[2024] UGHC 1232

## **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA HOLDEN AT KABALE**

**CRIMINAL SESSION NO. 0049 OF 2024 (Arising from Criminal Case Kabale – JA – No. 0002 of 2023) (Arising from Kisoro CRB No. 583 of 2023)**

| UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::<br>PROSECUTION | | |-------------------------------------------------------------------------------------------------|--| | VERSUS | | | BYONANEBYE RONALD::::::::::::::::::::::::::::::::::::::::::::::::CHILD OFFENDER | |

## **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

## **JUDGMENT**

Byonanebye Ronald who for the rest of my Judgment I shall refer to as the Accused is indicted for Aggravated Defilement contrary to **Section 129(3)** and **4(a)** of the **Penal Code Act.** The facts giving rise to this indictment are that Byonanebye Ronald on the 22/07/2023 at Nyakijumba Cell, Kyanamira in Kabale District being HIV positive and an uncle to Mugisha Miiro performed a sexual act with the said Mugisha Miiro a boy aged 4 years.

The Accused pleaded not guilty.

### **Representation.**

Ms. Nkwanzi Racheal (State Attorney) appeared for the Prosecution while Mr. Kibulirani Nicholas represented the Accused on state brief. The Assessors for this trial were Ms. Christine Kembabazi and Ms. Sylvia Muhawenimana.

During the preliminary hearing sanctioned under **Section 66** of the **Trial on Indictment Act (TIA)** medical evidence in PF24, PF24A and PF3A were admitted as uncontested.

PF24 was in regard to the medical examination of the Accused that details his age as being 17 years and with the normal mental status. The same was received as Exhibit P1.

PF24A is also in regard to medical examination of the Accused that places his age at 17 years basing on his dental formula and details that HIV test carried out on the Accused returned positive. This report was received as Exhibit P3.

PF3A was in relation to the medical examination of the victim Mugisha Miiro conducted on the 24/07/2023 that places his apparent age at 4 years basing on his dental formula and his medical examination revealed that he had redness and tenderness on his buttocks and anus but no wounds or lacerations were observed. This report was received as Exhibit P3.

#### **The burden and Standard of proof.**

This being a criminal case it is one whose proof lies squarely on the Prosecution and the Accused has no duty to prove his innocence. It is also proof beyond reasonable doubt.

Any doubts must be resolved in favour of the Accused unless fully explained. The Accused must only be convicted on the strength of the Prosecution case and not on the weakness of the defence case.

## **See Ssekitoleko versus Uganda (1961) EA 531.**

### **Ingredients of the offence.**

The Prosecution must prove each of the following essential ingredients beyond reasonable doubt for the Accused to be convicted of Aggravated defilement.

- 1) That the Victim was below 14 years of age. - 2) That there was a sexual act performed on the victim.

3) That it was the Accused who performed the sexual act on the victim.

# **a) Age.**

The most reliable way of proving the age of a child is by production of a birth certificate, followed by the testimony and medical evidence where available. It has however been held that other ways of proving the age of a child can be equally conclusive such as the Court's own observation and common sense assessment of the age of the child.

# **See (1) Uganda versus Kagoro Geoffrey H. C. C. S No. 141 of 2002**

# **(2) Uganda versus Mawadri Joel H. C. C. S No. 0012 of 2018.**

It is the evidence of Hilda Niwamanya (PW1) that she is the mother of the victim Miiro Mugisha and that he was born on the 06/06/2019 and that he is presently in baby class.

The victim Miiro Mugisha (PW2) whose evidence was received not on oath after a voiredire had been conducted by this Court testified that he is 4 years and attends Kengoma Nursery School. Corroborative medical evidence in Exhibit P3 places the age of the victim (PW2) at 4 years basing on his dental formula.

It must be noted that the defence did not dispute the age of the victim in this case. This Court had the benefit of observing Miiro Mugisa (PW2) as he testified before it, The Victim clearly from this Court's observation was only a child and I accept that he is as stated 4 years old.

It is therefore my finding that the Prosecution has successfully proved beyond reasonable doubt that the victim Miiro Mugisha is below the age of 14 years.

#### **b) Sexual act.**

**Section 129** of the **Penal Code Act** defines *"a sexual act"* to mean penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ or the unlawful use of any object or organ by a person on another person's sexual organ. The same provision defines "sexual organ" to mean a vagina or a penis.

It is the evidence of Miiro Mugisha (PW2) that the Accused told him to remove his trouser, smeared him with saliva removed his tail (Omukira) and to demonstrate this area Miiro (PW2) touched his groin area. The Accused then inserted the same into his anus (omukibunu) and to demonstrate this further he touched his buttocks. It is his evidence that the Accused then told him to lie down and proceeded to defile him (Kuhamba).

His evidence is corroborated by the evidence of Agabire Trust (PW3) who testified to finding the Accused and Miiro both naked with the Accused on top of Miiro (PW2) and that she saw the penis of the Accused and that Miiro later told her that he was feeling pain in his anus. Further corroborative evidence is found in the evidence of Hilda Niwamanya (PW1) who testified to examining her son Miiro (PW2) after being told that he had been defiled on 22/07/2023 and that she observed that there was blood on his anus that night.

Juliet Natukunda (PW4) also testified to examining the anus of her grandson Miiro (PW2) on the date in issue and observed that there was blood on his anus. Corroborating medical evidence can be found in Exhibit P3 in which the report details that the victim Miiro's buttocks were tender with redness but with no wounds or lacerations and that the most likely cause was a blunt object.

The evidence presented by the prosecution in relation to a sexual act being performed on the victim Miiro has been cogent and backed up by eye witness account and medical evidence. The evidence is also consistent and credible. I accept it to be true.

It is therefore my finding that the Prosecution has proved beyond reasonable doubt that a sexual act was performed on the victim Miiro Mugisha.

#### **c) Participation.**

Mugisha Miiro (PW2) the victim in this case was only 4 years at the time his evidence was received and gave the same not on oath after a voiredire had been conducted. It is the evidence of Miiro Mugisha (PW2) that he knows the Accused as Ronald.

That the Accused told him to remove his trousers and smeared him with saliva, removed his tail(Omukira) and inserted it into his anus(Omukibunu) and proceeded to defile him (Kumuhamba).

It is the evidence of Miiro (PW2) that this happened where there were bricks and that when Tracy (Trust) (PW3) came calling for him the Accused told him not to answer and that the Accused then put back on his trousers and they later bought sweets. It is further the evidence of Miiro (PW2) that he later told his grandmother what had happened to him.

The evidence of Miiro (PW2) was given in a forth right and candid manner. I keenly observed his demeanour and body language as he spoke and I did not detect any form of deceit in his body language. He was very calm and composed as he testified. He also did not waiver during his cross-examination. I believe that he was speaking the truth.

The above notwithstanding **Section 40(3)** of the **Trial on Indictment Act** provides that where in any proceedings any child of tender years gives evidence that is received not on oath on the basis that the child does not understand the nature of an oath the Accused shall not be liable to be convicted unless the evidence is corroborated by some other material evidence in support thereof implicating the Accused. While **Section 10** of the **Oaths Act** provides that:

*"No person shall be convicted or Judgment given upon the uncorroborated evidence of a person who shall have given his or her evidence without oath or affirmation"* The onus is therefore on the Prosecution to provide corroborative evidence to the testimony of the Victim Miiro Mugisha (PW2).

To discharge this burden, the Prosecution presented Angabirwe Trust (PW3) a 10-year-old girl who after a voiredire had been conducted gave her evidence on oath and testified that she knows the Accused as Ronald. It is her evidence that her grandmother had left her and others at home and instructed her that when their food is ready they should give some to Miiro (PW2). According to Trust (PW3) when the food was ready she and Ance began to look for Miiro (PW2) and that she found the Accused and Miiro (PW2) behind the bricks and that both of them were not wearing their trousers.

It is the evidence of Trust(PW3) that the Accused was on top of Miiro and that she could see his penis and that she left him and went back home pretending not have seen them. That later the Accused gave her UgX 500/= to buy sweets for Miiro (PW2). That Miiro (PW2) told her that he was feeling the Accused's penis in his anus but she saw nothing unusual in his buttocks. It is the testimony of Trust (PW3) that it was the following day that she told her grandmother (Natukunda Juliet) about it.

Her evidence is corroborated by that of Natukunda Juliet (PW4) who testified that on the 23rd of a month she could not recall but in 2023 Miiro (PW2) came back home but refused to eat the food that she had prepared for him and that he had a high fever and slept on the floor. According to Natukunda (PW4) the following day she prepared porridge that she tried to give to the Victim Miiro (PW2) but he again refused to eat the same.

It is her evidence that later Tracy (PW3) told her that Ronald the Accused had got his thing and inserted into the anus of Miiro (PW2) and that he had given her UgX 500/= not to tell anyone. That when she questioned Miiro (PW2) he told her that the Accused had told him to remove his trouser, lie down and that the Accused then inserted his penis in his anus.

Further evidence was given by D/C Amoding Sarah (PW5) who was the investigating officer who testified to taking down the statement of Miiro Mugisha (PW2) and that Miiro (PW2) told her that he was playing when uncle Ronald called him and took him where bricks were made and that uncle Ronald took his "Omukira" and put it in his "Omukibunu". PW5 also testified to taking the statement of Tracy (PW3) who told her that as she was looking for Miiro (PW2) she saw him with Ronald and that Miiro (PW2) was naked and that the Accused had given her UgX 500/= so that she did not tell anyone what she had seen and that when she interrogated the Accused he admitted to giving Miiro and Tracy UgX 500/=

The Accused in his sworn defence denied defiling Miiro (PW2) testifying that on the 23 of July 2023 he was at home having returned from his place of work due to lack of electricity and that he slept at 1:00PM after his mother had left home with his sister and that he woke up at 2:00PM after receiving a call from work that electricity had returned. That as he was leaving he gave his niece one Given money to buy sweets and that Given then started showing Miiro (PW2), Tracy (PW3) and Anselem her money through the widow and that he then also gave the Miiro's some money and he moved out to go to work. It is the evidence of the Accused that it was the following day that he heard Miiro (PW2) crying, he was being beaten and told to say that it was the Accused who had defiled him and that later when he heard the same being said he decided to take himself to Kabale Police Station. The Accused undercross-examination stated that his family and that of Miiro (PW2) have grudges and that is why they had made false allegations against him. The Accused also admitted that he was near the bricks with Miiro and Given but that his trousers were not lowered but that Tracy (PW3) found him with Miiro and that he had given Tracy (PW3) UgX 2,000/= and he had also given his niece Given some money to buy sweets.

The Accused presented his mother Turyatunga Agnes (DW2) who testified that on the 22/07/2023 she was at home from morning to about 2:00PM with the Accused and that their house and that of Miiro share the same compound. According to Turyatunga (DW2) as she was washing the grandmother of Miiro (PW2) called him and then began to assault him in the compound saying that he had been sodomised but he had not spoken and that the grandmother then accused the Accused of sodomising her grandson a claim that Turyatunga (DW2) denies.

It is trite law that where an Accused person raises the defence of alibi the onus is one the Prosecution to discredit this defence and to place the Accused at the scene of crime.

## **See Kyalimpa Edward versus Uganda SCCA No. 0010 of 1995.**

The Accused and his family by the admission of his mother(DW2) lived in the same compound with the Victim Miiro (PW2) and his family. The Accused also according to the evidence on record is an uncle to the Victim. The Accused did not attempt to dispute this well known fact and indeed admitted that he too knew Miiro (PW2) and Trust/Tracy (PW3).

I therefore accept the evidence of Miiro (PW2) and Trust (PW3) that they know the Accused.

The offence against the victim (PW2) was committed in broad day light in the afternoon at around 3:00PM going by the evidence of Trust (PW3). The factors in place therefore favoured proper identification and I rule out any possibility of misidentification.

Trust (PW3) corroborated the evidence of Miiro (PW2) when she testified to finding the Accused and Miiro at the place where there were bricks and that they were behind the bricks and that both of them were not wearing their trousers and that the Accused was lying on top of Miiro (PW2) and she could see his penis. This corroborates the evidence of Miiro that Trust (PW3) came calling for him but that the Accused instructed him not to answer. The evidence of Miiro (PW2) that the Accused sexually assaulted him at the place where there were bricks is also corroborated by the Accused when he admitted that he was in this location with Miiro though he adds that his niece Given was also present a claim that I do not believe to be true.

Trust (PW3) also corroborates the evidence of Miiro (PW3) that the Accused after sexually assaulting him gave them money to buy sweets. The Accused in his defence admits that he gave the Miiros' UgX 2,000/=. I do not believe the Accused that he gave them this money because they asked or begged him for the same. I accept the evidence of Trust (PW3) that this money was intended to keep them quiet from reporting the Accused over his actions in sexually assaulting Miiro (PW2) the offer of money from the Accused points irresistibly at his guilt.

Miiro (PW2) was consistent in his story that the Accused had assaulted him when he told Trust (PW3), his grandmother Natukunda (PW4), D/C Amoding (PW5) and when he testified before this Court. This consistency shows a pattern that Miiro (PW2) being young as he was at 4 years is able to speak with clarity each time he narrates his ordeal at the hands of the Accused and he has not altered his story despite the passage of time.

I do not accept the defence of the Accused and his mother that the charge against the Accused is as a result of their family difference.

I believe this defence to be false. The evidence on record is cogent and the eye witnesses in Miiro (PW2) and Trust (PW3) were emphatic about the actions of the Accused. Besides given their tender age it is impossible that they could have been caught up in their family wrangles. This has been a poor attempt by the defence to taint the reputation of the Prosecution witnesses.

The submissions of the Prosecution that it has proved its case beyond reasonable doubt are upheld. The defence of alibi put up by the defence has been discredited by the Prosecution evidence and the Accused has been placed at the scene of crime committing the offence.

After considering the evidence adduced by the Prosecution and defence together and in full agreement with the lady assessors it is my finding that the Prosecution has proved its case beyond reasonable doubt and I find the Accused responsible

for the offence of Aggravated Defilement contrary to **Section 129(3) and (4) (a)**

of the **Penal Code Act**.

Before me,

…………………………………....

**Samuel Emokor Judge 17/07/2024**