THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
CORAM: ODOKI, CJ., ODER, KAROKORA, MULENGA, KANYEIHAMBA,
JJ.S.C.
CRIMINAL APPEAL NO. 8 OF
2002
BETWEEN
BAGAGA PETER
:::::::::::::::::::::::::::::::::::::::::::::
APPELLANT
AND
UGANDA
::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
[An appeal from the judgment of the learned Justices of
Appeal (Kato, Mpagi-Bahigeine, Engwau, JJ.A.) delivered on 17th
January, 2002 in Criminal Appeal No. 106 of 2000].
REASONS FOR THE DECISION OF THE COURT
On 2nd January, 2004, we heard this appeal and dismissed it for
lack of merit. We intimated that we would give our reasons for the dismissal
on
a date to be notified to the parties. We do so now.
The facts leading to
the conviction and sentence of the appellant may be summarised as follows. On
14.04.1997, at Nambogo village
in Kamuli District, the parents of the deceased,
one Isanga left him at home and went to attend to their garden. On their return,
they did not find the boy at home. A search for him was mounted. Subsequently,
the body of the boy was found buried in a shallow
grave in a bush. The
appellant became the prime suspect in the murder of the child because at the
time of the child disappearance,
his wife saw him within the vicinity of the
scene of murder, apparently having escaped from prison where he was serving a
sentence
of imprisonment for theft.
The appellant was later arrested on
the strength of his wife's information and on being charged, he confessed to the
murder of the
child. At his trial he retracted his confession and pleaded an
alibi to the effect that he was in prison at the time the murder was
committed. His defence was rejected and he was convicted for murder
contrary to
Sections 183 and 184 of the Penal Code Act and sentenced to death. His appeal to
the Court of Appeal was dismissed. Hence
this appeal.
His Memorandum of Appeal to this court contained three grounds of appeal
framed as follows:
| 1. | That the learned Justices
of Appeal erred in law and fact in upholding the findings of the learned trial
judge that the appellant's
charge and caution statement was
voluntary. |
2. That the learned Justices of Appeal erred in law and fact when they failed
to evaluate the evidence as a whole and as a result came
to a wrong
decision.
3. That the learned Justices of Appeal erred in fact and law in upholding the
finding that the circumstantial evidence of PW4 had destroyed the
appellant's defence of alibi.
Mr. Edward Ddamulira Muguluma, learned counsel for the appellant argued
ground 1 separately and grounds 2 & 3 together.
On ground 1, counsel for the appellant contended that the trial judge erred
in law and fact in finding that the appellant's confession
had been obtained
voluntarily and that in confirming that finding, the learned Justices of Appeal
were equally in error. Counsel
contended that the appellant had been tortured by
the police, having been held and detained in custody from the 17th to
the 22nd, April, 1997. Under those circumstances, the two courts
below erred in holding that the confession was voluntary.
Mr. Muguluma
further argued that the circumstances under which the appellant came to be
charged with murder were not fully explained.
The evidence on record shows that
he had only been arrested for escaping from prison. Counsel contended that no
eye witness testified
and no police officer explained how the appellant came to
be implicated in the murder of the deceased.
On grounds 2 and 3, Mr. Muguluma contended that the two courts below failed
to evaluate and reevaluate the evidence properly. Had
they done so, counsel
argued, they would have found that the charge and caution statement he is
alleged to have made was wrongly
recorded and wrongly admitted in evidence. Mr.
Muguluma submitted that no one explained why the appellant had been arrested and
taken
to Kamuli Police Station instead of being returned to prison from where he
had escaped. According to appellant's counsel's opinion,
both the trial judge
and the Court of Appeal heavily relied on the prosecution's evidence. The
appellant's own evidence and his
defence of alibi were ignored by the
learned trial judge and the learned Justices of Appeal.
For the
respondent, Mr. Ssemalemba, Principal State Attorney, supported both the
conviction and sentence. On ground 1, learned counsel for the respondent
contended, and rightly, in our opinion, that after the appellant had retracted
his confession,
the trial court held a trial-within-a-trial and found that the
confession was indeed voluntary. On the 2 and 3 grounds, it was the
contention
of counsel for the State| that all the material pieces of evidence surrounding
the murder and how the appellant was implicated
in it had been fully explained
and properly assessed by both the learned trial judge and the Justices of the
Court of Appeal.
We agreed with learned Principal State Attorney for the
respondent that all the three grounds of appeal lacked merit.
There was no doubt in our minds that the confession was voluntary. We agreed
with the findings of the learned Justices of Appeal when
in their judgment they
held,
"According to the evidence of D.I.P. Meshak Mulobole (PW6), there is no
doubt that the appellant was subjected to some beating after
his arrest and
before he gave his confessional statement We are, however, of the view that the
beating was not connected with the
confession. According to the evidence of
Moses Waibale (PW 5) of the Local Defence Unit (LDU), who arrested the
appellant, it was
not known that the appellant was a suspect in a murder case at
the time of his arrest. He was only being arrested for having escaped
from
prison. This case must be distinguished from Mateo Ochieng v. Uganda.
(S.C), Crim. Appeal No. 25/2000 (unreported), in that the appellant made a
statement in the presence of a military Captain who had
a pistol . which
is not the case here, in our view, the judges correctly held that
the statement was voluntary, he also properly considered the law concerning a
repudiated confession
and rightly applied it to the facts of this
case."
On grounds 2 and 3, it was dear to us that apart from the appellant's
confession, the case against him depended on circumstantial
evidence. This
consisted partly of the evidence of his wife that on the day of the murder, and
while she was taking her goats to
the bush to graze, she saw the appellant
seated in the bush near where the victim's body was later found buried in a
shallow grave.
She further testified that on seeing her, the appellant ran away.
In our view, the behaviour of the appellant at the time cannot
be that of an
innocent escapee from prison. The wife's evidence supports the confession of the
appellant which was further corroborated
by the evidence of Moses Waibale (PW
5). PW 5's evidence was that the appellant who had escaped from prison was in
hiding and a search
found him hiding in a house within the vicinity of the
murder scene even though all that PW 5 knew at the time was that the appellant
was only wanted because he had escaped from prison. In our view, the appellant's
confession together with the evidence adduced for
the prosecution amply
justified the conviction of the appellant. It was for these reasons that we
dismissed his appeal.
Dated at Mengo this 18th day of May
2004.
B.J. ODOKI
CHIEF JUSTICE
A.H.O. ODER
JUSTICE OF THE SUPREME COURT
A.N. KAROKORA
JUSTICE OF THE SUPREME COURT
J.N. MULENGA
JUSTICE OF THE SUPREME
COURT
G.W. KANYEIHAMBA
JUSTICE OF THE SUPREME
COURT
