Uganda v Bumbakali & Ors (Criminal Session Case No. 74 of 1989) [1990] UGHCCRD 1 (3 January 1990)

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Criminal law|Evidence Law

Case summary

The court considered whether the victim had in fact been killed (proof of death), whether the killing had been unlawful, whether there had been malice aforethought and whether the accused persons were responsible for the killing. On the issue of proof of death, the court rejected the evidence of the doctor that had allegedly examined the body of the deceased due to major discrepancies in his identification of the body and the manifest possibility that he may have examined a different body and not that of the deceased. It reasoned, however, that evidence of death need not always be medical evidence and accepted the testimony of three persons who had personally seen the body of the deceased to make the finding that death had indeed occurred. On the lawfulness of the killing, the court relied upon witness testimony that the body of the deceased had cuts on it, and the rule that homicide, unless accidental, is always unlawful except where it is committed in circumstances that make it excusable; to make a finding that there was an unlawful killing. Next, the court considered whether malice aforethought had been proven and stated that a conviction of murder cannot follow unless malice aforethought is proved beyond reasonable doubt but failure to prove malice aforethought may result instead in a conviction for the offence of manslaughter where an unlawful killing is proved. The trial judge deemed the prosecution’s evidence insufficient to prove malice aforethought and held that it was not beyond doubt that the cuts on the body of the deceased were caused by pangas (machetes) or other weapons used for cutting in the absence of an eyewitness account of the cutting or a valid doctor’s report. The court also considered the issue of a conviction being based solely on circumstantial evidence and stated that such evidence may be relied upon if it passes the test of containing inculpatory facts that are incompatible with the innocence of the accused in addition to being incapable of explanation except upon a hypothesis of guilt, and the absence of co-existing circumstances that may weaken or destroy the inference of guilt. In the end, it determined that malice aforethought and the identity of the person that delivered the fatal blow to the deceased had not been proven, but the evidence (although circumstantial) supported a finding of guilt in respect of the lesser offence of manslaughter. The court also stated that the prosecution was not required to prove motive although motive was present then in form of the desire for revenge against the deceased. The court also stated the rule that what a witness tells the police is not in itself evidence as it is not on oath but what the witness says in court is evidence as it is on oath. However, it emphasised that discrepancies between both statements, where major, are taken into account to determine a witness’ credibility. The court noted that while there were some discrepancies in the testimonies of the various witnesses, these were minor and did not go to the root of the case and could therefore be ignored on account of human error and the length of time that had elapsed between the killing and the trial. It was also held that the accused persons had been properly identified by the eyewitnesses who had known them before, and especially by one witness who had had the opportunity to engage the accused persons and their co-perpetrators for over 15 minutes. Furthermore, the environment had been moonlit and this favoured the identification of persons whose appearance and voices were already known to the witnesses. On the issue of common intention, the trail judge held that the accused had all gone to the deceased’s house, some of them armed with pangas and others with bricks, with the intention of carrying on malicious damage to his house, committing criminal trespass and harming him. He also noted that they did so at night, a suspicious time. He thus held that there was a common intention within the meaning of s 22 of the Penal Code Act. The trial judge however held that because the element of malice aforethought had not been proven,  and because it was unknown who delivered the fatal blow that ended the deceased’s life, it was imperative and safer to convict the accused persons of manslaughter and not murder. Consequently, the five accused persons were convicted of manslaughter.

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