[2000] UGSC 32

# IN THE SUPR]VIE COURT OF UGANDA HOLDEN AT MENGO

# (CORAM: TSEKOOKO, KAROKORA, MULENGA' KANYEIHAMBA, M U ruSA-KI KONYOGO JJ. S. C.)

## CRIMINAL APPEAL NO.6 OF 2OOO

### BETWEEN

SSEBAKIJJE JOHN :::::::::::::::::::::::::::::::::::::::::::::: APPELLANT AND o

UGANDA ::::::::::::::::::::::::::::::::::::::::::i:::::::: RESPONDENT

(Appeal from decision of the Court of Appeal at Kampala (Kalo, Berko and Kitumba JJ. A.) in Criminal Appeal No.35t99 dated 2dh November 1999).

### REASONS FOR THE COURT'S DECISION

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JOHN SSEBAKIJJE was convicted for murder by the High Court sitting at Mubende, and was sentenced to death. Subsequently, the Court of Appeal confirmed the conviction and the sentence. The appellant brought a second appeal to this Court, which came up for hearing on 7m June, 2000. After hearing counsel, we dismissed the appeal and reserved our reasons to be given later. We now give the reasons.

The conviction was based on circumstantial evidence, as no one testified to have witnessed the killing. The evidence adduced at the trial, and accepted by the trial court, may be summarised as follows: On 23J2.1995 at about 8 o'clock in the morning the appellant went running from his home to his father Yafesi Ntemu and his elder brother, Paulo Wamala, PW4. They tied

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him up, apparently because he appeared to them to be mentally unstable. The appellant's clothes were blood stained. Meanwhile, Yafesi Ntemu called LC I Secretary for tnformation, Gurasio Sali, PW3, and informed him that somebody had been killed in the place. The dead body of Emmanuel Katongole was found in the middle of a main path near the appellant's home. The body had several cut wounds which appeared to have been inflicted with a sharp weapon. The matter was reported to the LC I Chairman, and to the Vice Chairman PW2, who was father of the deceased' A repon also was made to the police. Both the LC Vice Chairman and the Police Officer PW6, D/Cpl. Mujuni visited the scene and observed that there was a trial of blood fiom where the dead body was lying up to the home of the appellant, where some signs of disturbance and a small pool of blood were found. Upon the home being searched, a sack of coffee was found in front of the house, some tobacco and bhangi were found inside the house, and as a result of information given by the appellant, the deceased's bicycle and a panga, both of which were blood stained, were found in a short grass bush behind the appellant's house. The appellant's defence was an alibi which the trial court held was discredited by the prosecution evidence.

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The appeal to this Court was based on three grounds namely:

- "1, Thal the learned Justices ofAppeal and the trialiudge erred in law and in fact in failing to evaluate the prosecution and defence evidence. - 2. Thal the lesrned Justices ol Appeal were wtong in relying (on) circumslsntiol evidence and lhus cume to a wrong conclusion.

### That the learned Justices of Appeal and the trial judge were $3.$ wrong in fact and in law in failing to find Diminished Responsibility and thus came to a wrong conclusion."

In arguing the appeal, Mr. Muguluma who appeared for the appellant, combined grounds 1 and 2 and contended that if all the evidence had been properly evaluated, it would have been found too inadequate to sustain a conviction of murder. He particularly pointed to three flaws in the evidence which he claimed were not given due regard by the Courts below, namely:

- the torture of the appellant by beating, after he was arrested, to $(a)$ force him to admit the offence; - the unexplained prosecution failure to produce in evidence as $(b)$ exhibits, articles which were recovered from the appellant's home; and - the contradictions in the evidence of the prosecution witnesses. $(c)$

We noted that the same flaws were raised in the first appeal, and were considered by the Court of Appeal.

On the question of the appellant having been subjected to beating we noted that there was a conspicuous contradiction within the prosecution evidence. Whereas one witness, Paulo Wamala, PW4, stated categorically that after the appellant was arrested, he was beaten with sticks all over the body and sustained injuries, including bleeding from the mouth and face, all other witnesses stated that the appellant was not beaten. Fred Lutaro, PW5, one of the witnesses who in his evidence denied the beating, admitted in crossexamination that he had made a statement to the police in which he was

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recorded as saying that initially, after arrest, the appellant "appeared as if he could not talk but after beating him he said he killed when he wasn't in his normal senses". In his unsworn statement to the trial court, the appellant said he was beaten severely and that he had admitted the offence in order to save his life. Neither the trial court nor the Court of Appeal, made a finding of fact on whether the appellant was beaten; and if so, whether the beating led to the appellant admitting that he killed the deceased. The Court of Appeal, however, held, correctly in our view, that such evidence as was admitted, namely evidence leading to discovery of the panga and the bicycle was admissible under s.29A of the Evidence Act. What is more, we were quite satisfied that, in coming to his decision, the learned trial judge did not place any reliance on any admission illegally induced from the appellant. While beating of suspects, as well as other forms of torture, wherever shown to have occurred, must be condemned in the strongest terms, it does not *per se*, vitiate a conviction supported and based on other lawful evidence.

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It was in evidence that the police took, from the appellant's home, the articles that had been recovered, namely the appellant's bicycle, the panga as well as bhangi and tobacco. D/Cpl. David Mujuni, PW6, who at the time he visited the scene was attached to Ntwetwe Police Station, testified that those articles were forwarded to Kiboga Police Station. At the trial, however, those articles were not produced in evidence, and the prosecution did not give any explanation for that omission. The learned trial judge adverted to this and observed:

"In his unsworn testimony accused says that upon his arrest he was informed those articles had been found at his home. Their absence from Court therefore does not cast any doubt on their being found there."

With due respect to the leamed trial judge, this observation under rates the value of exhibits, particularly in cases based on circumstantial evidence, such as the instant case. In a properly investigated and prosecuted case such articles would not only have been produced as exhibits in evidence, but the blood stains seen on the bicycle and the panga, as well as on the appellant's clothes, would have been scientifically examined and compared to the deceased's blood, and the report fiom the examination would have been given in evidence. Needless to say that if the report was positive it would have strengthened the prosecution case further. We are constrained to observe that, unfortunately, the omission in this case is not isolated. It is part of a trend of careless or indifferent handling of criminal cases, which we have continued to observe in many cases that come to this Court. Undoubtedly that trend is likely to lead to prosecution cases being lost, not because of innocence of accused persons, but rather because of being mishandled. Although in its judgment, the Coun of Appeal did not expressly deal with this issue, except to note that counsel for the appellant had raised it, we were satisfied that it must have come to the same conclusion as we did, that notwithstanding that omission, the circumstantial evidence was such that no other reasonable hypothesis could be inferred from it, except that the appellant killed the deceased using the panga found hidden under the deceased's bicycle in the grass bush behind the appellant's house.

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The learned trial judge addressed the issue of discrepancies in the prosecution evidence, and held that, on the whole such discrepancies as there were, were minor. In the first appeal, however, the issue was not raised and

so the Court of Appeal made no reference to it in its judgment. We think that on that account the appellant was not entitled to re-open the issue on a second appeal. In any event counsel for the appellant was not able to point to us any material discrepancy or contradiction in the prosecution evidence.

For the foregoing reasons, we were satisfied that there was no merit in grounds 1 and 2 of the appeal. $\frac{1}{2}$

We were also satisfied that there was no merit in the third ground of appeal. "Diminished responsibility", as a defence, is a creature of statute, which statute expressly places the burden of proving it, on the defence. (See s.188A (1) and (2) of the Penal Code Act, It is defined as:

> "such abnormality of mind (whether arising from a condition of arrested or retarded development of mind, or any inherent causes or induced by disease or injury) as substantially *impairs mental responsibility .........."*

The defence in the instant case did not call any evidence on the issue nor otherwise seek to prove that the appellant suffered from such abnormality of mind. In his unsworn statement at the trial, the appellant put forward the defence of an alibi and claimed that he had been set up, and then tortured into admitting the offence. What the appellant's counsel tried to hang on, both at the trial and on appeal, was that;

> $(a)$ PW3, Gurasio Sali and PW5 Fred Lutaro testified that the father of the appellant had told them that the latter had a mental problem; and

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(b) PW4, Paul Wamala, the appellant's elder brother, testified that the appellant had appeared to be mentally unstable.

Notwithstanding that the defence had not attempted to discharge its burden of proof, the leamed trial judge considered that evidence and held that he was "not in the least persuaded by that evidence. " The Court of Appeal also went to great length to consider the issue and in conclusion upheld the finding of the trial court. We were satisfied that neither court had erred in the evaluation of the evidence or on the application of the law' Consequently we could not fault the finding that the appellant did not suffer from any abnormality of mind'

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once again, however, we are constrained to observe that it would have been more appropriate, and possibly useful, in the interest of justice, for the prosecution to produce medical evidence of the mental and physical condition of the appellant, if he was examined after arrestras has been the practice in the past. The omission however could not be construed in favour of the appellant since the burden of proof was on him and not the prosecution.

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In view of the observations we have made on some deficiencies in the handling of prosecution cases, we direct that a copy ofthese reasons for the bourt's decision be forwarded to the Director of Public Prosecutions.

DATED at Mengo this day of June,2000.

J. W. N. Tsekooko

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# Justice of the Supreme Court

A. N. Karokora Justice of the Supreme Court

J. N. Mulenga Justice of the Supreme Court

G. W. Kanyeihamba Justice of the Supreme Court

L. E. Mukasa-Kikonyogo Justice of the Supreme Court

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