- Flynote
-
- Order
-
- Case summary
-
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT FORT PORTAL
HCT-01-CR-SC-00325 OF 2022
UGANDA==================================================PROSECUTION
VERSUS
AHAISIBWE DERRICK
===================ACCUSED
MUHUMUZA ROGERS
BEFORE: HON. JUSTICE DAVID S.L. MAKUMBI
JUDGMENT
BACKGROUND:
The State’s case is that on 11th January 2020, one Kamuntu John, a resident of Kicuna “B” Cell, Rwengaju Sub-county in Kabarole District realized that his son Tumusiime Nelson aged 8 years old had not returned home. He thought that the boy had stayed overnight at his aunt’s place and on 12th January 2020 he contacted the aunt who informed him that the boy had not slept at her place. Kamuntu alerted the Chairperson LC1 and continued the search. Information started to emerge that the boy had last been seen with Ahaisibwe Derrick (A1) and Muhumuza Rogers (A2).
On 13th January 2020, Kamuntu heard a radio announcement that a boy fitting the description of his missing son had been discovered in a crater lake in Bwabya and that the police had recovered the body and taken it to Buhinga Hospital. Kamuntu immediately proceeded to Buhinga Hospital where he tragically confirmed that the deceased child was his missing son Tumusiime Nelson. A post mortem examination of the deceased child established that he had a cut wound on his right ear, three penetrating injuries on the elbow joint, injuries on the right buttock and a penetrating injury to the abdomen with intestines protruding. The cause of death was established as sharp force trauma with multiple stab wounds leading to hypervolemic shock.
Police attempted to track down A1 and A2 at their home but were initially unsuccessful. However, they were eventually tracked down to the home of their grandmother Teopista Kajumba in Hakibale sub county in Kabarole District. They were subsequently arrested and interrogated. They both admitted to having been with the deceased on the fateful day but denied killing him.
A1 and A2 stand indicted of Murder contrary to Sections 188 and 189 of the Penal Code Act. It is alleged in the indictment that the accused persons and others still at large on the 11th day of January 2020 at Kicuna Village, Kicuna Parish, Rwengaju sub-county in Kabarole District with malice aforethought caused the death of Tumusiime Nelson.
THE BURDEN AND STANDARD OF PROOF
According to the time-honoured case of Woolmington v DPP (1935) AC 462, the Burden of Proof in criminal trials is always on the Prosecution. In that regard the Prosecution always has the duty to prove each of the ingredients of the offence and generally speaking the burden never shifts onto the accused except where there is a statutory provision to the contrary.
The Standard of Proof in criminal trials is proof beyond reasonable doubt and is met when all the essential ingredients of the offence are proved beyond reasonable doubt. The locus classicus in this regard is the case of Miller v Minister of Pensions (1947) 2 All ER 372 wherein Lord Denning stated at Pages 373-374 that,
“The degree of beyond reasonable doubt is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with a sentence: ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt; but nothing short of that will suffice.”
The legal standard in the determination of whether or not the burden and standard of proof has been properly met will be done in accordance with the Supreme Court decision in Abdu Ngobi v Uganda – Criminal Appeal No. 10 of 1991 where it was held that,
“Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt.”
Section 188 of the Penal Code Act provides that,
“Any person who of malice aforethought causes the death of another person by an unlawful act or omission commits murder.”
The ingredients apparent in the offence of murder are therefore,
Death of a human being;
Death was caused unlawfully;
Death was caused with malice aforethought; and
The Accused person is responsible for the death.
ANALYSIS OF THE EVIDENCE:
Death may be proved by the production of a post-mortem report or evidence of witnesses who state that they knew the deceased and attended the burial or saw the dead body (see Kimweri v Republic [1968] EA 452)
According to the post-mortem report entered in evidence as PE 1 prepared by Dr. Katalemwa Jonathan on 13th January 2020, the cause of death of the deceased, an eight-year-old child, was sharp force trauma and hypovolemic shock, resulting from multiple penetrating injuries.
PW2, Kamuntu John, the father of the deceased, testified that he knew the deceased as his child. When he went to the mortuary, he was able to identify the body as Tumusiime Nelson, his child, and that the deceased was later buried in Kicuna “B” Cell.
Based upon the foregoing, there is no doubt that Tumusiime Nelson died. The Defence did not contest this ingredient.
It is trite law that any homicide (the killing of a human being by another) is presumed to have been caused unlawfully unless it was accidental, or it was authorised by law (see Gusambizi s/o Wesonge v R [1948] 15 EACA 65).
Regarding the unlawful nature of death the Prosecution led evidence as follows.
According to PE 1, the deceased’s body had external injuries. The right ear had a cut wound at the attachment to the main body. There was also a penetrating injury at the right eye with blood covering the site. The deceased’s body had three penetrating injuries at the interior aspect of the elbow joint. It also had four penetrating injuries posterior to the knee joints of both limbs. The left lumber had a penetrating injury with intestines protruding out.
The cause of death was sharp force trauma and hypovolemic shock with multiple stab penetrating injuries.
PW3, Rwahwera Christopher John, testified that he saw the body of the deceased after it had been recovered from the lake and he observed it to be that of a young child with multiple wounds in the neck and the stomach.
The foregoing evidence leaves no doubt that the deceased met his untimely end violently and in unlawful circumstances. The Defence did not contest this ingredient either.
The next ingredient to consider is malice aforethought.
In the case of Mumbere v Uganda – Supreme Court Criminal Appeal No 15 of 2014, the Supreme Court held that,
“The elements of malice aforethought are well set out under Section 191 of the Penal Code Act as follows:
‘Malice aforethought shall be deemed to be established by evidence providing either of the following circumstances—
(a) an intention to cause the death of any person, whether such person is the person actually killed or not; or
(b) knowledge that the act or omission causing death will probably cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused.’
We also wish to note that this Court in Nandudu Grace & Another v. Uganda, Criminal Appeal No.4 of 2009 reiterated the ratio in the earlier decision of this Court in Francis Coke v. Uganda [1992-93] HCB 43 that the existence of malice aforethought is not a question of opinion but one of fact to be determined from the available evidence.
We also hasten to add that in determining whether the prosecution has proved malice aforethought, the Court has to examine the circumstances surrounding each case. These circumstances include: (i) the nature of the wounds inflicted; (ii) the part of the body injured; (iii) the type of weapon used; (iv) the conduct of the accused person immediately before and after the injuries causing death were inflicted; and, (v) the manner in which the weapon was used-whether repeatedly or not.”
Based upon the standard established above, the Prosecution case on malice aforethought as determined from the post mortem report is that the deceased suffered external injuries to wit,
Right ear cut wound at the attachment to the main body halfway with either half still intact measuring 5x1 cm.
Penetrating injury at the lateral corner of the right eye with blood covering the site.
Three penetrating injuries at the anterior aspect of the elbow joint.
Penetrating injury around the right buttock.
Four penetrating injuries posterior to the knee joints of both limbs approximately 1 cm in diameter.
Left lumbar penetrating injury with intestines protruding out.
The cause of death in the report was stated to be sharp force trauma with multiple (stab) penetrating injuries and hence hypovolemic shock.
The foregoing evidence established that the deceased was stabbed repeatedly with a sharp object with at least one of the stab wounds being to the midsection leading to protrusion of the intestines. The use of a sharp object to repeatedly stab the deceased with one of the stab wounds being to the midsection established beyond reasonable doubt that there was malice aforethought. The Defence did not contest this ingredient either.
As concerns the participation of A1 and A2 in the murder, the Prosecution based its case entirely upon circumstantial evidence. In that regard the court heard the testimony of various witnesses as follows.
PW1, Tumusiime Christopher, testified that on the 11th of January 2020 at around 5:30 pm, he saw A1 with the deceased passing through the compound. The deceased had a phone on which he was playing music and he told PW1 that he was going nearby and left with A1. The following day, the father of the deceased came to PW1’s home at about 8PM and informed him about the missing child and PW1 had then informed him about having seen the child that evening. PW1 went on to testify that the father of the child had called at about 10PM to inform him that the child was still missing and he had advised him to go to check at the home of A1. PW1 further testified that the father of the deceased had called him the following day that his son had drowned and his body was at the mortuary. PW1 had then proceeded to the mortuary. He testified further that when he and others had gone to arrest the accused, they found that they had run away and were arrested 3 days after burial in Ntezi Village in a different subcounty.
PW1 pointed at A1 in court during re-examination and identified him as the one that he last saw with the deceased on 11th January 2020.
PW2, Kamuntu John, Father to the deceased, testified that his son had gone missing on 9th January 2020. He had then gone to check at the child’s aunt’s home where he would the child would sometimes go but she had informed him that the child had been there and left. PW2 had then called PW1 the following day and PW1 had informed him that he had seen the child with the sons of Robert (the Accused) playing music on a phone. PW2 went on to testify that he had gone to the home of the Accused and found the door locked upon which he inquired from the Accused who were inside about the whereabouts of his son. PW2 testified that the Accused denied being with the child even after he told them that they had been seen with the child. PW2 had then gone home for the evening and then learnt the following day that a child whose description matched his child had drowned. He had then gone to the mortuary where he found his deceased child.
During cross-examination, PW2 reiterated that the child had gone missing on 9th January 2020 and that PW1 had told him that he had seen both the Accused with the deceased. He further stated on cross-examination that he had received information from the village that the Accused were sent by some people to kill his son but that they had run away. He named those persons as Ashaba James and Julius and that one of them had a business in the village. He stated that they disappeared after burial and that he had heard that the Accused were given money to kill his son.
On re-examination, PW2 clarified the timeline stating that his son disappeared on a Friday and that the body had been found on a Sunday.
PW3 Rwabwera Christopher John, LC1 Chairperson testified that the body of the deceased was recovered in Bikoni, Rwengaju sub-county where he was LC1 Chairperson on 13th January 2020. He further testified that a day after the body was discovered he and others had received information from Kicuna where the deceased’s father came from that Ashaba James, a trader and bar-owner in Kikyuna was wanted in Kicuna. PW3 had then gone to Ashaba’s home where he only found Ashaba’s wife Authaire Harriet. PW3 further testified that Ashaba’s wife had given him a number to call Ashaba but the number was off.
The last witness for the Prosecution PW4, Detective Ahusungu Rogers testified regarding the arrest and stated that both the accused were arrested from Kisangi village at the home of the grandmother of the Accused. He further testified that when they knocked on the door of the house where both the accused were staying, A1 came out of the house and tried to run but was grabbed and handcuffed. He testified that police searched and found A2 under the bed.
The Defence submitted that the Accused had no case to answer on the basis that their participation had not been proved beyond reasonable doubt.
The Prosecution submitted though that circumstantial evidence had established that the deceased had last been seen with the Accused persons. The Prosecution placed reliance upon the case of Mugerwa Gerald v Uganda – Criminal Appeal No. 285 of 2016 where the Court of Appeal held that the person last seen with the deceased bears full responsibility and has to explain how the deceased met their death and argued that a prima facie case had been established.
This Court subsequently ruled that the Accused both had a case to answer and reserved its reasons pending judgment.
The Accused were put to their Defence and A2 Muhumuza Rogers exercised his right to remain silent while A1 Ahaisibwe Derrick opted to give sworn evidence in his own defence.
A1, who testified as DW1, told the court that on the 11th day of January 2020, he woke up in the morning and did some work. He then later he went to look for Kakweka so that he could buy his Bogoya. As he was going to Kakweka’s home, he met Tumusiime Nelson, the deceased on the way. He also went together with the deceased. He testified that he normally played with the deceased as a child of his neighbour and that it was the deceased who requested to go with him. When they reached Kakweka’s home, they found that he was not there and he, together with the deceased, went to a video hall. He further testified that later, at around 8PM, A1 left the deceased at the video hall and proceeded to Top Hill. The next day on Saturday, A1 did not leave home. On Sunday night, the father of the deceased came to his home looking for A2, but he told him that A2 had gone to see his girlfriend. The following day, A1 and A2 went to their grandmother’s place to work and that is when the police came and arrested them.
I have noted that there is some inconsistency in the evidence regarding the actual dates as narrated by all the witnesses. However, I deem this inconsistency minor because upon careful consideration of the testimony, there is no doubt about the days of the week involved.
PW2 stated on re-examination that his son disappeared on a Friday (9th January 2020) and that his body had been found on a Sunday. DW1 testified that he met the deceased on 11th January 2020 but he went on to testify that having met the deceased that day, he had spent the whole of the next day, which was a Saturday at home. It is clear to me that as much as the dates differ, the days of the week are consistent and establish for a fact that DW1 had in fact met the deceased the same day his father testified that he had gone missing.
From the witness testimony, the circumstantial picture portrayed is that A1 was seen with the deceased on a Friday. PW2 testified that PW1 had told him that he saw A1 and A2 with his son on the day he disappeared. However, this is clearly not the case because PW1 categorically stated that he only saw A1 and had even gone so far as to point him out in court. A2 was therefore never seen with the deceased on the day he disappeared.
It is also clear from the testimonies of both PW2 and DW1 that PW2 had at some point gone to the home of both Accused persons looking for his son. By PW2s account, the Accused persons (it was not clear who exactly) denied having been seen with his son. However, DW1 gave a different account claiming that PW2 had come to his home on Sunday and asked him where Roger was and he had told PW2 that Roger was out with his girlfriends. DW1 went on to testify that A2 had returned around 9PM that day. PW2s testimony suggested that both Accused were present at home. However, what is clear is that by both accounts A1 was at home and furthermore, it did not make sense that PW2 would only ask DW1 about where A2 was. PW2 would only have been interested in finding out where his son was. I therefore believe PW2s testimony about having asked about his son’s whereabouts. I also believe his testimony to the effect that A1 must have denied being with the child because A1s testimony about PW2 asking only about A2 does not make any sense. It is clear to me beyond any reasonable doubt that PW2 inquired from A1 about where his son was and it is also clear that A1 lied to PW2 about not being with the child.
If he had in fact been truthful to PW2 in this regard then he would have testified as much about it in his own defence. There would be no reason for him to withhold any information to PW2 about having met the deceased on that Friday and then left him at a video hall. This gives me the impression that A1 had simply constructed a defence based upon the Prosecution evidence he had heard in court.
The fact of A1 having been the last one to be seen with the child alive is not a small matter. On the doctrine of last seen, the Court of Appeal in Busingye Paul and Another Vs. Uganda Criminal Appeal No. 048 of 2019 quoting the Nigerian case of Moses Jua Vs. The State (2007) LPELR-CA/IL/42/2006, held thus:
"Even though the onus of proof in criminal cases always rests squarely on the prosecution at all times, the last seen theory in the prosecution of murder or culpable homicide cases is that where the deceased was last seen with the accused, there is a duty placed on the accused to give an explanation relating to how the deceased met his or her death. ln the absence of any explanation, the court is justified in drawing the inference that the accused killed the deceased.”
From the circumstantial evidence above, A1 was not only the last to be seen with the child alive, he had also lied to the child’s father about not having been with the child.
The other evidence pointing towards A1s nefarious intentions towards the deceased lies in the testimony received from PW1, PW2 and PW3 concerning the other alleged parties in this matter. These being Ashaba James and one Julius. Counsel for the Defence argued that to the extent that PW1 and PW2 had not stated the source of the information about Ashaba, it was hearsay and therefore inadmissible. However, on that point I disagree with Counsel.
Section 5 of the Evidence Act states that,
“Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant, whether they occurred at the same time and place or at different times and places.”
Furthermore, Section 6 of the Evidence Act provides that,
“Facts which are the occasion, the cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.”
Section 7(1) of the same Act provides that,
“Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue is a relevant fact.”
Counsel for the Defence contended that to the extent that PW1 and PW2 could not disclose who in the village they had learnt from that the Accused were involved with Ashaba and Julius, the information was hearsay. I disagree with the notion of hearsay because by both PW1s and PW2s testimonies they had come across this information in the course of trying to investigate the child’s disappearance. Their coming across the information was something they personally experienced. If they had testified about someone else learning from the village that the Accused were linked to Ashaba and Julius then that would be hearsay. Furthermore, what they testified to is relevant in line with Sections 5, 6 and 7(1) of the Evidence Act because the information in question was interconnected with the child’s disappearance, it tended to show the cause of the tragedy or state of affairs thereto, and; it constituted a motive for the crime.
In addition to the above, their evidence regarding the connection of the Accused to Ashaba and Julius was strongly corroborated by PW3s testimony to the effect that Ashaba had disappeared from his home almost immediately after the child had been discovered dead.
Counsel for the Defence raised the question of alibi, however, with all due respect I do not see how alibi comes about in this matter. This case rests on circumstantial evidence concerning how A1 was last seen with the deceased. In that regard therefore for alibi to come into play, A1 would have denied being with the child on that fateful Friday and instead sought to place himself somewhere else. In this case he wholly admitted to being with the child on the day he disappeared but claimed to have left him alive at a video hall. This defence though, when considered against the rest of the circumstantial evidence could not rebut the strength of the evidence placing A1 with the child and the subsequent evidence that pointed toward the cause and motive for the crime.
By virtue of the decision in Busingye Paul and Another v Uganda (supra) cited above, as someone last seen with the deceased the onus was upon A1 to adduce evidence tending to show he was not responsible for the deceased’s death. This in my view, he failed to do as he ended up being caught in his lies during his sworn testimony in his own defence.
It is also pertinent that at the point that A1 and A2 were arrested, PW4 testified that A2 tried to run away while A1 was found hiding under the bed. The behaviour of A1 upon arrest when considered alongside all the other circumstantial evidence can only create an inference of a guilty mind. Furthermore, both the Accused fled from their known residence and were found at their grandmother’s house in a different sub-county.
It was held in Remigious Kiwanuka v. Uganda; S. C. Crim. Appeal No. 41 of 1995 the Supreme Court that:
“The disappearance of an accused person from the area of a crime soon after the incident may provide corroboration to other evidence that he has committed the offence. This is because such sudden disappearance from the area is incompatible with innocent conduct of such a person.”
A1 testified that the reason he and A2 had gone to their grandmother’s place was to work. He never stated the nature of the work and given that he had already lied about what transpired between himself and PW2, I found no reason to believe this version of events. Defence Counsel testified that with regard to the conduct of the Accused, the Prosecution ought to have produced the grandmother of the Accused to corroborate PW4s version of events. However, in my view it is the Defence that ought to have produced the grandmother to rebut PW4s evidence and to help corroborate A1s testimony. As much as the Accused bears no burden per se to prove their innocence, the weight of the evidence and gravity of offence would have made it prudent to produce any witness beyond the accused who could discredit PW4s account of events.
Counsel for the Defence also argued about the fact that the Prosecution had failed to produce the Investigating Officer to testify and cited the decision in Uganda v Robert Sekabira and 10 Others – High Court Criminal Case No 8 of 2010 in which the Court dismissed charges on the accused on no case to answer as the police who investigated and charged the accused did not appear in court.
In making the argument above, Counsel also cited the Supreme Court case of Alfred Bumbo and 3 Others v Uganda – Supreme Court Criminal Appeal No. 28 of 1994. Counsel specifically cited the holding that,
“While it is desirable that the evidence of a police investigating officer, and or re-arrest of an accused person by the police, should always be given where necessary, we think that where other evidence is available and proves the prosecution case to the required standard, the absence of such evidence would not, as a rule, be fatal to the conviction of an accused person. All must depend on the circumstances of each case whether police evidence is essential, in addition, to prove the charge.”
The rest of the holding states,
“In the instant case we are satisfied that the absence of police evidence did not weaken the prosecution witnesses and from the appellants unsworn statements clearly indicating how and when they were arrested. Other evidence also clearly proved the prosecution case.”
Going by the Supreme Court decision above, I note that the absence of the investigating officer is not fatal PROVIDED there is already ample evidence proving the prosecution case. In this case just as in the case determined by the Supreme Court I hold the view that there is sufficient circumstantial evidence with regard to A1 as he was the last one seen with the deceased. Furthermore, in slight departure from the Supreme Court case above, there was evidence from one of the arresting officers so police evidence was not entirely absent. PW4 clearly testified on cross-examination that the reason they set out to arrest the Accused persons was because there was a capital offence. This evidence along with the rest of the evidence provided by the other Prosecution witnesses may not have been the most perfect evidence upon which to sustain a conviction but it was good enough in the circumstances to warrant the Accused being put to their defence.
All in all and bearing in mind the decision in Byaruhanga Fodori vs. Uganda, S.C. Crim. Appeal No. 18 of 2002 where the Supreme Court of Uganda held that,
“It is trite law that where the prosecution case depends solely on circumstantial evidence, the Court must, before deciding on a conviction, find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.”
I find that there is sufficient circumstantial evidence to prove beyond a reasonable doubt that A1 Ahaisibwe Derrick participated in the murder of Tumusiime Nelson. The Prosecution evidence as well as A1s own testimony establishes him as the last person seen with the boy alive. A1 then confirmed that he was at home when the deceased’s father came looking for the deceased and while he claimed the boy’s father only asked about A2 this was not at all believable as clearly the only reason the boy’s father went to A1s home was to find out where his son was. The fact that A1 lied about the purpose for which the deceased’s father went to his home was a reflection of a guilty state of mind. Furthermore, there was evidence led to the effect that tended to establish cause and motive and this evidence was made even stronger by the fact that the persons with whom A1 was involved in this criminal enterprise disappeared immediately after the boy was found dead. The final damning evidence rested in the conduct of A1 prior to and during arrest. The evidence shows that he and A2 left their known home and went to their grandmother’s home in a different sub-county. This by and of itself alone would not have been suspicious as visiting a relative is not a crime but the conduct of A1 in hiding under the bed when police arrived to arrest him was further indication of a guilty state of mind. This led me to infer that the reason he was at his grandmother’s home was to try to evade arrest. I have also taken into account the fact that as the person last seen with the child alive, A1 played a very pivotal role in the circumstances leading to the death of the child. He may or may not have been the architect or even direct implementer of the murder but what is clear is that he led the child to what would ultimately prove to be his savage murder.
In the case of Ismail Kisegerwa and Another v Uganda - Criminal Appeal No 6 of 1978 the Court of Appeal held that there need not be an arranged plan among those involved in the commission of the crime. The action must show that the accused was not a mere spectator but took active part in executing the unlawful purpose. With this decision in mind I am fully persuaded that even without full details of the plan to kill the deceased, A1 being the last person seen with the deceased and his subsequent conduct is enough to demonstrate that he was no mere spectator but an active participant in the overall plot that led to the deceased losing his life.
However, as concerns A2 Muhumuza Rogers I find that in as much as he was never seen with the deceased and also the fact that the evidence is inconclusive about whether he was present when PW2 went to the Accused’s home looking for his son, there is no evidence beyond reasonable doubt of his participation in the crime. His conduct in hiding under the bed when police arrived to arrest him at his grandmother’s house was certainly suspicious. However, without any evidence placing him with the deceased prior to his disappearance one can only speculate at the role he played if any in the murder of the deceased and speculation cannot form the basis for a conviction.
CONVICTION:
I therefore agree with the Assessors and find that the Prosecution has proven beyond reasonable doubt that A1 Ahaisibwe Derrick unlawfully and with malice aforethought killed Tumusiime Nelson but given that he is now deceased, the case against him automatically abates.
ACQUITTAL:
I agree with the Assessors and find that the Prosecution has not proven beyond reasonable doubt the participation of A2 Muhumuza Rogers in the killing of Tumusiime Nelson and to that extent I acquit him of the offence of murder and he is free to go unless there are any other pending charges against him.
Right of appeal explained.
David S.L. Makumbi
JUDGE
09/06/24
Page 6 of 6