[2023] UGCA 152

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA CRIMINAL APPEAL No.628 of 2014 {Coram: Egonda-Ntende, Bamugemereire & Mulyagonja JJA}

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#### SPC NONO GODFREY ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### UGANDA :::::::::::::::::::::::::::::::::::

#### (An Appeal from the decision of Wilson Musalu Musene, J, in High **Court Criminal Session Case No.88 of 2009 dated 13.05.2012 at Gulu)**

*Criminal Law – Murder c/s 188 and 189 of The Penal Code Act – Sentence- Life* imprisonment- Circumstantial evidence - Last seen Doctrine -Conduct of 15 *appellant after commission of offence – illegal sentence.*

# JUDGMENT OF THE COURT

#### **Introduction**

The appellant, No. 1556 **SPC Godfrey Nono** was indicted on the 20 Murder charges contrary to sections 188 and 189 of the Penal Code Act, Cap 120 Laws of Uganda. He was convicted and sentenced to life imprisonment.

#### Background

- The brief background to this case as gleaned from the lower 25 court record is that on $8^{th}$ January 2009, the body of No. 0049 SPC Pius Reuben Oringa (the deceased) was found lifeless in a hut at the Mucwini Internally Displaced Persons (IDP) Camp, Paryeko-Tel Village in Kitgum District. The hut in which his - remains were found was said to belong to the appellant. The 30 appellant and the deceased were both special police constables, attached to the Anti-Stock Safety Unit stationed at Madi-Opei. It was an undisputed fact that Oringa, the deceased and the

appellant were known to be on good terms and lived together amicably. The deceased was said to be an uncle to the appellant. On 7^th January 2009 the appellant and the deceased whiled away the evening together. Earlier in the day they had travelled to Lira to pick up their salaries and then they returned to their $\mathsf{S}$ village in Paryeko-Tel but later proceeded to Mucwini Trading Centre where they had a social evening together watching movies. The deceased slept in the hut of the appellant, like he always did. He was found dead the following day. The appellant was quiet when asked about what happened to the 10 deceased. In his defence he stated that he did not sleep in the same hut as the appellant for reason that the appellant had a female guest. According to the post-mortem report examination, the cause of death was severe asphyxia (lack of oxygen) as a result of obstruction of the upper airway by tight 15 ligation by use of a human fist. The deceased was strangled with human hands. The appellant was indicted and convicted for the offence of Murder and sentenced to life imprisonment. Dissatisfied with the sentence, the appellant appealed to this court against conviction and sentence on two grounds, 20 specifically that;

> 1. The Learned Trial Judge erred in law when he convicted the appellant on unsatisfactory and uncorroborated circumstantial evidence and without cautioning himself thereby occasioning a miscarriage of justice.

2. The Learned Trial Judge erred in law and fact when he sentenced the appellant to life imprisonment, which is illegal, harsh, and excessive thereby occasioning a miscarriage of justice.

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At the hearing of the appeal, the appellant was rcprcsented by Mr. Stephen Lobo Akera while the rcspondcnt was rcprescntcd by Ms. Caroline Marion Acio thc Chief Statc Attorncy. Aftcr the covid-19 rcstrictions werc liftcd, the appcllant was able to physically be prescnt in court. Both counscl rclied on writtcn submissions which havc bccn relicd on by this court in ordcr to arrive at this Judgment. We have rclied on thc authorities provided by both counscl and also on other material bcyond what both counsel availcd to us.

## Submissions for the Appellant

Counscl approachcd both grounds scparatcly, on thc first ground, counsel faulted the Learned Trial Judge for relying on circumstantial evidencc without any caution. Counsel contcncicd that thc l-carncd Trial Judgc ignorccl thc fact that thc conduct of the appcllant was not in any way incriminating as he did not flee the village after the death of the clcceased. Counsel furthcr criticised thc Lcarncd Trial Juclgc for ignoring csscntial facts that wcakencd the evidence. It was submittcd that the Learncd Trial Judgc ignorcd and did not pay attention to the facts incluc-ling that PW3 and PW4 wcrc inforrnccl by an unknown person about the dcath of the dcccasccl. Secondly, that the post-mortcm rcport was not satisfactory on thc other issucs that could havc caused thc death of thc dcccascd. It was counsel's submission that poor invcstigative mechanisms,

failure to collect and samplc fingerprint cviclcncc, provcd fatal to thc case. Counscl was critical of thc Lcarr.rcd Trial Juclgc for ignoring the fact that thc appcllant and thc deccascd did not have any grudge and thcrefore there was no motive provcd. Lastly, counsel argued that thc sketch map included illustrations of scvcral rcsidcnccs around thc scenc with pcoplc who could have possibly seen or hcard noisc or sccn violcnce.

Regarding the sccond ground of appcal, counsel contcndcd that a custodial sentencc of lifc imprisonment was harsh, extremely cxcessive, and illegal. Counscl also faulted thc Learned Trial Judgc for not taking into consiclcration the pcriod spent on remand. Counsel for the appellant prayed to the court to allow the appeal or in thc alternative to rcduce the scntence to 13 years. 10

#### Submissions for the Respondent 15

Counscl for thc rcspondcnt hancllecl cach of thc two grouncls separately. On thc first ground, counscl contendcd that the Learned Trial Judgc cautioned himself about thc' dangers of rclying on circumstantial evidcncc although hc did not expressly pronouncc the caution. Counscl furthcr contcndcd that when the dcceased was last scen alivc hc was with the appcllant and this was corroboratcd with thc appcllant's conduct after crimc. Counscl reliccl on thc cvidcncc that the appellant avoided his hut until thc dcceased was found dcad in thc hut. Counscl argucd that thc cvidencc highlightccl was incompatiblc with thc innocencc' of thc appellant and was 20 25

incapable of any other explanations upon any othcr hypothcsis

than that of guilt of the appellant. Counsel argucd that thc evidence on the filc proved bcyond rcasonable doubt that thc deceased's causc of dcath was strangling.

5 Regarding the question of fingerprints and the blood stains as evidence, the respondent contended that no evidcncc from thc Government chcmist was produccd in court and that thc court cannot depend on evidence which was not placed before it to make a decision and that thcrc was no logic to begin assuming that it would havc bccn in favour of thc appellant.

- On the second ground of appcal, counsel contended that the Leamed Trial Judgc propcrly cvaluatccl the mitigating and aggravating factors and rightly found that the lifc scntcncc was well deserved. Counsel argued that the life sentence was ncithcr illegal nor excessive. It was counscl's praycr that thc scntcncc 10 - from the lower court be confirmed and thc appeal bc dismisscd. 15

### Consideration of the Appeal

This court is alivc to its duty of as a'l't appcllatc court. Wc arc tasked to subject thc evidencc and othcr material adduccd at trial to a fresh ancl cxhaustivc scrutiny and where ncccssary to draw our own conclusions ancl infcrcnccs, bcaring in mincl, however, that wc did not have opportunity to see thc witncsscs testify, first-hand. See: Fr. Narcensio Begumisa & Ors v Eric Tibebaaga SCCA No.17 of 2002, Kifamunte Henry v Uganda SCCA No. 10 of 1997, The Executive Director of National Environmental Management Authority (NEMA) v Solid State 20 25

# Limited SCCA No.15 of 2015 (unreported) and Pandya Vs R [1es4 EA 335.

We shall dispose of cach of the grounds of appcal scparatcly, starting with the ground on unsatisfactory, uncorroborated circumstantial evidcncc.

We observc that to convict the appcllant the trial Judgc depended cntirely bascd on circumstantial evidence. The Learncc.l Trial Judgc on thc'last secn' doctrint: which hc asscrtcd had been corroboratcd by thc conduct of thc appellant. Hc arrived at the conclusion that there was no other hypothesis othcr than that of guilt . Counscl for the appcllant was critical of this approach. He invitcd this court to find that the evidcncc on 10

record was unsatisfactory, uncorroboratcd and unreliablc. Counscl submittcd that that thc lcarncd juclgc did not caution himself on the dangers of rclying on such cvidcnce. 15

The law on circumstantial evidence is wcll scttlcd. In Amisi

Dhatemwa alias Waibi v Uganda SCCA No.023 of ¹⁹⁷⁷ Ssekandi J (as he then was) stated that: 20

> "lt is true to say that circumstantial cvidcncc is vcry often the best evidcncc. It is evidcncc of surrounding circumstances which, by undersigncd coincidencc is capable of proving facts in issuc quitc accuratcly; it is no derogation of evidcnce to say that it is circumstantial. See R v Tailor, Wever and Donovan.2T Cr. App. R. 20.

However, it is tritc law that circumstantial evidencc must always be narrowly examinccl, only bccausc evidcncc of this kincl may bc fabricated to cast suspicion on anothcr. It is, thereforc, nccessary before drawing the infcrcncc that the circumstantial evidcncc to bc surc that thcrc arc no other co-cxisting circumstanccs which would wcakcn or destroy the inference. See: Teper v P. (1952) A. C. 480 at p 489 Scc also: Simon Musoke v R (1958) E. A. 25, citcd with approval in Yowana Serwadda v Uganda Cr. Appl. No.11 of 1977 (U. C. A)."

We acknowledgc ancl apprcciate that circumstantial evidence, in lA-Uf is evidence not drawn from direct obscrvation of a fact in issue. AIso known as indircct cvidcncc it clocs not directly

provc a fact in disputc, but a reasonablc infcrcncc about thc existence or non-cxistcncc of a fact can be drawn, based on thc evidence. It is diffcrcnt from dircct cviclcncc, which cstablishcs the existence or non-cxistcnce of a fact on its own. 'fhc law clocs not differentiate thc wcight to be attachcd to circumstantial or direct evidencc; in Iaw thcy arc to bc trcatccl cqually. Howevcr, just Iike there are weakncsses with usc of cycwitness accounts, circumstantial evidence ought to be trcatcd with the utmost care and should only bc rcliccl on if it lcacls to thc infercnce of guilt, with mathematical accu racy. 15 20

In deciding thc matter now before us thc l-carnccl Trial Judgc relied on the'last sccn' doctrinc couplccl with thc conduct of thc

appcllant aftcr thc deccascd's body was discoverccl to find thc appellant guilty. In his judgment he hcld that,

" . . . As long as all prosecution witnesscs conf irmed that hc was thc last pcrson sccn with thc dcccascd whcn hc was alive, and accused did not deny, and the following day deccased is found dead, strangled in his housc, then accuscd has bcen propcrly pinncd at thc sccnc of crimc. Therc is no other hypothesis in the circumstanccs other than that accused knew how his unclc was killed or actually killcd him. Why should accusccl chosc to be adamant as if he was a deaf mute who could not speak, and even could not tell any ncighbour or anybody that there was a problcm in his housc. I Ic prctcndcd titl thc body was discovered at 1:00 pm the following day and yet he was all along with the deceased up to thc last minutc. The accuscd killcd the dcccascd and this court thcrcforc finds and holds that the fourth ingredient of the offcnce of murder has been proved by the prosecution bcyond rcasonablc doubt."

In the above extract from the Judgment, thc trial Judge came to the conclusion that thc appcllant was rcsponsiblc for the murder of the deceased because he kept quiet like a person who was hard of hearing. Wc would not bring ourselves to usc thc language employcd by the learned trial Judge sincc it may bc considered inscnsitive to a section of the society ('l'he language was otherwise acceptable as old usagc, in times past). More

importantly though, the conclusion drawn by this court from the inferences drawn by the lcarnccl trial Judgc in the silcncc and distance of thc appellant suggests that hc was found guilty on the wcakness of his defence and on the basis of the'last scen'

doctrinc. 5

> Counsel for thc appcllant submittcd that thc concluct of the appellant was not in any way incriminating sincc the appcllant did not cscape from thc villagc but staycd around with pcoplc until the deceasccl was discovcrcd. Whilc adc-lrcssing thc issue

- regarding the conduct of the appellant, the learned trial Judge questioned why thc appellant did not disclosc to any of the neighbours the problem which had occurred in his hut let alonc the fact that thc appellant appearcd to distancc himself from it during the entirc pcriod. 10 - In his dcfcnce the appellant tcstificd to thc cffcct that on the fateful day he was in the company of 4-l other pcople, including the appcllant when they travclled to pick up thcir salarics from a bank in Lira. 'Ihe group travellcd from Mucwini Tracling Centre in Kitgum to Lira. They left Mucwini at 1.00pm and rcturncd to Lira in thc cvcning. 15 20

He further testificcl that on rcturning to Mucwini 'l'racling Centre, the appellant and Oringa whiled the cvcning away, watching movics at thc trading ccntrc.

Thc appcllant narratcd that arouncl 9.30 pm Oringa informed

him that he needcd to leave in ordcr to mect an undisclosed female fricnd. According to thc appcllant, he spent the night at 25

the home of onc Otto, having lcft the hut thcy sharcd to the deceased and the unknown girlfriend.

His testimony was that on the following morning hc spent time rcpairing his bicyclc and only managecl to rcturn homc arouncl

- 5 1:00pm, by which time, thc appellant had bccn found dcad. He stated that on reaching the scene hc found pcoplc crying and dccided to call thc Officcr-in-chargc of Kotokoro Military Detach. He was advised to report thc mattcr to thc Kitgum Central Policc. Indecd, whcn he rcportcd the dcath of Oringa to the Police in Kitgum hc was dc.tained for his own safcty anc.l 10 - later charged.

His defencc couplcd with the cvidcncc of PW1, thc scenc-ofcrimc-officcr, scemcd to lead to scvcral lincs of invcstigation which were, apparently, not followed. These included the

allegation that the hut, measuring 1.5metrcs, in which the dcceased was founc'I, did not bclong to thc appcllant but to his brother. The cvidence of PW4 was that the two hacl been seen togethcr earlier in thc evening and later walkcd away togcthcr. He did not know if thc two rcturncd and spcnt the night in thc same hut or not. 15 20

The above evidence opens up other leads which ought to have been cxplorecl. The invcstigators ought to havc rulcd out thc possibility that the deceased rcccived a female visitor. Did anyone see the appcllant lcave thc hut in which the body was

found that morning? Expcrt evidcncc was that thc dcccased was strangled by use of human hancl. If this was indccd thc casc, 25

why did the investigators not lift the finger prints found all over the neck?

In |agenda |oshua v Uganda CACA No.001 of 2011, this court found that a person who was last seen with thc dcceascd had the duty to explain how thc dcccascd mct his dcath in accordance with thc 'last seen doctrine'. fagenda citcd with approval the Nigerian case of Taludeen Iliyasu v The State (2015) LCN/4388 (SC) where it was hclcl that applying thc'last seen doctrine' which applics to homicidcs, our vicw is that this doctrine creates a rebuttable presumption to the cffcct that thc

person last seen with a dcceascd pcrson bears full rcsponsibility for his or her death."

In law, the last seen presumption secms to shifts thc burden of proof or persuasion to the opposing party, who can thcn attempt to rebut the presumption Nalongo Naziwa Josephine v Uganda SCCA No.35 of 2014.

In the present appeal, it is the appcllant with whom thc deceased was last secn alive. His dcfencc as notcd abovc, included an alibi which ought to havc bccn rcbuttccl by thc respondent/ statc sincc thc appcllant borc no c'luty kr provc it. Whereas the general rulc in law, is that presumptions takc the place of facts if unrebuttcd, scc Nalongo Naziwa fosephine v Uganda SCCA No.35 of 20'I.,4, it is cqually tritc that tl.rc prosecution in this case, like in all matters criminal, bears thc burden of proving thc casc against thc accusecl beyoncl reasonablc doubt. This burdcn docs not shift but rcmains with 20 25

the prosecution throughout. 'l'o this cnd, an accuscc{ can only be convicted on the strength of the prosecution case anc'l not on the weakness in his dcfcncc. Scc: Sekitoleko v Uganda 11,9671 EA 531) 5. It is also true that any doubts in thc casc must bc rcsolved in favour of an accused person; scc Mancini v DPP(1942)AC 1 and Abdu Ngobi v Uganda; Uganda Supreme Court Criminal Appeal No. 10 of 1991,1.

Wc find that in questioning thc behaviour of thc appcllant, the lcarned trial Judgc appcarccl to dccidc this mattcr on thc weakness of the dcfcncc put up by the appellant, rather than thc strength of the respondent/prosecution case, a position which is untenable in criminal [aw. 10

As we noted earlicr, this mattcr rested solely on circumstantial evidence since thcrc was no cycwitness account to thc murdcr of Oringa. Howcvcr, thc rcspondent clid not cxplorc thc othcr lines of investigations Icading to wide speculation as to whcther there could havc becn a third hand in the murder. Failurc by the rcspondent to closc thc loopholcs in thcir cvidcncc lcads to ^a reasonable doubt as to whcther it is thc appcllant who committed the murder. It cannot be over-emphasiscc.l that in criminal trials thc standard is that a mattcr must bc provcd bcyond reasonable doubt which by implication means any reasonable doubt, once raiscd, must be resolved in favour of the 15 20

accused. 25

Upon carrying out a cautious analysis of the cvidencc above, we have not discovercd any strand of evidence that would conncct

the appellant to thc death of thc dcccased cxcept mcrc suspicion. Thc position of thc law is that suspicion howcvcr stron& is not sufficient reason to convict a pcrson of an offencc which is not provcd against him beyond reasonable doubt.

5 See R v Israel Epuku s/o Achietu (1934) 1 EACA 165.

We find that it was unsafe to convict the appellant on circumstantial evidcncc that was wcak and speculativc. Wc sct aside the conviction and sentence of lifc imprisonment and acquit the appellant.

He is immcdiatcly sct at liberty unless held on othcr lawful charges.

Dated at Gulu this ... K[-- day of \ozs

F EDRICK EGONDA-NTENDE, ²⁰ IUSTICE OI] AI'I'EAL

CATHERINE BAMUGEMEREIRE, IUSTICE OF APPEAL

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IRENE MULYAGONIA,

TUSTICE OF AI'I'EAL