[1946] EACA 20

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Joseph Sheridan, C. J. (Kenya), Sir G. GRAHAM PAUL, C. J. (Tanganyika) and BARTLEY, J. (Kenya)

#### REX, Respondent (Original Prosecutor)

v

# GEORGE WILLIAM SENKATUKA, Appellant (Original Accused) Criminal Appeal No. 275 of 1945

## (Appeal from decision of H. M. High Court of Uganda)

Criminal Law—Murder—Circumstantial evidence.

The appellant was convicted of the murder of the Katikiro of Uganda wholly on circumstantial evidence. He appealed.

*Held* (16-1-46).—Circumstantial evidence, in order to sustain a conviction, must point irresistibly to the accused and in this case the evidence leads to the irresistible conclusion that the accused murdered the Katikiro.

Appeal dismissed.

. [No important principle of law is involved in this case and it is reported on the ground of general interest and on the question of circumstantial evidence. The appellant appealed unsuccessfully to the Privy Council.—*Editor*.]

Appellant present, unrepresented.

Todd, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The accused, George William Senkatuka, was convicted of the murder of Martin Luther Nsibirwa, the Katikiro (Prime Minister) of the Kingdom of Buganda, on the 5th September, 1945, by the High Court of Uganda (Mr. Justice Manning) sitting with Assessors at Kampala and sentenced to death. He appealed to this Court against his conviction and sentence. The record of the trial evidences the great care taken by the learned Judge, and his judgment is of such a lucid and comprehensive character as to simplify our task in considering the appeal. The two Assessors expressed their opinions very definitely that the accused had been proved guilty of murder, giving reasons which indicate that they had weighed and considered the evidence. The case against the accused rested wholly on circumstantial evidence and the learned Judge was careful to direct himself that before a conviction could be had the evidence must lead to an irresistible inference that the accused had murdered the deceased. In conducting his appeal the accused elected to appear in person, although he knew that the Court was prepared to assign Counsel to appear for him without cost to him. We had before us his signed statement that he did not wish to avail himself of the offer. Having heard his submissions we intimated that we did not require to hear learned Crown Counsel.

It would appear from the evidence that the Katikiro was accustomed to attend a daily morning service at Namirembe Cathedral, which is held at 7.15 a.m. On the 5th September, 1945, he, accordingly, was driven to the Cathedral by his driver, Malaki Matovu, being accompanied by a Maluka Chief, Yakobo Kagodo, who had been staying with him as a guest for about three weeks, and who daily attended the morning service with the Katikiro. The evidence of these two witnesses is to the effect that on arrival at the Cathedral on the morning of

the 5th September when they got out of the car the accused approached the Katikiro, greeted him, and had his greeting returned by the Katikiro. It was the custom of the latter to enter the Cathedral by a side door. Malaki and Yakobo entered by the main door leaving the Katikiro outside and when they had traversed some 25 yards up the aisle shots rang out and on coming out of the Cathedral they found the Katikiro lying dead a short distance to the rear of his car. The accused, who was the only person visible in the Cathedral grounds when these witnesses had entered the building, was nowhere to be seen when the witnesses came out and no other person was seen by the witnesses. The bell-ringer, Asa, who had been employed as such for five days, confirmed the evidence of these witnesses by saying that while he was ringing the bell he noticed the accused coming from the left side of the Church after the witnesses had entered, passing his line of vision and that he heard "something rattling like a *debe* tin" a very short time after he passed out of his sight. The customary alarm was raised, drums being beaten, and people gathered at the spot where the Katikiro's body lay. The evidence of these three witnesses is important and was believed by the learned Judge. The evidence of the first two established that the accused and Katikiro exchanged greetings, that no other person was present in the vicinity at the time, and that some minutes, at the most, afterwards the shots rang out, the murder had been committed and the accused had disappeared and no other person was to be seen.

The next stage of the evidence refers to the discovery of the accused by the witnesses Sowedi, Eriya and Kidza at a place some 400 yards from the dead body down the hill from the Cathedral on what may be referred to as the School side of the Cathedral. The place is beside Sowedi's house and the accused had fallen when he was seen by Sowedi. The alarm had sounded by this time and the accused appeared to be going away from the direction of the alarm. As the learned Judge put it the accused was "seen just after the alarm at a distance down the hill in circumstances which lead to the inference that he was endeavouring to escape". This finding is a fair deduction from the evidence of Sowedi, Eriya and Kidza, the two latter having come on the scene immediately after<br>Sowedi had arrested the accused. The evidence of these witnesses was accepted. It is important to observe that not only did the accused appear to be going away from the alarm but that he asked that he should be taken to the Police Station and not back to the alarm. On being taken back to the dead body, according to the evidence of Archdeacon Herbert "he looked as though he didn't care at all about the matter in hand"—he appeared to be indifferent and was only concerned with those tying him not breaking his watch. The accused before this Court submitted that his clothes were dry when arrested. The evidence is that his coat and shorts were dry but that "his shoes were wet, stockings covered with grass" (Archdeacon Herbert), this evidence confirming that of Kidza who said: "Accused was dressed as now, his stockings were wet and small particles of shrub on them. Shirt and shorts were dry".

It is convenient here to refer to the accused's story as to his presence at the Cathedral that morning. He said that he had been accustomed to attend the morning service about three days a month and that on the morning of the murder he had arrived on his bicycle about fifteen minutes to seven; that two minutes after his arrival he missed his bicycle, concluded that it had been stolen and went in search of it, the bell not having begun to ring by then, and that when he was found by Sowedi he was chasing a thief. He made no complaint to anybody that his bicycle had been stolen and this the learned Judge rightly commented on adversely. In other words his story was that he had never seen the Katikiro or his escort that morning. The learned Judge rejected this evidence in favour of the evidence of Malaki and Yakobo. This he was not merely entitled to do, but in our view the accused's story does not seem credible when viewed in the light of all the other evidence on this aspect of the case.

One other matter we must refer to and it is of importance in the chain of circumstantial evidence. The accused has insisted that he used to attend the morning service about three days a month and that his presence at the Cathedral on the 5th September was for that purpose. Not only did he fail to produce any witness that he had ever attended that service, but Archdeacon Herbert, Malaki and Yakobo, regular attendants at the service, gave evidence that he had never attended. The Archdeacon was very certain and emphatic when he stated "I can say positively accused never comes to morning service", earlier having said "I have never seen the accused at the service". Apparently not more than 12-15 people are accustomed to attend the service. The learned Judge was evidently of the view that the accused's statement that he had attended this service previously was not acceptable, for in his judgment he said "There was evidence" that the accused had never attended this early service on any previous occasion" and later "Then there was the unusual presence of the accused at the Cathedral that morning". The finding clearly was that the accused's presence at the Cathedral on the morning of the 5th September was not for the purpose of attending the service. That finding is justified on the evidence and the fact is most important.

A search was made for the pistol used in committing the murder and it was not until Thursday, the 6th September, at 2.45 p.m., that it was found in a flower bed by the side wall of the School which is reached by a flight of steps leading down a high bank from the Cathedral grounds. It was conceded by Mr. Russell for the defence at the trial that it had been amply proved by the expert evidence that the murder had been effected with that pistol, Ex. J. M.6. That evidence appears to be irresistible and is not attacked in this appeal

Five shots were fired at the Katikiro and five cartridge cases were found near the body, two were respectively 4 ft. and 12 ft. from the head and the other three at respective distances of $31$ , $32$ and $35$ ft. from the feet. On the 7th September, the pistol was examined by Mr. Jerome, the finger print expert, for impressions and none could be found and the investigating authorities then assumed that whoever had used the pistol had either wiped off the finger prints or had wrapped the pistol in a cloth at the time of firing.

We shall now refer to the evidence regarding the accused's handkerchief, Ex. J. M.4, which forms a very important part of the case, and the importance of which was not realized until it was found that the pistol revealed no finger prints. The following passage in the judgment sets out the relevant particulars: "The accused was arrested and taken to the Police Station at Kampala. He was searched and his property was taken from him. This included a handkerchief. When the time came to put him before a Magistrate he was given back his property, including his handkerchief. He put it in his pocket. He was remanded to the Central Prison at Luzira. On his arrival there his clothes and belongings. including his handkerchief, were taken from him. All this happened on September 5th. On September 7th Mr. Mullin, an officer of Police, went to the Prison and took possession of the accused's effects. He had the handkerchief subjected to an examination by Mr. Burbrook and by Mr. Atkinson, the Government Chemist. The latter observed in the handkerchief eleven small fragments of greyish matter which looked like charred matter. He tested them chemically but was unable to ascertain what ten of them consisted of. The eleventh gave the reactions which are given by smokeless powder, a nitro compound such as