Kabuye Senvewo v Uganda [2005] UGSC 23 (1 November 2005)

IN THE UGSC AT MENGO   CORAM: ODOKI, CJ; TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA JJ.S.C. CRIMINAL APPEAL NO. 2 OF 2002 BETWEEN KABUYE SENVEWO:::::::::::::::::::::::::::::::::::::::::::::APPELLANT AND UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT (Appeal from judgment of the Court of Appeal (Mukasa - Kikonyogo DCJ; Engwau, Byamugisha, JJ.A) at Kampala in Criminal Appeal No.26/02 dated 16.4.04)   JUDGMENT OF THE COURT.   The High Court of Uganda (Mwangusya J.) sitting at Masaka on 8 November 2002 convicted the appellant for manslaughter and rape of Nakanwagi Agnes, the deceased, sentenced him to imprisonment for 8 and 10 years respectively, and ordered that the sentences shall run concurrently. On 16 April 2004, the Court of Appeal dismissed the appellant's appeal against both conviction and sentence; hence this second appeal to this Court also against both conviction and sentence. The facts on which the appellant's conviction was based are brief. The deceased, a married woman, was a hawker of second hand clothes, and the appellant, an Assistant Bank Manager of Masaka branch of the Uganda Commercial Bank was her customer along with other bank staff. On 21st August 2001, at about 4.30 p.m., the deceased went to the bank. Outside the bank, Harriet Iga, an office attendant who had earlier bought clothes on credit paid her debt and informed the deceased that the appellant whom she wanted for the same purpose, was inside the bank. The deceased decided to wait for him outside his residential flat on top of the bank. She stayed chatting with Matovu Matiya who was painting the flat. Subsequently, the appellant came out of the bank and together with the deceased entered the flat and locked the door. The two stayed inside the flat alone until 8.30 p.m., when the appellant called for medical help because the deceased was in bad condition. Three doctors turned up at the flat and found the deceased on the appellant's bed. She was dressed in only a half-slip and stripped shorts. She was gasping for breath, and in coma. Blood stained froth was coming from her mouth and nostrils. Because of her critical condition the doctors rushed her to hospital where efforts to resuscitate her failed. She died at 9.20 p.m. Dr. Sewankambo, DW2, issued a certificate stating the cause of death to be cerebral vascular accident. Subsequently, however. Dr. Kibuka Musoke, PW4, who carried out a post-mortem examination, found external and internal injuries on the deceased's body and certified the cause of death to be shock resulting from severe bleeding of internal organs. The police arrested the appellant on a charge of murder. In his charge and caution statement to the police, the appellant stated that he had dealt with the deceased for two years when she used to sell secondhand clothes to him, sometimes on credit; and that during that period they developed a love relationship and got to know each other intimately. Through that intimacy, he learnt from the deceased that she had had two accidents from which she sustained body pains. In the first accident she was squeezed between two motor vehicles and in the second she fell down and hit her chest against a chair. According to him, up to the time of her death she was still undergoing treatment for the body pains. He said that on the fateful day, after entering the flat with the deceased, they first discussed purchase of clothing for his children and then agreed to have sexual intercourse. They had an uneventful first round. However, when they resumed the intercourse after an interval, the deceased started breathing very fast. He asked her what was wrong, but she did not respond and when he saw froth forming at her mouth he stopped sex. He cleaned her mouth with a wet face towel whereupon he noticed what appeared to be blood in the froth. He was alarmed and called for medical help. At his trial, he was indicted for murder and rape. On the charge of murder, the trial court found that the prosecution had proved, through circumstantial evidence, that the appellant unlawfully killed the deceased, but had failed to prove that he did so with malice aforethought, hence the conviction for manslaughter. The court, however, held that the charge of rape was proved beyond reasonable doubt. The Court of Appeal upheld both convictions. The appeal to this Court is on four grounds drawn in argumentative form contrary to rule 81 of the Supreme Court Rules. In essence, however, the or after death as surmised by counsel for the appellant. Nor could they have been sustained during earlier accidents as suggested by the appellant because her husband and her son testified that she was never involved in any accident. It appears to us that the criticism of the Court of Appeal by learned counsel for the appellant was misconceived and/or made out of context. In its judgment, the Court of Appeal reviewed all the circumstantial evidence adduced at the trial and concluded that it irresistibly pointed to the appellant as the person who inflicted the injuries that caused the death of the deceased. It based the conclusion on what it referred to as three "factors"; which in summary were that - 1. Dr. Sewankambo's examination of the deceased was casual and hurried, and his certificate as to the cause of death was reliant on the history given by the appellant that the deceased had had a fit; 2. The appellant's claim that the deceased had had two accidents was false as it was negated by the testimony of her next of kin who would have known if she had been involved in such accidents; 3. An expert witness is supposed to provide scientific criteria on which his conclusion is based, and if the expert evidence is not satisfactory or different experts give different criteria, the court can rely on other evidence. After outlining those "factors", the court made the observation that 'the medical evidence tended to lean towards the theory that was advanced by the appellant that the deceased was involved in accidents'. We appreciate that if one takes that part of the judgment in isolation, as counsel for the appellant did, the said criticisms by counsel would carry weight. First, the first two grounds, which relate to the conviction for manslaughter, are that the Court of Appeal erred - • in upholding the trial court finding, on wrong grounds, that the appellant inflicted the injuries that caused death; and • in failing to evaluate evidence, which supported the appellant's case.   Mr. Ayigihugu, learned counsel for the appellant, argued the two grounds together. He submitted that there was no proof that the appellant inflicted the injuries that caused the death of the deceased, and criticized the reasons relied on by the Court of Appeal to hold that the evidence irresistibly pointed to the appellant as the one who inflicted the fatal injuries. He stressed that two doctors who saw the deceased at the flat testified that she had no injuries on her and he contended that this meant that the injuries found on her during the post-mortem examination were inflicted after she was removed from the flat. He also criticized the Court of Appeal for failing to evaluate that testimony, and give to the appellant the benefit of doubt despite its finding that- "The medical evidence tended to lean towards the theory that was advanced by the appellant that the deceased was involved in accidents." In reply, Mr. Okwonga, Ag. Senior Principal State Attorney, submitted that the circumstantial evidence proved beyond reasonable doubt that the appellant inflicted the fatal injuries on the deceased while they were inside the flat. He argued that the deceased had entered the flat in apparent good health, stayed inside the flat with the appellant alone, and eventually came out with the fatal injuries. The injuries were inflicted while the deceased was still alive and could not have been sustained during the resuscitation efforts said "factors" tend to suggest that the court reached the conclusion of the appellant's guilt only because his theory was disbelieved. Secondly, the said observation gives a misleading impression that the cause of death was in doubt. However, the court did not stop there. The rest of the judgment clearly shows that the court outlined the said factors in the course of evaluating the evidence, and not as the only reasons for concluding that the appellant inflicted the injuries on the deceased. On the other hand, we think that the observation that the medical evidence leaned towards the appellant's theory, was an over-statement, which unnecessarily but inevitably attracted the criticism by learned counsel for the appellant. There are two sets of medical evidence. The first set comprises the evidence of Dr. Kibuka Musoke, the pathologist who carried out the autopsy. The second set comprises the evidence of Dr. Mulokola and Dr. Sewankambo, the two doctors who saw the deceased at the flat and participated in efforts to resuscitate her before she died. The former set did not lean towards the appellant's theory but rather destroyed it. Even the latter set did not lean towards the theory in any positive or direct sense. The most support that the appellant can draw from the testimony of the two witnesses is that they did not observe any injuries on the deceased. Their testimony did not 'lean' towards the theory as to previous accidents let alone as to the cause of death. Nor indeed were the two witnesses categorical about their opinion on the cause of death. PW 10 a gynecologist, whose apparent primary role was to check if the deceased was pregnant, testified that after she died he asked the colleagues to examine her, and he added - "We did not find any sign of injury. Kabuye had told us the deceased had had an accident a month or so before During our interview with the accused he had told us the deceased had a fit (convulsions). So in our conclusion we had indicated on the death certificate that the cause of death could have been cerebral vascular accident. This conclusion was reached given the frothy discharge, history of fits and previous history of an accident. We recommended a post mortem by a trained pathologist " DW 2, the signatory of the death certificate, testified inter alia, that they did the clinical assessment during the resuscitation efforts, and went on to say -"I based medical certificate of cause of death on history given by Mr. Kabuye and a rough clinical assessment. I did not do a thorough examination we recommended post mortem to ascertain cause of death." These excerpts from the two witnesses' own testimonies, clearly raise doubt on the examination undertaken by them, and in particular discredit their opinion as to the cause of death. We think therefore, that it was inaccurate to consider their opinion on the cause of death as expert evidence in conflict with the expert opinion of PW 4. Despite that inaccuracy, however, we are satisfied that the Court of Appeal evaluated the circumstantial evidence as a whole, and that its observation that medical evidence leaned towards the appellant's theory, was not made as a definitive finding, but in the process of that evaluation. In that process, the court unequivocally found that the evidence appearing to lean towards the appellant's theory was not credible and disbelieved it. The court therefore, was not left in any doubt in respect of which it could have given benefit to the appellant. This is evident in the following excerpt from the court's judgment - "Counsel for the appellant in his submissions stated that the deceased had no injuries at all before she died. He was referring to the evidence of Drs. Sewankambo and Daniel Mulokola (PW. 10). This witness (Mulokola) testified that he and his colleagues examined the deceased and saw no injuries fresh or old. With respect, this witness was being economical with the truth because his colleague PW 4 found injuries on the deceased both external and internal although he did not state the age of those injuries. His evidence that the internal injuries caused a rupture of the spleen and laceration of the liver, which are vulnerable parts of the body, and that the deceased could not have lived with those injuries for long, in our view, destroyed the defence theory that the deceased had been living with those injuries.... we think that the trial Judge reached the right conclusion (that the deceased's death) was caused by the injuries inflicted on her by the appellant. The circumstantial evidence is such that it produced moral certainty beyond reasonable doubt that it is the appellant who committed the offence. In our view, there are no co-existins circumstances that would destroy the inference of guilt.. "_(Emphasis is added) We agree with the Court of Appeal that the circumstantial evidence leads to the irresistible inference that the deceased sustained the fatal injuries while she was with the appellant in his flat and that only the appellant could have inflicted the injuries. The evidence does not support the theory that the deceased went to the flat with the injuries. PW 4, the pathologist, did not ascertain how old the internal injuries were, but he was categorical that - "A person cannot live with a ruptured spleen and a lacerated liver for long. It would be a question of hours." Although he said that the subdural haematoma could have been sustained in an accident some months before, we find no evidence from which to infer that the injuries might have been sustained at different times, particularly having regard to the pattern of the injuries, namely bruises on the chin, chest wall and abdomen on the exterior and subdural haematoma, rupture of the spleen and laceration of the liver, internally. Furthermore, we think that the suggestion by learned counsel for the appellant that the injuries found on the deceased during the post mortem examination could have been inflicted after she left the flat is farfetched. In the first place, the pathologist, PW 4, testified that the deceased sustained the injuries while she was alive, and that resuscitation could not cause any of the injuries he found. Secondly, the suggestion was not put to any of the medical witnesses who attended to her throughout, from the time they found her at the flat till she died. What is more, the suggestion is inconsistent with the appellant's charge and caution statement that he adopted as his defence at the trial, in which he implicitly said that the cause of death was before or during the sexual intercourse. We also uphold the rejection of that defence and for the reasons we have outlined reject grounds 1 and 2. In the third ground of appeal the appellant complains that the Court of Appeal confirmed the conviction of rape on speculation, and that it failed to consider the legal implication of the charge and caution statement, which was produced in evidence by the prosecution. Mr. Ayigihugu submitted that it was erroneous on the part of the Court of Appeal to accept the appellant's statement that he had sexual intercourse with the deceased, and yet reject his assertion that it was with her consent, merely on the speculation that he failed to persuade her. He stressed that the only evidence that the appellant had had sexual intercourse with the deceased was his said statement to the police. Mr. Okwonga submitted that the appellant's statement, coupled with the medical evidence of injuries found on the deceased, including a cut on the labia majora, was sufficient evidence that the sexual intercourse was not consensual but forceful. On this issue the Court of Appeal agreed with the trial court that the external and internal injuries found on the deceased and her torn knickers found in her handbag at the flat, proved that the sexual intercourse was forceful. It opined that because the police did not promptly visit the scene, the appellant re-arranged the bed where they had sex and erased incriminating evidence thereon. It went on to say - "Like the trial judge rightly stated, the injuries both internal and external spoke volumes of what happened in the flat. Although Dr. Kibuka-Musoke found a small cut wound on the labia majora which he claimed might have been caused by a general ulcer decease that alone is insufficient in our view to rule out forceful sexual intercourse There is no reasonable explanation of how the deceased could have received such fatal injuries especially the rupture of the spleen if she had consented One factor, which did come (not) out during the trial but that was mentioned during the sentencing process, was that the appellant has been an aids patient for the last 15 or so years. The deceased was a married woman. The possibility that he might have failed to persuade her to have consensual sex cannot be ruled out - thus (sic) the use of force." With the greatest respect to the Court of Appeal, we find that in this part of its judgment it erred on several aspects. First, Dr. Kibuka-Musoke did not simply "claim", but in cross-examination was explicit that the cause of the cut wound he found on the labia majora was due to a genital ulcer disease, rather than violent sexual intercourse. Secondly, it is apparent that the court indirectly shifted the onus of proof to the defence where it observed that forceful sexual intercourse and failure of the appellant to persuade the deceased to consent were not ruled out. The onus was on the prosecution to adduce evidence that would rule out possibility of consent. Thirdly, we think that the court also erred in speculating that because the appellant was an aids patient he failed to persuade the deceased to have sex with him. There was no iota of evidence on her knowledge of his affliction or attitude towards it. The only evidence from which the court could lawfully deduce that the appellant used violence on the deceased, and on which the trial court mostly relied, was that the deceased sustained injuries. There is, however, a lack of nexus between those injuries and sexual intercourse. True they may have been inflicted in the course of forcing her to have sex. Equally they may have been inflicted in an assault unrelated to sex. We do not find any weight in the evidence of a torn knickers found in the handbag as no attempt was made to describe the nature of the tear. Much as the circumstantial evidence raises strong suspicion that the sexual intercourse was not consensual as asserted by the appellant, we are unable in the circumstances to say that it leads to only one irresistible inference that the sexual intercourse was through force. Therefore, ground 3 succeeds.   In the last ground of appeal the appellant complains that the Court of Appeal erred in upholding the sentence, which the trial court imposed without taking the period spent on remand into consideration. Counsel for the appellant argued that the constitutional requirement to take such period into consideration is mandatory and must be complied with irrespective of the length of the period. In reply, counsel for the respondent submitted that the Court of Appeal had taken the remand period into consideration and thereby cured the irregularity. The appellant spent less than two months on remand before his trial. The appeal against sentence in the Court of Appeal was on the ground that the sentences were harsh. On its own initiative, the Court of Appeal observed that Article 23(8) of the Constitution enjoins a trial court, when sentencing, to take the period spent on remand into consideration, and noted that the trial court in the instant case had omitted to do so, but that the omission was not criticized. The court then went on to say - "The omission to take into account the period that the appellant spent on remand in our view did not occasion any miscarriage of justice. The sentences imposed, were within the range of similar sentences that this Court and the Supreme Court have imposed from time to time for offences of this nature." Undoubtedly, the Court of Appeal regarded the said omission to be an error, which it ought to rectify. However, upon considering the period that the appellant spent on remand it concluded that the sentences imposed by the trial court were just. We are unable to fault that. The constitutional requirement ranks the period spent on remand among the several factors to be weighed in assessing the term of imprisonment to impose on a person convicted of a criminal offence. It must not be construed as a provision of a formula of discounting the sentence. This ground also fails. In the result, we allow the appeal partially. We quash the conviction of rape and set aside the sentence of 10 years imprisonment. We dismiss the appeal against conviction for manslaughter and confirm the sentence of 8 years imprisonment. DATED at Mengo this 1st day of November 2005.   B.J. Odoki Chief Justice, J.W.N. Tsekooko, Justice of Supreme Court A.N. Karokora Justice of Supreme Court   J.N. Mulenga Justice of Supreme Court   G.W. Kanyeihamba Justice of Supreme Court.