THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KASESE
HCT-25-CR-SC-0112-2024
UGANDA=======================================PROSECUTOR
VERSUS
MUJWARA PASCAL==================================ACCUSED
BEFORE JUSTICE DAVID S.L MAKUMBI
RULING ON SUBMISSION OF NO CASE TO ANSWER
BACKGROUND:
The Prosecution case is that on the 10th day of October 2023, the victim Patricia Mbambu currently aged 13 years old and a resident of Bwethe village, Kanyatsi Parish, Kyondo sub-county in Kasese District, was defiled by the accused Mujwara Pascal.
The Prosecution alleged that the victim’s mother left her at home sleeping on the day in question while she went to work in the garden. Upon her return from the garden, the victim’s mother found her crying and the victim narrated the ordeal to her.
The victim was medically examined and found to be dumb with difficulty speaking and physically retarded. She was further found to have semen around her genitals as well as lacerations on the left of the labia minora.
The accused person was also medically examined and found to be mentally alert and healthy.
The Accused was subsequently arrested and charged with the offence of Aggravated Defilement contrary to Section 116 (3)&(4)(b) of the Penal Code Act.
EVIDENCE:
The Prosecution relied upon evidence of a Medical Report admitted in evidence as part of the Agreed Facts in the matter. The medical report received and marked in evidence as Prosecution Exhibit No. 1 detailed the medical examination of the victim Mbambu Patricia on Police Form 3A. Emmanuellina Kabugho, a Registered Nurse, conducted the examination on the 11th day of October 2023 at Kyarumba Health Centre III.
According to the results of the examination, the following significant observations were made:
Concerning the history and circumstances of the incident Ms. Kabugho recorded,
“Yesterday at around midday the mother of the victim came from the garden. On reaching home the daughter told her that a man came from the neighbourhood, opened her legs up and put something on her vulva and started up and down movements. When she was asked she said it was Seguya. She is dumb and physically retarded has difficulty in speaking but some words can be heard.”
The information above was recorded as received from Mbambu Jane the mother of the victim.
Concerning the physical condition of the victim, Ms. Kabugho noted that, “The victim is dumb, came with semen around the vulva the left part of the minora was lacerated but the hymen was intact (meaning there was no penetration).”
Concerning the mental status (including behaviour and emotional state) of the victim, Ms. Kabugho noted that, “Dumb and physically retarded with difficulty speaking (born like that).
Concerning physical examination of the victim, Ms. Kabugho made the following observations:
Of the head and neck region, “The head is microcephaly (abnormally small), neck normal, mouth (drooling of saliva).
Of the genitals, “Has fluid (semen) around her genitals, left side of the minora is lacerated but hymen intact.”
Concerning materials/ samples of analysis/evidence (indicate materials/samples taken for purposes of analysis/evidence Ms. Kabugho noted that, “Semen seen, laceration of left side of minora.”.
The Prosecution further relied upon the evidence of PW2 Mbambu Jane the victim’s mother and PW3 Bisogho Jackson Joseph the Vice Chairman LC1 in Bwethe village.
Having presented the aforementioned evidence the Prosecution closed its case whereupon the Defence made submissions on no case to answer which submissions the Prosecution responded to before the Defence made its final submissions on the same in rejoinder.
SUBMISSIONS:
In submitting that the Accused had no case to answer, the Defence pointed out that the court must be satisfied that there is evidence to prove the essential elements of the offence being that:
The victim was below 14 years old.
Aggravating factors if the victim is above 14 years of age
Victim experienced carnal knowledge
Participation of the Accused.
The Defence pointed out that the Prosecution had relied on the evidence of three witnesses of which none was a direct witness. PW2 the victim’s mother had informed court that she was absent at the time of the offence and had only been told that a man had had sexual intercourse with the victim. She then testified that she reported to the LC1 Chairperson who came to the victim’s home an hour later with the Accused person and that the victim had pointed out the Accused.
PW3 had then testified and brought out a version contradicting PW2 when he made no mention of coming to the victim’s home with the Accused. He only testified that he went to the victim’s home but had failed to interact with her as he could not understand her.
The Defence further contended that PW2 had testified about the genital area of the victim having semen but that the Prosecution had not adduced evidence that the semen on the genital areas belonged to the Accused. Furthermore, PW2 had told court that she relied on the victim’s gestures demonstrated by the victim but there was no corroborative evidence placing the Accused at the scene and that not even the investigating officer had been brought before court.
To the extent of the above, the Defence contended that the Prosecution had not made out a case against the Accused person warranting being put to his defence.
For its part, the Prosecution contended in response that it had discharged the burden of proving the Accused’s guilt. The Prosecution argued that all the ingredients of the offence had been proved and that the Defence had only contested the participation of the Accused.
The Prosecution argued that there was no doubt that the victim was below 14 years of age by the court’s own observation and as this was corroborated in Police Form 3A (Prosecution Exhibit 1).
The Prosecution then argued that the sexual act had been proven beyond reasonable doubt as Prosecution Exhibit 1 showed that she had semen on her private parts with lacerations to the left side of labia minora while the hymen remained intact. Furthermore, PW2 testified that the victim had told her through signs that she had been sexually molested.
The Prosecution contended that PW3 who turned hostile had stated in his police statement (Prosecution Exhibit 3) that when he visited the home of the victim she communicated to him using gestures. Prosecution asserted that this evidence along with that in the medical report proved that a sexual act had been perpetrated against the victim with the definition specified under Section 116(3) of the Penal Code Act.
As concerns participation the Prosecution contended that the Accused was a resident of the same area as the victim and therefore known to the victim. PW2 had testified that the victim identified the Accused as the one who molested her and she had thereafter reported to the LC1 Chairman PW3 who turned hostile.
The Defence argued in rejoinder that the semen found on the victim was not confirmed as that of the accused person. The Defence further contended that PW2 never found the Accused at her home and furthermore PW3s evidence about the Accused being identified by the victim was unreliable as he denied the police statement. The Defence further contended that the LC1 Chairman never testified in the matter as PW3 had identified himself as Vice Chairman LC1.
ANALYSIS OF EVIDENCE:
In criminal trials, it is trite that the burden of proof is always on the Prosecution and never shifts save for specific statutory exceptions of which the offence of Aggravated Defilement to does not qualify.
Section 74(1) of the Trial on Indictments Act provides that upon the closure of the prosecution case if the evidence of the prosecution is found not to be sufficient then the court shall record a finding of not guilty after hearing from the advocates for the prosecution and the accused.
Section 74(2) of the same Act conversely provides that where the evidence of the prosecution is found to be sufficient then the accused is informed of their rights and accordingly given the option to commence their defence.
The sufficiency or insufficiency of the evidence as referred to in Section 74 of the Trial on Indictments Act is what ultimately determines whether or not there is a prima facie case against the accused by the close of the prosecution case.
While the standard of proof criminal trials is proof beyond reasonable doubt the standard for determining whether an accused person has a case to answer is evidence of a prima facie case. It is also trite that a prima facie case is established when the evidence adduced is such that a reasonable tribunal, properly directing its mind on the law and evidence, would convict the accused person if no evidence or explanation was set up by the defence.
In the case of Bhatt v R (1957) EA 322, the East Africa Court of Appeal held that a prima facie case could not be established by a mere scintilla of evidence or by any amount of worthless, discredited prosecution evidence.
The standard of proof for a prima facie case therefore may not reach proof beyond reasonable doubt but should also not be based on whimsical evidence and allegations.
To that extent therefore the sum total of the evidence adduced by the close of the Prosecution case must be of such sufficiency that in the absence of any evidence being led in defence of the Accused it would result in a conviction.
The main issue therefore is whether the Prosecution has established a prima facie case warranting the Accused being put to his defence.
In addressing this issue I bear in mind three central ingredients.
A victim below the age of 14 years (Aggravating Factor)
An Unlawful Sexual Act
The Participation of the Accused
As concerns the victim’s age, this was determined in Prosecution Exhibit No 1 as having been 12 years as at the time of the alleged offence. Prosecution Exhibit 1 being Police Form 3A which contained the results of the medical examination of the victim. This form was admitted in evidence as part of the agreed facts between the Prosecution and Defence in keeping with Section 67 of the Trial on Indictments Act.
By this Court’s own observation, the victim clearly had the appearance of a young child but there was also a potential concern here as by the same medical examination it was stated that the victim was physically retarded in growth. The nurse who conducted the examination stated that the victim was a little girl born on 19th April 2011 and was therefore 12 years old. This was likely information provided by her mother. However, since this information was not disputed and from the obvious appearance of the victim this Court shall accept 12 as the apparent age of the victim at the time of her alleged defilement.
With regard to the unlawful sexual act perpetrated against the victim, the Defence did not dispute the act itself. As far as proof of a sexual act is concerned the Supreme Court held in the case of Hussein Bassita v Uganda – Criminal Appeal No 35 of 1995 that,
“The act of sexual intercourse of penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence.”
In this case, the evidence of sexual intercourse was primarily the medical report admitted in evidence as Prosecution Exhibit 1. As highlighted above, among the findings of the medical officer were that the victim had semen on her private parts and lacerations which were associated with attempted rape (sexual assault). Furthermore, the victim’s mother PW2 testified that the victim had communicated to her through gestures that she had been sexually assaulted. This evidence was also not disputed by the Defence. This Court accordingly found the evidence to prove that there was reasonable ground to believe that the victim was sexually assaulted. However, I feel it necessary to point out that the basis for drawing this conclusion is mainly because of the finding of lacerations. There were some inconsistencies in the findings in the medical report that warranted further explanation. According to the report, the medical examination was done on 11th October 2023, the day after the victim was assaulted. It therefore begged the question as to whether in fact semen could still be evident on the victim almost 24 hours or more after the alleged assault. The report did not specify whether there were dried traces of semen given that the examination was reportedly done the following day.
As concerns the participation of the Accused, the evidence in this regard is completely circumstantial as indeed, there was no independent witness who saw the Accused at the victim’s house when the incident took place save for the victim herself. Ordinarily the evidence of the victim alone should suffice provided the court finds the victim to be truthful and reliable. In the case of Ntambala Fred v Uganda – Criminal Appeal No. 34 of 2015 [2018] UGSC 1 the Supreme Court held that,
“The value of corroboration is rooted in the legal standard (proof beyond reasonable doubt) that must be met by the prosecution in order to secure a conviction. Consequently the prosecution may find it necessary to adduce evidence from more than one witness in order to prove their case beyond reasonable doubt. Nevertheless, Section 133 of the Evidence Act provides that: ‘Subject to the provisions of any other law in force, no particular number of witnesses shall in any case be required for the proof of any fact.’
Consequently, a conviction can be solely based on the testimony of the victim as a single witness, provided that the court finds her to be truthful and reliable.”
In the same case above, Justice Tibatemwa-Ekirikubinza warned in a concurring judgment of the need for courts to warn themselves of the danger of acting on uncorroborated evidence in cases of sexual assault due to the perception that women were particularly prone to “malice and mendacity” and were “particularly adept at concealing it”. The learned Justice went on to hold that,
“What I must therefore emphasize is that the evidence of a victim in a sexual offence must be treated and evaluated in the same manner as the evidence of a victim of any other offence. As in other cases, the test to be applied to such evidence is that it must be cogent.”
Bearing the above in mind, I take into account whether the available evidence of the Accused’s participation is not only corroborated but is also cogent. In other words, is the evidence clear, logical and convincing?
In this matter, what is apparent is that due to the victim’s mental handicap, the Prosecution placed reliance on her mother to tell her story. The Defence contended that PW2 the mother’s version of events differed from that of PW3 the LC1 Vice Chairman. She testified that PW3 had come to her home along with the Accused at which point the victim had gestured towards the Accused as the one responsible for defiling her. This was denied by PW3 who testified that he had come alone to the victim’s house and had tried to communicate with her and failed due to her speech impediment. He further denied making a statement to police by which the Prosecution asserted that he had told police that the victim had informed him that the accused had defiled her.
The Prosecution opted to treat PW3 as a hostile witness. However, as much as he was considered hostile because he disowned the police statement originally attributed to him and had testified in court that he had not managed to communicate with the witness contrary to the police statement he disowned, there was one thing that was consistent in both his testimony and the disputed statement. Even if the Court were to disbelieve one or the other, what was clearly evident was that neither the court testimony nor the police statement (Prosecution Exhibit 3) brought out evidence that PW3 had come to the victim’s home with the Accused in order for her to identify him to PW2.
PW2 testified that the victim identified the Accused to her by way of gestures when he came to her home with the LC1 Chairman after she reported the matter. However, in both his court testimony and the impugned police statement, PW3 interacted with the victim prior to going to meet the Accused to question him about the incident. He never testified at all about having gone to the home of the victim and her mother in the company of the Accused. Therefore, as much as he had in fact turned hostile to the Prosecution, both versions of evidence he presented to court and the police never mentioned going to the victim’s home with the Accused. This therefore left the evidence of PW2 in this regard uncorroborated.
However, as indicated above, the guiding factors for this Court in determining whether the evidence of PW2 concerning the identification of the Accused is sufficient for purposes of establishing a prima facie case are that PW2 must be found truthful and reliable and furthermore her evidence must be clear, logical and convincing.
The main challenge with the evidence of PW2 rests in its reliability given that she was testifying to information supposedly relayed to her by her daughter. While as a mother of the child, she would be the best person to be able to relay her child’s information about the incident, this Court cannot ignore the obvious mental handicap of the child. This mental handicap naturally begged the question as to whether an objective and reasonable person could conclude that the victim had correctly identified the Accused to her mother. This in my view was not achievable without a professional medical assessment of the victim’s mental handicap. She may indeed have been capable of communicating with her mother through some rudimentary sign language but the issue remained whether she could reliably and correctly identify the Accused.
The fact that the Prosecution did not see fit to subject the victim in this matter to proper mental examination despite the obvious observations made in her initial general medical examination was a major oversight. This is because without proper mental evaluation of the victim, it casts doubt on whether she had the capacity to effectively communicate what had happened to her let alone identifying the Accused as her attacker.
Furthermore, while the evidence of the victim as relayed through PW2 her mother could have arguably been admissible under Section 6 of the Evidence Act as facts which are the immediate occasion of facts in issue, PW2s testimony would still require corroboration per the Ntambala decision cited above. In the absence of corroboration, the Court would have to warn itself of the risk of proceeding on the evidence of only one identifying witness who is not even a direct witness.
The challenge concerning corroboration of PW2s evidence in this matter is that the only potential corroborative evidence placing the Accused at the scene was supposed to be PW3s testimony, but as explained above the testimony was to the effect that PW3 was unable to communicate with the victim. The Prosecution tried to discredit the testimony of PW3 who had turned hostile by tendering in his police statement. However, as already explained there was nothing in the statement to suggest that the Accused was with him when he visited the home of the victim. Furthermore, even if PW3s evidence had been to the effect that the child told him that it was the Accused who defiled her, the next requirement for the Prosecution would have been to prove that she had been correct in her identification in light of the mental handicap highlighted in Police Form 3A (Prosecution Exhibit 1).
In circumstances involving victims of or witnesses to crime, it is always advisable for the Prosecution to bear in mind the provisions of the Mental Health Act in the absence of more specific provisions in the Trial on Indictments Act and the Criminal Procedure Code Act. Section 54(1) and (2) of the Mental Health Act provide that,
A determination of the mental health status of a person shall be carried out, where it is required for proceedings before a court of law or for any other official purpose.
A determination under subsection (1) shall only be carried out by a psychiatrist or where a psychiatrist is not available, by a senior mental health practitioner.
In my view the purpose behind the provisions above is enable Court to reach an informed decision on any issue that may involve questions of mental capacity or incapacity as the case may be. In this case, it is evident that the victim’s medical examination raises reasonable ground to question whether the victim had been capable of effectively communicating her ordeal to her mother.
Furthermore, it is also pertinent to note that the victim in this matter being a child of tender years would also have been required to go through a voire dire procedure in line with Section 40(3) of the Trial on Indictments Act. However, a voire dire without certainty about the mental capacity of the victim would be an academic exercise at best.
In the circumstances this Court must bear in mind that the challenges inherent in the testimony of PW2, these challenges being:
PW2’s account of the defilement is not direct evidence (hearsay)
The defilement victim was a child of tender years
The defilement victim was suffering from a mental handicap
The evidence of identification of the offender was uncorroborated
I also agree with the argument of Counsel for the Accused that the semen allegedly found on the victim was never linked to the Accused. To me this begs the question as to why currently with the proliferation modern forensic techniques such as DNA evidence Prosecution still has to rely on tedious, time-consuming and often unreliable circumstantial evidence to identify alleged sexual offenders. This is a matter that needs to be seriously addressed to ensure swift justice for both victims and offenders in sexual crimes.
In my considered view, the challenges above render it unsafe for this Court to conclude that that Accused participated in the defilement of the victim in this matter. It is also pertinent to note in this matter that the Investigating Officer in the matter never testified. In the Supreme Court case of Alfred Bumbo and 3 Others v Uganda – Supreme Court Criminal Appeal No. 28 of 1994 it was held 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.”
It was further held that,
“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.”
From the case above, it is clear that absence of evidence of an investigating officer may not necessarily invalidate a conviction provided the rest of the evidence in the matter is cogent and sufficient to prove the Prosecution case. In this matter though, the nature of the evidence rendered the need for testimony from an investigating officer vital especially given that one of the key Prosecution witnesses ended up turning hostile.
ACQUITTAL:
Considering the analysis of this Court above, it is my conclusion in line with Section 74(1) that the Prosecution has not made out a prima facie case against the Accused in this matter.
I therefore find the Accused not guilty of the offence of Aggravated Defilement and accordingly acquit him. The Accused is discharged and free to go unless there is any other pending case.
However, before I take leave of this matter I feel it is important to stress the duty of the Prosecution not to simply produce Accused persons and witnesses in court but to exercise due diligence in ascertaining the competence of both Accused persons and witnesses in terms of their respective participation in the trial. In this regard, the mental capacity of both Accused persons and witnesses goes to the heart of ensuring a fair trial as guaranteed under Article 28.
The filling of Police Form 3A for victims of sexual assault and Police Form 24A for persons accused of sexual offences is not a mere academic exercise for purposes of criminal trials. The information therein is not just for the Court to satisfy itself of the adequacy and legality of the Prosecution case, it is intended that such information will be the Prosecution’s first point of reference in the determination of whether an Accused person is mentally competent to stand trial or whether a sexual assault victim is a competent witness. When in either situation it becomes clear to the Prosecution that there is a concern about the mental capacity then the Prosecution is duty bound to ensure that a proper medical examination is done in accordance with Section 55 of the Mental Health Act. Based upon the findings in such a report, the Prosecution ought to make a determination of whether the trial is still sustainable and if it is not then the matter should not be committed for trial but instead referred to the Director of Public Prosecutions to consider whether to withdraw charges. The committal of cases with obvious evidential challenges is not only a violation of the right to fair trial but is also an abuse of court process and contributes to the clogging of the court system with unsustainable cases.
I therefore urge the Prosecution to pay closer attention to medical examination of Accused persons and victims of crime prior to committal for trial.
Ruling delivered this 22nd day of July 2024.
David S.L. Makumbi
JUDGE
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