Muhirwe Simon v Uganda [1997] UGSC 6 (18 July 1997)

Criminal law|Evidence Law
Case summary
From the evidence that was before court, it was found that the admission of the appellant amounted to sufficient corroboration on the evidence of both prosecution witnesses that the complainant had been sexually abused. Thus, failure to conduct a voir dire in respect of one of the prosecution witnesses did not occasion a failure of justice.   Further, the appellant argued that the trail judge failed to comply with requirements regarding summing up to the assessors on the issue of corroboration in sexual offences. The court found no miscarriage of justice as a result of the failure.   Regarding sentence of the six strokes of the cane, it was found that such a sentence was not provided for under the law, thus, it was unlawful.   Accordingly, the appeal was allowed against sentence, and the same was thereby set aside.







....................................................... APPELLANT


............ RESPONDENT


(Appeal from a conviction of the High Court of Uganda at Kabale
(Mr. Justice R. Rajasingham Q.C) dated 1h September 1995 in
High Court Criminal Session Case No. 103 of 1995)


This appeal is against a conviction for defilement contrary to Section 123
of the Penal Code.

There is no appeal against the sentence of 8 years imprisonment but leave
of the Court was granted to appeal against the sentence of 6 strokes of the


Mildred Asiimwe, a Primary School girl aged about 11 years, was in the
company of two other girls picking flowers in a garden around 3.00 p.m.
in Buhara Village, Kabale District.








She described in detail how the appellant frightened the three girls and
ravished her. Her story of the attack was confirmed by one of the two
girls, Agnes Kembabazi. Apparently this was on a Friday.

As a result of information given to her on Saturday by an unnamed lady,
Rukeijakare, mother of Asiimwe, questioned Asiimwe as to what
happened the previous day when she went to school. Asiimwe told her
mother how she had been attacked by a boy when they were picking
flowers in the company of other girls. She named the other girls Kereya
and Kembabazi. She wanted to know who had done this thing, so she
went to inquire. She asked Agnes who did not know their assailant

On information from Agnes' mother Rukeijakare returned home,
examined Asiimwe and noticed pus in her private parts. She boiled water
and washed her. She went to look for the boy, but apparently without
success because on Sunday she went to ask Kereya, the third girl. She
then went of the appellant's home accompanied by Asiimwe.

In the presence of the appellant and the appellant's mother. Asiimwe
repeated what happened to her on the previous Friday. The appellant
stated he could not deny it. Rukeijakare then said since the appellant was
a relative, all she wanted was to take Asiimwe to hospital. The appellant
agreed to pay Shs -, 4,0001- as medical expenses. The group went to visit
the scene accompanied by a brother of the appellant. The mother and
brother of the appellant agreed that Asiimwe should be taken to hospital.
Back at the appellant" s home the appellant wrote a chit which he gave to


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Rukeijakare. The chit was an undertaking to bring the money that
afternoon, so that Asiimwe could be taken to Kabale the next day.

The appellant went to Rukeijakare's home in the afternoon at about 5.00
p.m. to say he had faded to raise the money. The appellant prayed for
mercy, saying he would go and tell his father. He went away but did not
return. The following day Rukeijakare went to Agnes' father from where
she went to report to the RCs of the area who advised her to report to the
Gombolola Headquarters. Someone advised her to go back to the
appellant's home. In the presence of the RCs, Butera, father of the
appellant agreed to pay for the medical treatment of Asiimwe as the
appellant had run away. Rukeijakare ultimately reported the matter to the

Dr. Pius Ruhemmana examined Asiimwe on the 17th January 1993. She
was aged 11 years, had a ruptured hymen and she felt pain in her private
parts but was without visible external injuries or bruises. In his
estimation rapture of the hymen was as recent as six days. He thought
the rapture of the hymen was a case of defilement.

The appellant gave evidence on oath, denied the offence and set up an
alibi that on the day of the alleged offence he was in Ntungamo at the

alleged time.

Both assessors. recommended that the appellant be found guilty of the
offence giving their reasons.


The learned trial Judge considered all the evidence and stated,

"This is an unusual case because it has a purported
eye witness to a sexual assault I was very impressed
with the evidence of Kembabazi Agnes. She spoke
clearly anti at a reasonable level and did not seem at all
overawed by her surroundings. She never hesitated and
in my estimate of her character she was just the sort of
person to be told enough to defy the warning and
satisfy her curiosity by peeping through her blindfold
The victim Asiimwe was shy and timid and just slow
enough to have believed it was a sorghum stick being
used by Agnes as the accused had told her. But even
she seems to have realised it was not. The victim's
mother WaS full of anguish at what had happened but
more so at the treatment her complaints received and at
the hands of the accused and his father. I have no
doubt that when this irate lady confronted him with her
daughter '.'i' story, the accused accepted the truth of it to
try to turn aside her anger by offering to pay for the
girl's treatment.

I have 110 difficulty in concluding that the accused's
attempt at an alibi has been disproved by these three
witnesses - the girls, Asiimwe and Agnes and the
victim's mother. It was broad daylight and they were
within beating range of the accused and could not have
failed to see him clearly enough to now identify him
with certainty. The evidence of the two girls along with
that of the mother of the pus in the vagina and the
doctors evidence of a vagina ruptured a week before
11h June, 1993, leave no doubt as to the fact of
defilement and penetration. I agree with the assessors.

I therefore find the accused guilty and convict him of
the offence of defilement contrary to Section 123 of the
Penal Code. "

The appeal against conviction IS on SIX grounds, the seventh was


Learned Counsel for the appellant, Mr. Lubwa, argued ground 2 and 3
together. In these two grounds the appellant complained that it was an
error in law to base a conviction on the evidence of a child of tender
years first, without conducting a vior dire and secondly without

According to the record Kembabazi was aged 13 years when she
testified. The record also show that Asiimwe, the complainant, was also
aged 13, but a voir dire was conducted by the learned trial Judge although
it appears that the witness was first sworn and then the voir dire was
conducted. The correct procedure in such a case would have been to
conduct the voir dire first and then to swear the witness if the Court is
satisfied that the witness should be sworn.

Be that as it may, it is a little strange that in the case of Kembabazi who
is stated to be the same age as Asiimwe no voir dire was conducted.

Section 38 (3) of the Trial on Indictments Decree, 1971 provides,

"Where, in any proceedings a child of tender years
called as a witness does not, in the opinion of the Court,
understand tile nature of an oath, his evidence may be
received though not given oath, if, in the opinion of the
Court, he is possessed of sufficient intelligence to justify
the reception of the evidence, and understands the duty
of speaking tire truth.

Provided that where evidence admitted by virtue of this
sub-section is given on behalf of the prosecution, the
accused shall not be liable to be convicted unless such
evidence is corroborated by some other material
evidence in support thereof implicating him. "


The expression "child of tender years" is not defined in the Decree but
considering a similar provision the Court of Appeal in Kibangeny Arap
Kolil v. R. 1959 E.A 92 at page 94, had this to say;

"There is no definition in the Oaths and Statutory
Declarations Ordinance of the expression 'child of tender
years' for the purpose ofs.19. But we take it to mean, in
the absence of special circumstances, any child of an age,
or apparent age, of under fourteen years; although, as
was said by Lord Goddard, CJ. in R. v. Campbell (1),
(1956) 2 All E.R. 272, 'whether a child is of tender years
is a matter of the good sense of the Court .... ' where there
is no statutory definition of the phrase. The two boys in
this case, both of whom were estimated to be under
fourteen years old, must therefore be considered as

children of tender years. "

The Court went on to say at page 95.

In the present case the learned trial Judge, so far as
appears from the record, made no such investigation
before affirming either of the two boy witnesses. Such
an investigation need not be a lengthy one, but it must
be made and, when made, the trial Judge ought to
record it His only note of any relevance upon the
record was one written after the conclusion of the
evidence of the elder of the two boys, and before the
calling Of the younger boy, that:

'the witness appears to be a boy of twelve to
fourteen but answers intelligently!'

That is not enough. The investigation should precede
the swearing and the evidence, and should be directed
to the particular question whether the child
understands the nature of an oath rather than to the
question of his general intelligence. Since the evidence
of the two boys was of so vital a nature we cannot say
that the learned trial Judge's failure to comply with the


requirements of s.19(1) was one which can have
occasioned no miscarriage of justice and upon this
ground alone the appeal must be allowed. "

In the case before us quite clearly the learned trial Judge was in error but
although Kembabazi' s evidence is vital and was relied upon by the
learned trial Judge there is other evidence unlike in the Kibangeny case
where the evidence of the two boys was the only evidence.

There is the evidence of Asiimwe and that of her mother an accordingly,
we do not think there is merit in the second ground of appeal that the
learned trial Judge erred in law and fact in convicting the appellant on
uncorroborated evidence of a child of tender years in so far as that
ground relates to the evidence of Kembabazi. Under Section 38 (3) of the
Trial on Indictments Decree, 1971 corroboration is required as a matter
of law only if evidence is received not on oath from a child of tender
years, who in the opinion of the Court, is possessed of sufficient
intelligence to justify the reception of the evidence and who understands
the duty of speaking the truth.

A matter which could. have been raised but was not, was the absence of
any warning to the assessors and, indeed, to the learned trial Judge
himself of the danger of convicting on the evidence of Asiimwe without
corroboration. In the case of Kabura v. Republic 1974 E.A. 188 Saiedi
J, as he then was, said at page 189:

"It is now settled that even where the evidence of a child
of tender years is sworn, then although there is no
necessity for its corroboration as a matter of law, a Court


ought not to' convict upon it, if uncorroborated, without
warning itself 0 the danger of so doing. The question
which I must ask myself is whether in the circumstances
of this case these irregularities have occasioned a
miscarriage of justice.

The position is not dissimilar to' Kalil's case (supra)
where the evidence of two boys of tender years was
received on affirmation after in irregular voir dire with
no direction as to' corroboration of their evidence. The
appeal was allowed nil the ground that both irregularities
had occasioned a miscarriage of justice. That case is of
interest in so far as the Court of Appeal had this to' say at
the end of its judgment at p. 96.

'Had there in fact been corroboration of
their story, implicating the appellant, we
might have held the failure to have
occasioned no miscarriage of justice. But
since there was no such corroboration, nor
any admission by the appellant, the failure
affords an additional ground for allowing
the appe4'll '. "

There was the evidence of Rukeijakare that the appellant admitted assault
on Asiimwe and offered to pay medical expenses in the presence of his
father. The learned trial Judge noted the anguish of this witness at what
had happened to her daughter. He had no doubt she was irate when she


confronted the appellant with her daughter's story but accepted her
evidence as true.

The appellant was represented by counsel in' the Court below. There was
no objection to this evidence when it was adduced. Rukeijakare was not
cross-examined on this evidence. The appellant in his evidence denied
generally that the evidence of Rukeijakare was true. Rukeijakare testified
in detail including the fact that her daughter Asiimwe told her that she
did not know her assailant and had to beat her to elicit the story of her
sexual attack. She does not appear to have been anxious to implicate
anybody. In the circumstances we hold that the admission of the
appellant to Rukeijakare amounted to sufficient corroboration of the
evidence of both Asiimwe and Kembabazi that Asiimwe was sexually
abused. We are satisfied that the failure to hold a voir dire in respect of

. Kembabazi did not occasion a failure of justice and accordingly both
ground 2 and 3 must fail.

In ground 5 the appellant complained that the learned trial Judge erred in
law in failing to comply with requirements regarding summing up to the
assessors. Mr. Lubwa referred to Section 81 of the Trial on Indictments
Decree, 1971 which provides in subsection (1) thereof as follows:-

"When the case on both sides is closed, the Judge shall
sum up the law and the evidence in the case to the
assessors and shall require each of the assessors to state
his opinion orally and shall record each such opinion.
The Judge shall take a note of his summing up to the
assessors. "


Learned Counsel submitted that there was no direction to the assessors
as to the need for corroboration in sexual offenses.

We think this ground of appeal is unhappily worded. The record
indicates that the Learned trial Judge did sum up to the assessors and
made notes as required under the law. There is, however, some merit in
the complaint that the learned trial Judge appears not to have directed the
assessors in his summing up on the issue of corroboration in sexual
matters nor does he refer to this matter in his judgment but for the
reasons already appearing in this judgment we find that there was no
miscarriage of justice as a result of the omission. Ground 5 must
therefore fail.

In ground 4 the appellant complained that his alibi was not properly dealt
with. We find no substance in this ground. We already referred to the
learned trial Judge's finding on this issue which on the evidence we are
unable to fault.

Ground I and 6 are really different aspects of the same point relating to
insufficiency of the evidence to sustain the conviction. We find that the
learned trial Judge properly weighed the evidence before him came to the
correct decision subject to our remarks regarding corroboration in sexual
matters. Accordingly the appeal against conviction is dismissed.

The appeal against the sentence of corporal punishment is, quite rightly
in our view, conceded by Mr. Okwanga, Counsel for the respondent.
Section 123 (1) of the Penal Code does not provide for any corporal



punishment. We dealt with this matter in detail in the recent cases of
Jackson Zita v. Uganda Criminal Appeal 19 of 1995 and Bimbi Peter v.
Uganda Criminal Appeal 33/94 both 'unreported'.

We accordingly allow the appeal against the sentence of six strokes of the
cane and set it aside.

Dated at Mengo this .... 18th ... day of ... July .. .l997.








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