IN THE SUPREME COURT OF UGANDA
AT MENGO
CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA & KATO
JJ.S.C.
CRIMINAL APPEAL NO.4 OF
2002
BETWEEN
GABULA DAVID
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
APPELLANT
AND
UGANDA
:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
RESPONDENT
(Appeal from judgment of the Court of Appeal (Mukasa-Kikonyogo DCJ, Engwau
& Kitumba JJ.A) at Kampala in Criminal Appeal No. 109
of 2000, dated
20th December 2001).
REASONS FOR JUDGMENT OF THE COURT.
This appeal was against the decision of the Court of Appeal
confirming the appellant's conviction and sentence of death for the murder
of
Christine Mbabazi, a seven-year-old girl. We heard and dismissed the appeal on
17th September 2003. We now give the reasons for our
judgment.
The complaint in the single ground of appeal to this Court was
that the Court of Appeal erroneously confirmed the conviction without
enough
proof of malice aforethought. That was also the substance of the second ground
of appeal in the Court of Appeal. The thrust
of Mr. Sekabojja's argument for the
appellant was that the medical evidence on the cause of the deceased's death was
so inconclusive
that it could not lead to an inference that the killing of the
deceased was with malice aforethought. The appellant's conviction
was based on
circumstantial evidence, which the learned trial judge believed to be true. In
addition to the medical evidence, the
rest of the evidence was on the conduct of
the appellant and the statements he made immediately before, and immediately
after the
death of the deceased. Four witnesses gave the evidence on the
appellant's conduct and statements.
The key witness was one Agnes
Bwerere, the widowed mother of the deceased. Before the deceased's death, Agnes
and the appellant had
cohabited as lovers, but because he mistreated her
habitually, they separated after about five months and she left his home. Later,
on 23. 2. 97, she met the appellant. He tried to force her to return to his
home, but she refused. He took her to an LC 1 official's
home, apparently for
reconciliation, but after she explained to the official why she was unwilling to
resume the cohabitation, the
official said she was free not to do so. The
appellant went away and she stayed at the official's home for a night. The
following
day the appellant came to her and said that he had removed her
daughter from James Bunini's home where she had been staying, and
he threatened
that he would kill the child if Agnes did not return to him. She retorted that
she would report him to the authorities.
Later that day, he returned to inform
her that he had killed the child. He said that the child's body was hanging on a
tree at Ndolwa
and her dress was also in a nearby tree. In his evidence, James
Bunini who is Agnes' brother, confirmed that the appellant had taken
the
deceased from his home. He said that the appellant came to his home under the
pretext that Agnes had sent him to collect the
deceased, and that he had
believed the appellant and allowed him to take the child away. Agnes, James, D/W
Cpl.Kyazike and Stephen
Bitature, LC 1 Chairman, testified that the deceased's
dress and body were found at Ndolwa, the place that the appellant had mentioned
to Agnes. The body was tied with a sisal rope by the neck hanging from a tree.
Meanwhile the appellant disappeared from the village
for about five days.
Another piece of evidence that the trial court relied on, but which the Court of
Appeal held to be inadmissible,
was a statement the appellant made when he was
in police custody.
The medical evidence comprised of a post-mortem
report made by a doctor who examined the deceased's body at the place where it
was
found on 26.2.97. Dr. John Were who knew the handwriting and signature of
the author produced the report in evidence. The substance
of the report was the
opinion of its author that the cause of death was asphyxia and that the head of
the deceased was battered before
she was hanged. According to Dr. Were, the only
indicator on the report from which asphyxia could be inferred was that the body
was
found hanging on a tree by the neck; and the indicator of battering was a
swelling on the right praetor area of the head. He testified
that there was no
indication from the report that the body was opened up during the post-mortem
examination. He opined that opening
the body would have revealed internal
indicators of the cause of death. In case of asphyxia, there would have been
internal swelling
of subcutaneous tissue around the neck and pulmonary oedema
swelling of the lungs. He also opined that the battering could cause
death if it
led to internal bleeding. The internal indicator of that would be blood in the
brain. Dr. Were concluded that there was
not enough information in the report to
show conclusively that the cause of death was asphyxia or bleeding in the brain.
On that
apparent criticism of the post-mortem examination, Mr. Sekabojja pegged
his submission that the medical evidence on the cause of
death was inconclusive,
and his argument that therefore, malice aforethought was not proved beyond
reasonable doubt. With due respect
to learned counsel, however, we found no
merit in his submission and/or argument.
The learned Justices of Appeal
considered the same argument. They reviewed at length, the evidence as evaluated
by the trial judge
and upheld his conclusion that whoever killed the deceased
did so with malice aforethought. We respectfully agreed with them and
did not
find any error of law or fact in their judgment. We were satisfied that the
evidence, which we have summarised, proved overwhelmingly
that the appellant
killed the deceased intentionally. He declared his intention before the killing.
After the event, he confessed
to the killing and went into hiding. There can be
only one inference from the acts of battering the child's head and hanging her
by the neck, namely that the appellant who perpetrated those acts intended to
kill her. Invariably, in homicide cases, malice aforethought
is inferred from
the actus rea (the unlawful act), rather than from the cause of death.
The importance of proving the cause of death is to establish the nexus between
the death and the actus rea in order to rule out the possibility of death
having been by other innocent causes. In the instant case that nexus was
established,
and the malice aforethought was properly inferred from the actus
rea. Therefore, Dr. Were's opinion, which in effect was that he could not
say conclusively which of the two acts led to the death, was
immaterial. It was
for those reasons that we dismissed the appeal and upheld the appellant's
conviction and sentence.
We are constrained, to comment for guidance,
on a statement the appellant allegedly made while in police custody, because we
continue
to come across many cases, in which trial courts do not follow the
proper procedure for admission of such statements in evidence.
In the instant
case, the trial court received the statement in evidence without testing its
admissibility in a trial within a trial.
The defence did not raise any objection
to the evidence of PW 6, the Police Officer who recorded the statement, until he
had narrated,
and the trial judge had recorded detailed contents of the
statement. In his ruling on the objection the learned trial judge said
-
"The usual procedure is for Counsel in a case where the suspect is
represented to raise an objection long before court gets to know
that accused
made a statement. It would have been different if accused was
unrepresented. As it is now, court and the assessors know what is contained
in it. It is therefore too late to remove its contents on record. What
Counsel
is raising is a retraction of the statement. I would therefore not reject it but
instead advise the defence to discredit
the same through cross-examination of
the witness. The same shall therefore be received in evidence..." The Court
of Appeal quite rightly disapproved of this ruling, and held that despite the
late objection, the trial judge should have
held a trial within a trial, and
directed the assessors and himself to disregard it, if he found that it was not
made voluntarily.
We should add here that if in such trial within trial he had
found that the statement was made voluntarily, it would not have been
expunged
on appeal. The learned Justices of Appeal went on to say -
“ in a
case where the prosecution has an extra judicial statement implicating the
accused he should let his counsel know about
it. We say so because there is a
duty on all court officers to see that justice is done and that the accused gets
a fair trial. We
are aware that the present summary of facts is inadequate and
does not offer sufficient opportunity to the accused to prepare his
defence."
They appropriately cited Kawoya Joseph vs. Uganda Criminal
Appeal No.50/99, in which this Court held in similar circumstances, that the
trial judge should not permit the reception
of such evidence without
ascertaining that the accused person is aware of the consequences of its
reception. While we agree with
the learned trial judge's comment in the ruling,
on what he expected of defence counsel, his observation that it would have made
a difference if the accused were not represented is wrong, to the extent that it
implies that he overlooked the mistake because the
accused was represented.
True, the defence counsel has the primary duty to ensure protection of his
client's interests, but the court's
overall responsibility to ensure that proper
procedure is followed and that justice is done, remains the same, whether the
accused
is represented or not. It would be anomalous and unjust to allow an
accused to be disadvantaged merely by the slowness or ineptitude
of his
counsel.
DATED at Mengo this 18th day of June 2004.
A.H. O. ODER
Justice of the Supreme Court
J. W.N. TSEKOOKO
Justice of the Supreme Court
A.N. KAROKORA
Justice of the Supreme Court
J. N. MULENGA
Justice of the Supreme Court
C.M. KATO
Justice of the Supreme Court
