THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODOKI, C.J. ODER, KAROKORA, KANYEIHAMBA, KATO,
J.J.S.C.)
CRIMINAL APPEAL NO. 53 OF 2001
BETWEEN
MATETE SAM
:::::::::::::::::::::::::::::::::::::APPELLANT
AND
UGANDA
:::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
(Appeal from the judgment and decision of the Court of Appeal
(Mukasa-Kikonyogo,DCJ, Twinomujuni, Kitumba, JJA, dated 18th
December, 2001 at Kampala in Criminal Appeal No. 29 of 2000)
JUDGMENT OF THE COURT
This is an appeal from the judgment and decision of the Court of Appeal dated
18th December 2001, in which the appellant's conviction and sentence
by the High Court at Fort Portal in C.S.C. No. 0013 of 1998 and dated
5th June, 2000, were upheld and confirmed.
The facts of the case maybe summarised as follows:
On the 29th
April, 1997 in the Police barracks at Kasese police station, both the appellant
and the deceased, one SPC Raphael Rugemwa, were on
duty. The deceased was on
duty at the Guard Room while the appellant was also on duty in the adjoining
room known as the Radio Control
Room. At about 5 a.m. that morning, the barracks
was awakened by a lot of gunfire noise coming from the area of the Guard Room
and
the Radio Control Room. Several policemen including the O/C of the barracks
took cover initially. However, soon afterwards, they
cautiously moved to the
area where the gunfire noise had been heard to come from. These police officers
met the appellant moving
away from the Guard Room. He was armed with a gun,
AK.47, and smoking a cigarette. He was seen behaving as if nothing at all had
happened. On being asked what was going on, all the appellant could say was that
there was no problem. The police colleagues who
had met and asked him about the
shooting became suspicious of him and decided to disarm him, which they did.
When they inspected
the Guard Room, they found the body of Raphael Rugemwa
riddled with bullet wounds. It was lying in a pool of blood. Examination of
the
gun, which was taken away from the appellant, revealed that its muzzle was still
very hot and smelt of gunpowder. The gun was
identified as the one which had
been issued to the deceased to carry with him while on duty. The appellant had
not been issued with
any gun but as already observed, when disarmed, the gun he
had was found to be the same gun that had been issued to the deceased.
The
appellant was arrested and charged with murder contrary to sections 183 and 184
of the Penal Code. He was subsequently indicted
for that offence. At his trial,
his unsworn statement of denial and plea of alibi were rejected. The court
believed the prosecution's
evidence and convicted him. He was sentenced to
death. His appeal to the Court of Appeal was dismissed, hence this
appeal.
The Memorandum of Appeal before this court contains four grounds of appeal
framed as follows: -
| 1- | THAT the learned
Justices of Appeal erred in law and fact for having upheld the decision that the
charge and caution statement was
true and voluntary and that the confession was
correctly admitted in
evidence. |
| 2- | THAT the learned
Justices of Appeal erred in law and in fact to uphold the finding that there was
enough circumstantial evidence to
justify a conviction for
murder. |
| 3- | THAT the learned
Justices of Appeal erred in law and in fact for having failed to evaluate
evidence as a whole. |
| 4- | THAT the
learned Justices of Appeal erred in law and in fact for having failed to return
or find a verdict of manslaughter. |
In this
Court, the appellant was represented by Mr. Edward Muguluma and the State by Mr.
Okwanga, Principal State Attorney. Mr. Muguluma,
argued grounds 1 and 2
separately but combined grounds 3, & 4. In reply, Mr. Okwanga also argued
grounds 1 and 2 separately but
combined grounds 3 and 4.
In arguing ground 1 of the appeal, Mr. Muguluma contended that the charge and
caution statement upon which the appellant's conviction
was based had been
improperly obtained and wrongly admitted by the learned trial judge.
Consequently, counsel contended further that
when the learned Justices of Appeal
confirmed the findings of the trial court on the matter and upheld the
conviction, they erred
both in law and fact. Mr. Muguluma submitted that the
evidence in the case shows that the recording of the charge and caution
statement
was recorded by one D/AIP Okot, a police officer who had been heavily
involved in the investigation of the case. Not only was this
practice contrary
to the Evidence Act, Cap.25, but it offended against police regulations and
practice which stipulate that an investigating
police officer in a case should
not be the same officer to record any charge and caution statements of accused
persons in the same
case. It was Counsel's contention that police officer Okot
did both which should have rendered the statement inadmissible. Counsel
cited
the case of Mateo Ocheng v. Uganda, Cr. App. No. 25/2000 (S.C), (unreported) in
support of his submissions.
On ground 1, Mr. Okwanga for the
respondent, contended that the charge and caution statement in this case was
properly tendered and
received by the courts below. Counsel pointed out that,
following the appellant's retraction of his confession, there had been a
trial
within a trial. The trial within a trial showed that the confession had been
legally and properly obtained. It was for this
reason that the learned trial
judge admitted it and the Court of Appeal, having properly reevaluated the
evidence, confirmed the
findings. Mr. Okwanga contended that under the
circumstances therefore there could be no reason for this court to interfere
with
the decisions of the courts below.
In the Court of Appeal, ground 1
before this court was ground 3. The learned Justices of Appeal went to great
lengths in dealing with
this ground. They examined the manner in which the
charge and caution statement had been extracted from the appellant and
considered
whether or not the procedure in doing so had offended the provisions
of section 25 of the Evidence Act. They reviewed the allegation
that the
appellant had been restrained with handcuffs during the extraction of the
statement and that in any event the statement
had not been read back to him and
therefore could not have been voluntary or truthful. They considered the
complaint that D/AIP Okot
who recorded the statement was also an investigating
officer in the same case. They noted that following the retraction of the charge
and caution statement by the appellant, there had been a trial within a trial.
The learned Justices of Appeal then concluded.
"Learned counsel for the appellant did not point out, nor do we see where
the learned trial fudge went wrong. He had the opportunity
of seeing witnesses
give evidence before him and his wisdom held that the prosecution case was
credible. He was entitled to make
such a holding. We think that the trial court
acted correctly to admit the statement, which in fact was a
confession".
Thereafter, the learned Justices of Appeal considered the implication of
authorities such as Kasule v. Uganda, (1992-1993) HCB 38
and Mateo Ocheng v.
Uganda, (supra) and concluded that that ground should be dismissed. We entirely
agree with their Lordships, the
Justices of Appeal, that there is no merit in
this ground. Therefore ground 1 of this appeal is dismissed.
On ground 2, Mr. Muguluma contended generally that the circumstantial
evidence upon which the appellant was convicted was insufficient
to justify the
indictment of murder and corroborate the charge and caution statement. Counsel
pointed out contradictions in the evidence.
One of these contradictions related
to the date and month when the sketch showing the murder scene was drawn. Part
of the evidence
indicated that it was in April, 1997 while another part said it
was in May, 1997. Counsel contended further that the fact that there
were
rebels operating in the area of the incident which was advanced by the defence,
was ignored by both the trial court and the
Court of Appeal.
Counsel for the
appellant also contended that, considering that no finger prints on the murder
weapon had been lifted or ascertained
and that a number of bullets from the
murder gun had not been accounted for, tended to weaken the prosecution's case
and create reasonable
doubt which ought to have been resolved in favour of the
appellant, but was not.
On ground 2, Mr. Okwanga responded by contending
that there was overwhelming circumstantial evidence to show that only the
appellant
could have committed the murder. It was only the appellant who had
opportunity to enter the Duty Room. It is only he who was found
at the scene of
the crime holding the murder weapon for which he had no plausible explanation.
There had been a lot of shooting around
the area where witnesses found the
appellant fully awake and smoking a cigarette. When asked by witnesses as to
what had happened,
the appellant behaved and acted as if all was well. He ought
to have been scared. The conduct of the appellant was therefore incompatible
with his innocence. In our view, the evidence against the appellant as the
person who shot the deceased was overwhelming. We agree
with the findings of the
Court of Appeal that the discovery by eye witnesses of the appellant at the
scene of the murder with the
murder weapon, together with the bullet-riddled
body of his colleague in the Guard Room lying in a pool of blood left no doubt
that
it was the appellant who had shot and killed the deceased. The finding is
reinforced by the manner in which the appellant behaved
when discovered at the
scene of the murder. When asked for an explanation, all he could say about the
shooting was that there was
no problem. Yet, in his own statement of defence, he
admitted being at the scene of the crime. Even if he had been in the toilet
as
he claims, he could not have failed to react to the murder of his colleague. The
police witnesses who were further away in distance
at the time of shooting had
to be the ones to discover the body of the deceased. The appellant did not state
that he had seen any
other person coming to or running away from the Radio Room
or Guard Room. We find no merit in this ground. It is therefore
dismissed.
On grounds 3 and 4, Mr. Muguluma contended that the explanation offered by
the appellant was totally ignored by both the trial judge
and the Justices of
Appeal. The Justices of Appeal seemed to be interested only in why, in light of
what had happened, the appellant
remained calm and did not react to the murder.
Counsel contended that the onus is not on the appellant to explain how and why
he
behaved in a certain way during the commission of a crime of which he is
innocent, but on the prosecution. Counsel contended that
the demeanour of the
appellant at the scene of the murder can be explained away by saying that he was
too frightened to do or say
anything which any other rational person would.
Different people behave differently in all sorts of encounters and situations.
For
instance, on the night in question, it was dark and cold and that is the
reason why the appellant was smoking. The police did not
carry out any thorough
investigations after making up their minds that it was the appellant who
committed the murder. The appellant
ought to have been given the benefit of the
doubt. Counsel concluded by praying for the quashing of the appellant's
conviction and
the setting aside of his sentence.
For the respondent, Mr.
Okwanga submitted that there was no merit in either ground 3 or 4 of the appeal.
Counsel contended that on
ground 3, the Court of Appeal evaluated the entire
evidence on record, scrutinised it and came to the only finding possible. In
their
judgment, the learned Justices of Appeal considered and resolved all the
relevant evidence on record. They took into account the
explanation given by the
appellant when found at the scene of the crime. Mr. Okwanga submitted that
ground 4 of the appeal was devoid
of merit since there had been overwhelming
evidence to support the conviction of murder. The manslaughter theory advanced
for the
appellant in ground 4 is not justified and, in any case, it was not
advanced by the defence at the trial in the High Court.
We agree with
learned Counsel for the respondent that there is no merit in grounds 3 and 4 of
the appeal. They must accordingly fail.
Since all the four grounds of appeal have failed, the appeal is
dismissed.
Before leaving this appeal, we are constrained to comment on
one aspect of it upon which we found the observations of both the learned
trial
Judge and the learned Justices of Appeal not to be in conformity with the
principles we have established in cases such as Bogere
Moses v Uganda, Criminal
Appeal No.1 of 1997 (S.C), (unreported) and Kifamunte Henry V. Uganda, Criminal
Appeal No. 10 of 1998 (S.C),
(unreported). In their judgment, the learned
Justices of Appeal observed,
"The learned trial Judge correctly directed
himself to the law applicable when the prosecution relies on circumstantial
evidence.
This is how he handled the matter. 'The law dealing with
circumstantial evidence was clearly stated in Simon Musoke V R. (1958).
E.A.
715. That principle of the law simply says that where the prosecution case is
founded on circumstantial evidence, that circumstantial
evidence must show that
the accused is guilty and there are no coexisting factors that tend to weaken or
destroy the inference of
guilt. In the circumstances which I have explained
above, I would not hesitate to hold that there were no other co-existing
circumstances
which would weaken or destroy the inference of accused's
guilt.
Accordingly, I have found that the prosecution has
successfully destroyed the accused's alibi by adducing evidence which put the
accused
at the scene of the crime. The law is that once the prosecution has
proved that the accused was at the scene of the crime, the defence
of alibi must
be rejected. I accordingly reject it. The circumstantial evidence available
conclusively leads to the inference that
the accused person was responsible for
Rugemwa's death. I so find'. We agree with this finding."
In so far
as the learned Justices of Appeal are agreeing with the learned trial Judge's
statement on the law of circumstantial evidence,
we also agree, but in so far as
the statement deals with the issue of alibi, with greatest of respect, we
disagree. We have held
in a number of cases, that where an accused person pleads
an alibi as a defence, the prosecution must do more than merely place him
or her
on the scene of the crime. They must disapprove or otherwise discredit the
defence of alibi. The mere putting the accused
on the scene of the crime is not
enough. We can only reiterate what we said in the Bogere Moses case
(supra).
"Where the prosecution adduces evidence showing that the
accused person was at the scene of crime, and the defence not only denies
it,
hut also adduces evidence showing that the accused person was elsewhere at the
material time, it is incumbent on the Court to
evaluate both versions judicially
and give reasons why one and not the other version is accepted. It is a
misdirection to accept
the one version and then hold that because of that
acceptance per se the other version is unsustainable."
Dated at Mengo this 17th day of December
2003.
B.J. ODOKI
CHIEF JUSTICE
A.H.O. ODER
JUSTICE OF THE SUPREME COURT
A.N. KAROKORA
JUSTICE OF THE SUPREME COURT
G.W. KANYEIHAMBA
JUSTICE OF THE SUPREME COURT
CM. KATO
JUSTICE OF THE SUPREME COURT
