appellants is quashed.

The Appellants are herewith acquitted. Having held as above it would be moot to discuss the other grounds of appeal. The Appellants are set at liberty unless held on other lawful charges.

We so order 15

Maz Dated and delivered this...... Day of $23$ 2022.

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Hon. Mr. Justice Fredrick Egonda Ntende **Justice of Appeal**

## Hon. Lady |ustice Catherine Bamugemereire |ustice of Appeal

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Hon. Mr. |ustice Christopher Madrama )ustice of Appeal