[1998] UGSC 29

IN THE SUPREME COURT OF UGANDA

AT MENGO

(CORAM:

## CRIMINAL APPEAL NO.17 OF 1992

$MANYINDO - DCJ.$

BETWEEN

JOHN WAKADALA : : : : : : : : : : : : : : : : : :

Justice Eroldo-

ODER - $J. S. C.$ .

arepodial

$-.12$

PLATT - $J. S. C.$ )

$A$ $\mathbb{N}$ $D$

$UGANDA$ : : : : : : : : : : : : : : : : : : :

(Appeal against conviction and Sentence of H/C decision holden at Mbale (Hon. Mr. Justice J. O. Berko) dated 25th Feb. 1992. from original H. C. Cr. No. 206 of 1987).

## JUDGMENT OF THE COURT:

The appellant was convicted of murder and sentenced to death by the High Court. He appealed against the conviction. At the hearing of the appeal the Principal State Attorney, Mr. Byabakama-Mugenyi, did not support the conviction. We were also of the opinion that the conviction could not be sustained. Accordingly, we allowed the appeal, quashed the conviction, set aside the sentence of death and ordered a retrial by a different Judge. We promised to give our reasons later in the judgment. We now give them.

The deceased was attacked in her house late at night and cut to death She apparently sustained several puncture and cut wounds on the head, which led to her death.

The swidence against the appellant consisted, firstly of an alleged confession which, though admitted in evidence without objection, was retracted by the appellant in his unsworn statement of defence and secondly, of some property allegedly found on the appellant when he was arrested a few days after the incident.

There are many apparent irregularities which occured in the course of the trial. First, Doctor Odongo who performed the post-mortem examination on the body of the deceased was not called to testify although he was

in the Country, at Lira Mospital. His post-mortem report was tendered in evidence by a Doctor Wamusiguna, presumably under Section 30 (b) of the Evidence Act. That report is useless because it does not indicate the name of the deceased or the place where the body was examined. It simply states that the body was of a "mother" According to that report the body was identified to Dr. Odongo by one Mayeko Asumani. However, the evidence of Asumani which was admitted under Section 64 of the Trial on Indictments Decree is silent on this important point. The Folice Officer who investigated the case did not testify. In the circumstances it cannot be said with certainity that the body examined was that of Nusura Sera.

Secondly, the trial Judge did not direct the Assessors on the glaring dentradiction between the medical evidence as to the nature of the injuries found on the body examined by Dr. Odongo, and the weapon used ( a sharp weapon according to Dr. Odongo) on one hand and the appellant's claim in his retracted confession that the deceased was hit with sticks only.

Thirdly, the property found on the appellant was not shown to belong to the deceased by anyone, let alone that it was stolen from her. The trial Judge did not direct the Assessors on this matter at all and did not even allude to it in his judgment. Yet the Assessors referred to it and decided, parhaps due to non - direction on the point, that the appellant had stolen the property from the deceased. On the other hand, the trial Judge based the conviction only on the uncorroborated and retraoted confession.

Fourthly, the summing up of the case to the Assessors left a lot to be desired. The trial Judge directed the Assessors that the case was "one of the murder or nothing as no other defences had been put foward to reduce it to manslaughter - complete denial." Yet the Court was bound to consider all possible defences, including the defence intoxication which was raised by the appellant im his retracted confession which was the basis of the conviction. The Assessors were entitled to be told that if that defence was available then it would negative malice-aforethought,

$... / 3$

In the event, they were not so directed, but were told that if true, the confession proved murder only. This was improper.

$\overline{3}$

A similar situation arose in Ilanda s/o Kisongo v. R. 1960 E. A. 780. The Assessors were not directed on the defence of intoxication at all by the trial Judge. On appeal it was held that the Assessors should have been directed on the point and that on the available evidence the defence was not ruled out. So a trial was ordered.

Fifthly, in his summing up the case the trial Judge seems to have left no room for the Assessors to disbelieve if they wished, the key prosecution witnesses when he said:-

"Events happened six years ago. Such genuine mistakes are bound to happen. There is no evidence that the witnesses told deliberate lies. The conflicts were minor and did not point to deliberate untruthfulness in the part of PW4 and PW6."

Sixthly and finally, there was this misdirection to the Assessors:-

"The confession is retracted because...... **.....................................** learned Counsel has submitted that there are conflicts and discrepancies surrounding the circumstances the confession was recorded."

With respect the correct direction should have been that the confession was only retracted. A rejudiated confession is one which the alleged maker completely disclaims, that is to say, he denies having made it all.

Mr. Byabakaama - Mugenyi submitted this was a proper case for ordering a re-trial as the trial was defective as a result of the irregularities mentioned above. We were of the view that the appellant did not get a fair trial and that the interests of just require that he be retried.

Dated at Mengo this $\cdots$ day of $\cdots$ 1999.

$\mathcal{L}^{\mathcal{A}}$

S. T. MANYINSON HOR DEPUTY CHIEF ONLE

$A. H. ODER$ **BUSTICE OF THE SUPREME COURT**

## H. G. PLATT

## JUSTICE OF THE SUPREME COURT

$\cdots \longrightarrow \cdots$

$\frac{1}{2}$

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL

$\{1,1,2,\ldots,2\} \cup \{1,2,3,\ldots\}$

B. F. B. BABIGUMIRA REGISTRAR SUPREME COURT.

$\alpha = \gamma$

$\mathcal{L}_{\mathcal{A}}$