[1990] UGSC 18

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA AT

иπмас CRIMINAL/APPEAL NO. 8/1989

(CORAM: ODOKI, J. S. C., AND PLATT, J. S. C.) WAMBUZI, D. J., **BETWEEN**

YOWANA SSERUNKUMA ::::::::::::::::::::::::::::::::::: APPELLANT VERSUS

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> (Appeal against conviction and sentence of the High Court decision held at Masind by (The Honourable Mrs Justice C. M. Kato) Dated 10th April, 1989).

## JUDGMENT

This appeal raises two general questions of importance, whether the learned Judge could properly have accepted the evidence offered of identification; and if that failed, whether the appellant really had possession of the alleged stolem property. If the latter proposition holds good, the final question will be whether the proper inference to be drawn from such recent possession was that the appellant was the thief, and not the receiver of the stolen property.

The appellant appeals from his conviction of aggravated robbery contrary to sections 272 & 273(2) of the Penal Code Act AND SENTENCE OF DEATH. THe appellant contends that his identification by the single witness Mrs Oryeda (PW2) could not be relied upon. Secondly, he contends that he was not found in possession of the property stolen during the robbery; not that he led the Police Officer Detective Corporal Obina-Eson (PW6) to a place where two items of the stolen property were found.

We entirely agreed with the appellant that the evidence of identification relied on by the prosecution was not evidence of any value, and certainly could not be relied upon in the way indicated by the learned Judge.

Mrs Oryeda did not give straight forward evidence. It is not disputed.that she was asleep in her house, when she was disturbed. She seems to have got out of bed. The man in her room forced her back to bed with a knife at her throat, threatening to kill her if she raised an alarm. Mrs Oryeda was covered with a bed sheet until she heard the man jumping out of her window. She then raised an alarm and in the morning reported to the police.

Several matters arise from Mrs Oryeda's evidence, and the ... first is the date of the robbery, because that might influence the finding whether the appellant was in recent possession of STOLEN property. The second question concerns the lack of pro- .duction of the first Police Report made by Mrs Oryeda. The third question is whether there was an unofficial identification parade, and if so, what its effect was.

Mrs Oryeda could not recall any dates, but she recollected that she identified her proerty, about one week after the robbery. The identification of the stolen property, took place on 2prd April 1985 according to Detective Corporal Obina-Bson. There is no reason to doubt that date. A week earlier would put the robbery on 16th April 1985\* Mr Oryeda told the Court that he 19th April 1985, after the robbery. The inference seems to be that the robbery took place on 1?th or 18th April. If the choice lies between 16th and 18th April, then or about 17th April, 1985 returned home on 18th April or the charge was reasonably framed as on

The first report to the police by Mrs Oryeda was not produced in evidence. It was offered as an exhibit for identification, and marked as such. But it never matured into a proper exhibit by proof by its maker. This arose because it was used to discredit Mrs. Oryeda in cross-examination. Sometimes a previous statement need not be exhibited if its contents are accepted by tne witness.

**r**

But Mrs Oryeda did not accept the terms of the statement. She protested that she had told the police that she had recognised the person who had been in her room. But she asserted that she had told the police that she .had suspected Tibamwenda to have been involved. That involves Mrs Oryeda's first report which was recorded and her second report, that she suspected Tibamwenda to have stolen the property. The first report was not produced and therefore we cannot exactly clarify from this source what the and secondly, we cannot read what her or could d^te of the robbery was; first report was whether or not she identified anyone, ^| identify anyone.

It might be inferred that if Mrs Oryeda had had to return to the Police Station to make a second report that she had not made a proper of full report on the first occasion. Tibamwenda was at first arrested. The person receiving^a first.report.should give evidence as to\_what that, \_firsJL\_report\_ wasL. That was not done. However Mr Obina-^son conceded that Mrs Oryeda had first said unknown person. That would explain why Mrs to produce the first report. 11 was\_c,er±ainly~ c areless of the defence not to .produce\_it• uryeda had made that the property had been taken by an a second report of her suspicions. !7' ^I It ought now to be standard practice,

In these circumstances, it was iiaperaCltt\* that the investigating Police Officer should hold 23rd April 1985. None was held. Instead Mrs Oryeda gave confusing evidence suggesting that there had been an unofficial parade at the police Station whereby a number of men were grouped together with the appellant, and she identified the appellant. to what happened. Mrs Oryeda\*s evidence also suggests that she saw the appellant in possession of property which she identified as her property. She recalled: appellant's arrest on an identification parade, after the No police officer testified as

.... A...

*5*

were. case". "Sometimes later went to the police where I found the accused arrested with some property. The property was shown to me and I identified it as my property. I identified the radio cassette and a wristwatch. The accused took the Police where other things They returned with more property x •• I also identified the brief

In cross-examination she related:-

"1 identified the accused from many people in the Masindi police Station. Accused was among 6 people. The accused had trousers and 4 other people were putting on trousers, only one suspect had a pair of shorts."

Mr. Oryade simply said when they were called, they knew that they were going to see the person who itole their property. The accused had been shown to Mr Oryeda in the absence n.f his wife.

Mr Obina-i£son did not know apparently how Mr and Mrs Oryeda identified their property, or anything about the ''parade" •

On this evidence it is not clear whether Mrs Oryeda had seen the appellant under arrest with her property and going out to show the police more property; or whether she identified the appellant in a group of men without that help. reliance can be placed on her alleged identification of the appellant at what seems to have been an unofficial identification parade, nor can her evidence of identification in court be relied upon. Whilst given in evidence. can be accepted if it is fair, we would urge the prosecution to hold 1(0 proper identification parades, the reports of which can b^ sometimes the choice of an accused from amongst a number of men **R** In these circumstances, no

The result is that Mrs Oryeda's evidence that she saw the appellant'^s face at the time of the robbery cannot be relied upon, because of her first report, and the circumstances in which she There is a danger of confusion with Tibamwenda. "identified" the appellant at the Police Station.

It is of interest that Mrs Oryeda was held to have had enough light and time to recognise the appellant's' face, but could not recognise any clothes that he wore. It does not seem that the light was very bright and certainly the position and area of illumination of the light was not stated. But be that as it may be her attention was taken up with the knife at her throat. Certainly she was in a desperate situation.

The fule is, as the learned Judge pointed out, that the evidence of a single identifying witness at night may be accepted, but only after the most careful scrutiny, and then what is wanted is other evidence to confirm that the identification is not Mistaken; (^967) EA 583\* These authorities are all well known; but with great respect, it does seem to us that they are more honoured in the breach. A careful scrutiny is not the same thing as an elaborate justification accepting dubious evidence. A cereful scrutiny means for example comparing a first report with evidence in Court; really testing the effect of light - what type it was, where it was, and how it illuminated the scene? Questioning the time and questioning why Mrs Oryeda did not see the clothing. A good example of all the <\areful tests to be carried out is set out in TURNBULL VS R. (1976) Evidence and Practice 41st ED. P.896. The prosecution ought to bring out these points and others which are relevant, and the Judge should see that that is done. It is important, of course, that the witness should be honest; but the ultimate test of honest testimoney is accuracy. Ho reliance can be placed on Mrs Oryeda's accuracy. **MS**E. R. S^9 or may be gathered from Archbold Criminal Pleading, ^V ABDULLAH BIN WEKDO (1933) 20 EACA P.166 and P.168, RORIA VS HEP,

possession by the appellant of stolen property. On that basis, the conviction depends, if at all, on the

*5*

Mr and Mrs Oryeda (PW2 & testified that they lost a Sonex Radio Cassette, briefcase, metallic box containing books, some money and a blanket. On 2Jrd Appil 1985, they recognised first the radio and watch, and then the metallic box and briefcase. The blanket and money was not there. The police lost trie radio and metallic box. They produced the watch and briefcase. Of these articles the Judge ruled out the identification of the watch because of a contradiction in its state of disrepair between Detective Corporal Obina-Eson's evidence and that of Mr and Mrs Oryeda, the witness Stephen City (Ptf5) and the witness George Stephen Musasizi (PWJ). The last four persons recalled that the watch was broken and had glass and chain". Mr Obina thought that the watch had been complete when he saw it. Unfortunately, due to the polictical disturbances in 1986, two of the identified objects, the radio and box, were lost from police custody; and presumably, also the exhibit records to check the state of the watch. However that may be, the learned Judge chose to rely on the evidence of Mr Obina as against that of the four other witnesses. He was entitled to do so. We are loathe to find him wrong on a choice of fact, without having seen the witnesses. "no a lady's Omega watch, money,

of the four witnesses. Mr Oryeda testified that he had spoken to a watch repairer called Stephen City (PW5) telling him to look out for Mrs Oryeda's watch since Stephen City had previously repaired it. He said he had also gone to Musaizi, a radio repairer, (Pw5), and had told him to look out for the radio that Musaizi hud previously repaired. Musaizi did have a visit from the appellant who was looking for a market for a radio. (according to Musaizi he had not heard of the loss before the appellant came to him, and it would seem that he did not at first realise that he h\$d The finding, of course, caused some criticism of tue evidence

repaired the radio). There was some bargaining, and then us Musaizi had no money he went to Stephen City with tiie appellant. This radio was a Sonnex radio cassette, as Mrs Oryeda recalled), of which only the radio part was working. Stephen City asked the appellant to bring the radio back the next day. Stephen City then told Musaizi that he had been alerted about some stolen property including a radio and a watch. It was now that Musaizi recalled that he had repaired the raido for the ''Accountant at Masindi", i.e. Mr Oryeda. Stephen City and Musaizi conferred with Mr Oryeda who agreed to give Stephen City shs.3,000/- as a payment towards the purchase of the radio and watch being sold, and so lay a trap. Stephen City and Musaizi saw the appellant the next day. The bargain was being concluded, and as the appellant was writing out an agreement of sale, Stephen City went outside. He called in Detective Corporal Obina-Eson and the latter arrested the appellant with the raido and watch. (not a ''Sonny"

As Detective Corporal Obina-Eson was making preliminary inquiries, the appellant volunteered information which amounted to a confession. It was inadmissible by dint of section 24 of the evidence act as amended in 1985 (Act 2 of 198\$). specific ground of appeal, but we will note that this happened and we will deal with it later. a result of what the appellant told Mr Obina-Eson, a police party under the charge of Mr Obina-Eson, went with the appellant to a certain place. There the appellant uncovered the metallic box and briefcase. The contents of these articles belonged to Mr Oryeda; and the briefcase could be specially identified by marks on it. The radio was identified as a Sonnex with only the radio working; and the watch we have dealt with; therefore altogether the appellant possessed three of the four main items of property stolen. This was not a What can properly be said is, that as Counsel for the appellant drew attention to discrepancies in the evidence, and pointed out the appellant's alibi. Counsel's main complaint was that the prosecution case was fabricated and the articles planted on the appellant. The witnesses had been unable to state what the bargain had been; and they had disagreed amongst themselves as to what had happened.

It is true that apart from some minor discrepancies, there are others which would have to be considered more carefully. The most important question is whether the Oryeda family, Stephen City and Musaizi on the one hand and the police on the other hand are reliable when they assert that the appellant had possession of the stolen property.

It would be as well to face two more errors at this stage. It was unwise of the prosecutor to allow the Detective Corporal to tell the Court that the appellant was known to the Detective, because in March the appellant had reported to the police to have his licence from Upper Prison extended. 2-t may have been spoken too quickly for the Court to present the Assessors from hearing it.

The second error is that the Detective Corporal was not permitted by law to receive the appellant's alleged confession (Sec section 24 of the evidence Act The Detective Corporal related that he had cautioned the appellant before arresting him. During the course of the introduction the appellant told the Detective Corporal tnat the appellant as amended by xct 2 of 1985).

> "had robbed with John Tibamwenda and that he knew where some of the things were hidden".

where the things were. The appellant led the police party to a spot 500 metros or 600 metres in front of the Masindi Hotel in the Valley, where the appellant revealed the briefcase, and about 30 metres further away he showed the police the metallic box. The The Detective then asked the appellant to lead him to the place

party then returned to the police station, and recorded those items in an exhibit book. As Counsel contended, the confession skould not have been allowed in by the prosecutor. This confession and the other statement might have caused a retrail. But for the reasons and we will expel these statements from our consideration of the app which follow, we need not take that course,

On the other hand, the discovery of the briefcase and metallic box would seem to have been properly admitted in evidence. Defence Counsel, however, suggested that as Mr Obina-Eson was not the investigating officer as such, he should not have made the search. *lie are* unable to agree. Any police office who is called in to investigate in a case of suspected theft or any crime, and who is given information is permitted to follow it up. It would be negligence not to do so. evidence as relates distinctly to the fact discovered of the articles in question whether it amounts to a confession or not, is admissible. The appellant said that he knew where some of the things were hidden and took the police party to them. That part is admissible. In the briefcase wore personal documents in the name of Oryeda and in the metallic box were his books. They were clearly part of the stolen property. *tjxj.* virtue of section 29(a) of the Evidence Act as amended by Decree 2\$ of 197^> so much of the

Mr Oryeda saw these articles and identified them. Mrs Oryeda also identified the briefcase.

The learned Judge and the Assessors were perfectly entitled to accept that evidence if they chose to do so. That is the corner stone of the case. Despite the discrepancies in the evidence given by Mr & Mrs Oryeda, Musaizi and Stephen City, and the difficulty over the identification of the watch, there is no doubt that the appellant produced tne two other main articles stolen, besides the radio cassette. It is very difficult in these circumstances

/10

planted on the appellant. Suppose Musazizi and Stephen City had planted the watch and the radio on the appellant, how did the latter point to the briefcase and the metallic box? The Detective Corporal followed the appellant at once after getting There was no possibility that the Detective could have gathered any information from elsewhere about the briefcase and metallic box from anyone other than tne appellant. The appellant does not allege that Stephen City and Musazizi had told the Detective about the hidden objects. The Detective did not even know that Tibamwenda had been arrested. The Detective acted promplly before he could gather information elsewhere. Indeed, the articles were difficult to find and had to be pointed out. That was the sole action of the appellant. the radio and watch. to visualise any real chance of these articles being

**Jr**

We are satisfied therefore tnat the learned Judge and the Assessors were within their rights to find that the appellant was trying to sell the radio, and hud recent possession of three of the four major articles stolen, tne radio cassette,the metallic box and briefcase. We agree that the explanation of tne loss of the radio and metallic box by the police during the transition from one Government to another was acceptable. There is no question as to the identity of the three stolen articles. We agree also that there was no torture of the appellant.

The second ground of appeal us such has therefore been answered, The appeal on ground 2(a) must succeed, but tne appeal on grounds 2(b) and (c) must fail. Nevertheless, this is a capital offence, and we must be certain tnat that sentence is warranted.

On the technical aspects of the charge of robbery, raised in ground 1, the knife seen by Mrs Oryeda, acceptable evidence. It is one thing not to have observed the as described by her, is

/11

intruder's clothes, but a knife at one's throat is not easily missed. There was some sort of light. It was the knife that forced Mrs Oryeda to her bed after her brave first defiance - "If you have come to kill me, kill me; if you have come to take away property, take it." Indeed a knife about a foot long is It was the weapon with which the appellant threatened to kill Mrs Oryeda if she raised the alarm. We are satisfied that the charge was proved as to the threat and the use of a deadly weapon in order to carry out the theft. a deadly weapon.

The second aspect is more difficult. The appellant raised an alibi as to the 17th April 1985\* It could be that he was absent on 17th april, but in possession of the stolen property six days later on 2j\$rd april. It could be fire days later in connection with the radio, and six days in relation to the metallic box and briefcase. It might be one day or so more. The learned Judge, however, rejected the alibi seemingly because it did not raise any doubt in his mind since Mrs Oryeda had identified him He said:-

> **It** ''The accused's defence of alibi cannot stand since prosecution has destroyed it, with the evidence putting him at the scene of the crime.

That finding cannot now stand since Mrs Oryeda did not identify the appellant in circumstances which are acceptable. The alibi therefore remains open for consideration.

The learned Judge then considered the aspect of recent possession. He phrased the test too strongly. He said that when giving a ''clear" explanation as to how he came to be in such possession, the inference arises whether the person is the thief or the receiver of that property. burden upon the accused, if ''clear" did not only refer to mere a person is found in recent possession of stolen property without That could put too high a

clarity, but included soundness. In legal phraseology clear evidence usually refers to acceptable evidence. The test is not a ''clear" That is because this species of circumstantial proof. as is well known, in the case of circumstantial evidence, if an innocent hypothesis, is as possible as a guilty hypothesis the prosecution has failed to prove its case beyond reasonable doubt. convinced of its truth. To reject an explanation as false, there must be specific evidence that on some points or point it is actually proved to be false. In the instant case the appellant denied possession. The defence was clear enought; but he denied a primary point of fact. We agree with the trial Court that that was false. Tihe appellant did have possession of the radio cassette, metallic box and briefcase, as we have demostrated earlier. are satisfied that the appellant did not give a reasonable explanation , because it was proved false. a receiver? explanation but a ''reasonable explanation". s a a reasonable explanation, leaves open Consequently, we *Was* the appellant, then, a thief or a possibility of an innocent explanation, even if the Court is not

The facts from which the inference is to be drawn are:- (a) that the appellant was found in possession almost a week later of the more difficult property to dispose of. The cash and blanket had by this time apparently disappeared. However, (b) Tibamwenda had been implicated, and it is not clear who had actually invaded Mrs Oryeda's bedroom. Lastly,

(c) there was the appellant's alibi, that he was in Kajura and not Masindi Hotel at the meterial time.

Under point (a) the approach must be that the articles the appellant uncovered were not likely to have changed hands. They were found hidden very near the Masindi Hotel where tne allegad robbery took place.

/13

On point (b) as it is not known who was in Mrs Oryeda's room, possibly the appellant could have invaded the room, or he could have acted in concert with Tibamwenda. Alternatively, (c) he £ight not have been there at all.

**13**

The alibi defence has been reduced in weight because of the basic and surrounding falsehoods. stolen property. There is no case of torture. The appellant was in possession of

Bearing in mind the various factors, and after giving 'careful consideration to this problem, we have reached the conclusion that the proper infrerence is one of theft, the alibi raising no reasonaole doubt that that inference is the proper inference to draw. The manner in which the appellant wgs selling , the radio and a watch, the closeness of. the articles hidden to the Masindi Hotel, the unlikelihood of the articles changing hands outweigh the alibi. Even if Mrs Oryeda did not recognise the appellant in her room, the evidence is not that he could not have been there, or outside the room.

^&gt; Consequently, having given our best consideration to the problems raised by tne appeal itself, and those presented by tne satisfied that the learned Ju\$ge and have followed a somewhat different course. The conviction of the appellant, is confirmed. As the appellant was over 18 years of age at the time of the commission of the offence, the sentence was mandatory. The appeal is accordingly dismissed. the Assessors came to the right conclusion, even if we record and judgment, we are

Delivered at Mengo this 2nd day of November, 1990\*

SIGNED:

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGlUnL

REGISTRAR SUPREME COURT. H. G. PLaTT,

S. W. W. JUSTICE OF THE SUPREME COURS WAMBUZI, CHIEF JUSTICE B. J. ODOKI, JUSTICE OF THE SUPREME COURT.