[2022] UGHCCRD 80

#### The Republic of Uganda

High Court of Uganda Holden at Soroti

High Court Criminal Session Case No. 0078 of 2018

<table>

Uganda Prosecution

#### Versus

| A1. Okello Lazaro Alia Okalebo | | |--------------------------------|--| | A2. Akello Joyce Mary | | | | |

A3. Akello Joyce Mary

#### Summing Up to Assessors:

Summing up is a judge's review of evidence at the end of a case, with a direction to the assessors regarding points of law.

# Section 82 (1) of the Trial On Indictments Act provides:

When the case on both sides is closed, the judge shall sum up the law and the evidence in the case to the assessors and shall require each of the assessors to state his or her opinion orally and shall record each such opinion. The judge shall take a note of his or her summing up to the assessors.

Section 82(2) provides that the judge shall then give his or her judgment, but in so doing shall not be bound to conform with the opinions of the assessors.(3)Where the judge does not conform with the opinions of the majority of the assessors, he or she shall state his or her reasons for departing

$\mathbf{1}$

from their opinions in his or her judgment.(4)The assessors may retire to consider their opinions if they so wish and during any such retirement or, at any time during the trial, may consult with one another.(5)If the accused person is convicted, the judge shall pass sentence on him or her according to law.(6)If the accused is acquitted, he or she shall be immediately discharged from custody unless he or she is acquitted by reason of insanity.

# The accused persons are charged with the offence of;

1) Murder contrary to section 189 of the penal code Act

In proving its case as against the accused persons, the prosecution adduced evidence which included 3 witnesses PW1: WOR-OKONGO RICHARD, PW2 ASEGE CHRISTINE, PW3 AWUCHURU FAUSTINE and two documents, post mortem report in respect of the deceased Acam Salume and two police forms 24 in respect of A1 and A2.

upon completion of the prosecution's case, the trial court put the accused persons onto their defense by a ruling delivered by Hon. Justice Batema N. D. A on 30^TH/11/2020. A primafacie case was found as against the two accused persons by virtue of section 73(20 of the Trial and Indictment Act.

A prima facie case is the establishment of a legally required rebuttable presumption. A prima facie case is a cause of action or defense that is sufficiently established by a party's evidence to justify a verdict in his or her favor, provided such evidence is not rebutted by the other party.

This therefore means that the prosecution showed court that there is a case to answer by the acussed persons.

It is also relevant to note that, one is presumed innocent until proved guilty as per Article 28(3)(a) of the Constitution of Uganda.

The accused are charged with;

1) Murder contrary to section 189 of the penal code Act.

In criminal cases, the burden to prove is squarely on the prosecution, the accused does not have to prove his innocence as provided for under section 101 of the Evidence Act. That

(1) Whoever desires any *court* to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

This position was emphasized in the case of Woolmington vs DPP (1935) AC 462.

The standard or threshold required to prove the case against the accused is beyond reasonable doubt as cited by LORD DENNING in the case of *Miler* Vs Minister of Pensions [1947] 2 ALL ER 372.

The degree of beyond reasonable doubt is well settled. It need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt.

If evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with a sentence of course it is possible but not in least probable, the case is proved beyond reasonable doubt but nothing short of that will suffice.

## COUNT 1: Murder:

The following ingredients must be proved by the prosecution in case of murder. The case of *Uganda vs Bosco Okello [1992-93] HCB 68* lays down the ingredients of Murder.

a) Death of a person. Death may be proved by production of a postmortem report or evidence of witnesses at the burial.

b) Death was caused unlawfully. It is trite law that any homicide is presumed to have caused unlawfully unless it was accidental or it was authorized by law as was held in the case R Vs Gusambuzi s/o Wesonga (1948) 15 EACA

### 65

c) Death was caused with Malice afore thought. In malice aforethought, court takes into account the number of injuries inflicted, the part of the body where the injury was inflicted, nature of the weapon used and the conduct of the killer before and after the attack.

d) The accused participated in the cause of the offence. There must be credible direct or circumstantial evidence placing the accused at the scene of the crime as an active participant in the commission of the offence.

e) The prosecution must prove that the actions of the accused persons caused the death of the deceased.

In the instant case, the first accused person Elyebu Anthony Isah pleaded guilty to both offences and was convicted and sentenced accordingly.

The remaining two accused persons contest the ingredient of participation in the killing of the deceased.

# Participation:

Participation can be proved by direct evidence which may include positive identifation of the accused at the scene of the crime.

Conditions for participation may include,

1) the time the offence was committed.

2) the availability of light

3) The proximity of the witness to the offender.

4) The prior knowledge of the offender by the witness.

### **Circumstantial Evidence:**

Circumstantial evidence is proof of a fact or set of facts from which one could infer the fact in question. It evidences that tends to prove a fact by proving other events or circumstances which afford a basis for a reasonable inference of the occurrence of the fact at issue. This usually involves matters like the conduct of an accused before and after the commission of the offence.

In the instant case, the prosecution relied on documentary evidence which included a post mortem report respect of deceased Acam Salume and two police forms in respect of A₁, and A₂ marked PEX₁, PEX₂ and PEX₃.

The prosecution presented 3 witnesses who included PW1: WOR-OKONGO RICHARD, PW2 ASEGE CHRISTINE, PW3 AWUCHURU FAUSTINE

Pw1 WOR- OKONGO RICHARD stated that on $6^{th}$ / 09/2017, he received a report of a deceased person from area LC1, Omaditok, Ngora Parish, Ngora District, there was a body seen in the gardens and found the body of the late Acam Salume, a juvenile, daughter to Akello Peter. The whole face of the

body was skinned and covered with grass. It was not ar from the home of Okello Peter, the father.it seemed the body was killed else where and carried to the spot. The postmortem was performed and body handed over to the relatives for burial.

The two accused were suspected, the mob destroyed the homes of Lazarus, A1 and his brothers. A1, A2, A3, were nowhere to be seen.

Two days before the body was discovered, deceased was with A1 and A2, less than a kilometer from the home of deceased's father.

Okello, A1 was suspected because in 2014, a ritual murder was committed in a similar manner in the same village by A1. He was taken to court but witnesses did not go to court, and he was released.

In the current case, the accused persons were arrested after three months. They were arrested in Abim in hiding.

Pw2 Asege Christine mother to the deceased testified that, she knows both the accused as A1 is clan brother to her husband and A2 his wife. A3 Akello Joyce Mary is a daughter to A1 and A2. That A3 collected Acam the deceased and they went to their home, she waited for Acam but she did not return even the next day. She went to the home of the accused on a Friday morning but they had run away.

That an old woman had discovered the body of the deceased under a tree.

She also stated that the eyes of the deceased were removed, the mouth cut, the chest was opened and heart removed. Hot water had burnt the whole body.

Pw3 Awuchuru Faustine also testified that the deceased was his subject and the two accused are neighbors. He further collaborated the testimony of Pw2 that the eyes of the deceased were removed, the mouth was cut and skin removed and that the deceased had gone to the house of A1 before she died.

The law on circumstantial evidence was highlighted in the case of $Abuja$ in **Tajudeen Iliyasu versus The State SC 241/2013** which considered that evidence in great detail.

It was held that circumstantial evidence; -

".... is evidence of surrounding circumstances which by undersigned coincidence, is capable of proving a *proposition with the accuracy of mathematics...., this is so* for in their aggregate content, such circumstances lead cogently, strongly and unequivocally to the conclusion that the act, conduct or omission of the accused person, caused the death of the deceased person. Simply put, it meant that there are circumstances which are accepted so as to make $a$ complete and unbroken chain of evidence.

The court in *Abuja(above)* went ahead to cautioned that:

".... such circumstantial evidence must point to only one conclusion, namely that the offence had been committed and that it was the accused person who committed it.

In Byaruhanga Fodori vs. Uganda, S. C. Crim. Appeal No. 18 of 2002; [2005] 1 U. L. S. R. 12 at p. 14, the Supreme Court of Uganda spelt out that: -

"It is trite law that where the prosecution case depends solely on circumstantial evidence, the Court must, before deciding on a conviction, find that the inculpatory facts $\frac{1}{2}$ are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.

The Court must be sure that there are no other co-existing circumstances, which weaken or destroy the inference of quilt.

(See S. Musoke vs. R. [1958] E. A. 715; Teper vs. R. [1952] A. C. $480"."$

In addition to this, in the case of *Tindigwihura Mbahe vs. Uganda S. C.* Crim. Appeal No. 9 of 1987, Court issued a warning that circumstantial evidence must be treated with caution, and narrowly examined, because evidence of this kind can easily be fabricated. Therefore, before drawing an inference of the accused's guilt from circumstantial evidence, there is compelling need to ensure that there are no other co-existing circumstances which would weaken or altogether destroy that inference.

In the case of *R v. Tubere s/o Ochen (1945) 12 EACA 63* court set out circumstances which the trial court should consider in deciding whether there was malice aforethought in the killing of a person.

#### These are:

- The type of weapon used, - The nature of injury or injuries inflicted, - The part of the body affected and - The conduct of the attacker before and after the attack.

It Is important that the circumstances in the above case the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.

#### Defenses:

The two accused put up the defense of Alibi. Alibi which is a claim or piece of evidence that one was elsewhere when an act, especially a criminal one, is alleged to have taken place.

According to the online dictionary Wikipedia, an Alibi is a statement by a person, who is possible perpetrator of crime, of where they were at the time a particular offence was committed, which is somewhere other than where the crime took place.

During a police investigation, all possible suspects are usually asked to provide details of their whereabouts during the relevant time period, which provide details of their whereabouts during the relevant time period, which where possible would usually be confirmed by other persons or in other ways (such as by checking phone records, or credit card receipts, use of CCTV etc.)

During a criminal trial, an alibi is a defense raised by the accused as proof that they could not have committed the crime because they were in some other place at the time the alleged offence was committed.

It should be noted that the accused does not have to prove his/her alibi. It is the prosecution to discredit the said Alibi and prove that the accused were $\rm I$ the scene. This was emphasized in the case of **SSekitoleko vs Uganda.**

The circumstances should point to nothing but the accused being the perpetrators of the crime.

In conclusion, it is important that you look at the evidence as a whole and make an independent opinion regarding the case.

Hon. Justice Dr Henry Peter Adonyo

Judge

$18^{th}\ August\ 2022$