THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
CRIMINAL APPEAL NO. 12/2002
BETWEEN
BWIRE WYCLIFFE &
SERUNGA GEORGE WILLIAM
::::::::::::::::::::::::::::::::::APPELLANTS
VERSUS
UGANDA
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
RESPONDENT
(CORAM: ODOKI, CJ; ODER, JSC; TSEKOOKO, JSC; KAROKORA, JSC; MULENGA,
JSC.)
(Appeal from the decision of the Court of Appeal at Kampala by Justices
Kato, Mpagi-Bahigeine, Twinomujuni, JJA dated 24th April 2002 in
Criminal Appeal No. 116 of 1999).
JUDGMENT OF THE COURT
This is a second appeal. It is from a Judgment of the Court of Appeal dated
26th April, 2002 confirming the conviction and sentence of death
passed by the High Court on 16th October, 1999.
The appellants Bwire Wycliffe and Serunga George William together with
Sikyomu Abdu were jointly tried on an Indictment for murder
contrary to Sections
183 and 184 of the Penal Code. They were all convicted and sentenced to death as
earlier on stated. The appeals
of Bwire Wycliffe and Surunga George to the
Court of Appeal were dismissed. The appeal of Sekyoma Abdu who appealed against
sentence
only was allowed on the ground that the prosecution had not proved
beyond reasonable doubt that he was aged 18 years or above at
the time the
offence was committed. The sentence of death against him was set aside and
substituted with an order that he be detained
in safe custody pending the order
of the Minister under Section 104(2) of the Trial on Indictment Decree. Only
Bwire Wycliffe and
Serunga George William have appealed to this Court as
1st and 2nd appellants respectively.
The brief
facts of the case as accepted by the lower courts were that on 8th
June 1996 Joseph Nkuke, the deceased, left his home and went to Kyakanyonza
village in Masaka District to collect food but never
returned. A few days later,
Abdu Sikyomu, was found in possession of the deceased's bicycle. He was
arrested. He confessed that he
and five other people including the two
appellants had killed the deceased and removed his body organs which they gave
to one Musomesa
for Shs. 150,000/=. All those who were implicated by Sikyomu
were arrested. The two appellants also confessed to the murder. All
six suspects
were charged with the murder of Joseph Nkuke. At their trial they all denied the
charge. Only the appellants and Sikyomu
Abdu were convicted of murder and
sentenced to death. They appealed to the Court of Appeal with the results
already stated above.
The two appellants filed separate memoranda of appeal in this court.
The 1st appellant has filed four grounds of appeal, but at the
hearing of the appeal his counsel abandoned the fourth ground. The remaining
grounds read as follows:
(1) The learned Justices of Appeal erred in law to uphold the learned trial
judge's decision admitting the 1st appellant's charge and caution
statement and relying on the same to convict the 1st appellant.
(2) The learned Justices of Appeal erred in-law to uphold the decision of the
trial judge to admit and rely on the charge and caution
statement of A2 and A3
and to use them to corroborate the charge and caution statement of the
1st appellant.
(3) The learned Justices of Appeal erred in law to state that the charge and
caution statement of the 1st appellant was enough to base on the
conviction of the appellant.
The 2nd appellant's memorandum of appeal contained 2 grounds. At
the hearing of this appeal, counsel for 2nd appellant abandoned the
1st ground and argued the 2nd ground, which reads as
follows:
(2) The learned Justices of Appeal erred in law and fact in upholding the
sentence of death against the 2nd appellant without scrutinising his
age.
At the hearing of this appeal, Mr. Tayebwa, counsel for 1st
appellant argued grounds one and three together and argued ground two
separately. On grounds one and three, he submitted that the
Court of
Appeal erred in upholding the decision of the trial judge who admitted the
1st appellant's charge and caution statement and relied on the same
to convict the appellant. He contended that it was wrong to admit
the statement
when the appellant had denied having made it. In the alternative, he argued that
if at all he made it, the appellant
never made it voluntarily. Counsel further
submitted that since the statement was both retracted and repudiated, the onus
was on
the prosecution to prove that the appellant made it and that he made it
voluntarily.
We note that after conducting a trial within a trial,
the learned trial judge found that not only did the appellant make the
confession
but that it was voluntarily made and therefore he admitted it in
evidence as PE1 In his judgment, the judge referred to the part
of that
confession statement as follows:
"In his statement, (PE1) he told PW4 how he had requested A2 to get him a
worker, which A2 did by producing the deceased. That together
with four other
people, they took the deceased in a forest. That A2 spread chloroform on the
deceased, grabbed and threw him on the
ground before pulling out a knife and
slaughtering him. That on his part he cut him and removed the heart, liver and
lungs which
things he took together with blood in a bottle to one Musomesa of
Kimaaya village who earlier on pressed an order for these items
from them. The
Musomesa paid him Ug. Shs. 150,000/- for, as he put it, 'the work done.' That he
was arrested and found his co-accused
in the police
cells."
At that stage the learned trial judge
carefully considered the relevant law applicable to retracted confession. After
carefully considering
the confessions of A2 and A3, he concluded that A1's
confession statement was true. The learned Justices of Appeal carefully
considered
the analysis and conclusions of the learned trial judge on the law
applicable to retracted confession as was set out in Tuwamoi V
Uganda (1967) E.A 84 in the following passage:
"We should summarise the position thus - a trial court should accept any
confession which has been retracted or repudiated or both retracted
and
repudiated with caution and must before founding a conviction on such a
confession be fully satisfied in all the circumstances
of the case that the
confession is true. The same standard of proof is required in all cases and
usually a court will only act on
the confession, if corroborated in some
material particular by independent evidence accepted by the court. But
corroboration is not
necessary in law and the court may act on a confession
alone if it is fully satisfied after considering all the material points and
surrounding circumstances that the confession cannot but be
true."
After quoting the above passage, the Court of
Appeal proceeded to state in their judgment inter-alia that::
"Like the learned trial judge, we are fully satisfied that the
1st appellant's confession was an unequivocal admission of
participation in the murder of the deceased that it was made voluntarily and
that it was true. He was entitled to rely on it to convict the 1st
appellant."
We agree with the above conclusion:
Although the learned trial judge permitted PW4 to narrate the contents
of the confession statement of A1 without any objection being raised by defence
counsel, before a trial within
a trial was conducted to determine its
admissibility, which was an irregularity, we think, that the irregularity was
cured when a
trial within a trial was conducted after which the learned trial
judge found that not only did the first appellant make the confession
but that
it was voluntarily made, and that it was true showing details and steps taken by
all the appellants in the murder of the
deceased.
In the result, we are not persuaded by submission of counsel for the
1st appellant that the lower courts erred in admitting the
1st appellant's confession statement and in relying on it to convict
him. Consequently, grounds one and three must fail.
On ground two counsel submitted that the Justices of Appeal were in error
when they upheld the decision of the trial judge who had
admitted and relied on
the charge and caution statements of A2 and A3 and used them to corroborate the
charge and caution statements
of the 1st appellant.
As we have already stated in the course of this judgment, we agree with the
Justices of Appeal when they stated inter alia, that:-
"Like the trial judge, we are fully satisfied that the 1st
appellant's confession was an unequivocal admission of participation in
the murder of the deceased that it was made voluntarily and
that it was true. He
was entitled to rely on it to convict the 1st appellant. However...
there was corroboration in the uncontested confessions of the 2nd and
3rd appellants. We also find that the learned trial judge could have
convicted the 1st appellant on the strength of both confessions of
the 2nd and 3rd appellants alone or any one of them.
Section 28 of the Evidence Act provides:-'Where more persons than one are being
tried jointly
for the same offence, and a confession made by one of such persons
affecting himself and some other of such persons is proved, the
court may take
into consideration such confession as against such other persons as well as the
person who makes such a confession'.
In this case all the three confessions of
the three appellants implicated the 1st
appellant."
In the result, we think that the Justices of
Appeal rightly concluded that the trial judge was entitled under section 28 of
the Evidence
Act to consider the confession of A2 and A3 as corroborative of
A1's confession. Therefore this ground must fail.
Mr. Kafuko Ntuyo
counsel for 2nd appellant submitted that neither the trial court nor
the Court of Appeal scrutinized evidence relating to the age of the
2nd appellant to ascertain accused's age at the time the offence was
committed. He contended that under section 104(1) of the Trial on
Indictment
Decree 1971, the trial judge is obliged to ascertain the age of the accused
person.
Counsel submitted that the 2nd appellant was medically
examined on 26/6/96 when the doctor found that he was aged approximately 18
years. Counsel contended that
this was opinion evidence. Yet on 20th
June 1996 when the appellant made charge and caution statement, he was
stated to be aged 18 years. Counsel submitted that at his trial
on 29/9/99 the
appellant stated on oath that he was aged 20 years. He was not challenged in
cross-examination about this. Counsel
contended that therefore the prosecution
had failed to prove that the appellant was aged 18 years at the time the offence
was committed
on 8/6/1996.
We agree with the submission of the learned
counsel for 2nd appellant that the prosecution had failed to prove
that the appellant was aged 18 years at the time the offence was committed on
8/6/96.
We reiterate what we stated in the case of James Sowabiri &
Another V Uganda Cr. Appeal No. 5 of 1990 that-
"Whenever the opponent has declined to avail himself of the opportunity to
put his essential and material case in cross-examination,
it must follow that he
believed that the testimony given could not be disputed at all. Therefore an
omission or neglect to challenge
the evidence in chief on a material or
essential point by cross-examination would lead to the inference that the
evidence is accepted
subject to its being assailed as inherently or palpably
incredible."
Clearly the appellant's evidence that he was aged 20 years on 29/9/99 when he
testified in court was not challenged. This would mean
that when the offence was
committed on 8/6/96; he was below 18 years of age. Consequently we think that if
the lower courts had scrutinised
the evidence relating to A2's age, they would
have concluded that at the time the offence was committed on 8th June
1996 he was below 18 years of age. In the result, no sentence of death would
have been passed by the trial judge and confirmed
by the Court of Appeal.
Instead, in lieu thereof, the court would have remitted A2 to the Family and
Children Court under section
104 (2) of the Children Act for an appropriate
order to be made.
In the result, the appeal for 1st appellant has no merit and is
accordingly dismissed. The appeal for 2nd appellant is allowed. The
sentence of death is set aside. In lieu thereof, we order that the second
appellant, Serunga George be
remitted to the Family and Children Court for an
appropriate order to be made under section 104 (2) of the Children
Act.
Dated at Mengo this 12th day of February
2003.
B. J. ODOKI
CHIEF JUSTICE
A. H. O. ODER
JUSTICE
OF THE SUPREME COURT
J. W. TSEKOOKO
JUSTICE OF THE SUPREME
COURT
A.N. KAROKORA
JUSTICE OF THE SUPREME COURT
J. N.
MULENGA
JUSTICE OF THE SUPREME COURT