THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA
HOLDEN AT KAMPALA
CORAM: HON. L.E.M. MUKASAKIKONYOGO, DCJ
HON. G.M. OKELLO, JA.
HON. A. TWINOMUJUNI, JA.
CRIMINAL APPEAL NO. 70 OF 1999
1. CPL KASIRYE HAMUZA
2. MUSINGO PETER
3. NULU KONDE WAISWA :::::::::::::::::::::::::::::::::::::::: APPELLANTS
4. NDOLERIRE FRED
5. SGT. DENIS KULE
UGANDA :::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
(Appeal from the decision of the High court (Onega, J)
at Jinja dated 11th day of June 1999 in Criminal Session
case No. 455 of 1997,)
JUDGMENT OF THE COURT
planned robbery site and to supply the necessary information regarding the viability of the mission.
The memorandum of appeal for appellants No. 2, 3 and 4 contained 4 grounds as follows, ground 4 and 6 having been dropped.
2. the learned trial Judge erred in law and fact to hold that Fred Ndolerire’s extra-judicial statement was obtained voluntarily,
3. the learned trial Judge misapplied the principles of the doctrine of common intention in this case,
(a) that the learned trial Judge failed in fact and in law to uphold a defence of duress/compulsion put forward by the appellant and thus came to a wrong conclusion,
(b) the learned trial Judge failed both in fact and in law to hold that the prosecution had not proved beyond reasonable doubt the ingredients for each and every robbery or for each and every count/charge, and
(c) the learned trial judge failed in fact and in law to properly evaluate evidence (in general) for each count/charge.
For the 5th appellant, the memorandum contains four grounds which were couched as follows:
1. the learned trial Judge erred in law and fact in admitting and relying on the accomplice evidence of Al (Kasirye Hamuza) to convict the appellant,
2. the learned trial Judge erred in Law and fact by finding that the appellant had been correctly identified at the scenes of crimes,
3. the learned trial Judge erred in law and fact in rejecting the appellant’s defence of alibi,
4. the trial Judge erred in law and in fact when he failed to properly evaluate the evidence adduced at the trial hence reached erroneous decisions.
On ground 1, for the 2nd, 3rd and 4th appellants, the complaint was firstly about the admission in evidence of the extra-judicial statements made by Kasirye, Musingo and Ndolerire and using them against the makers and their co-accused.
Mr. Tayebwa, learned counsel for the 2nd, 3rd and 4th appellants, contended that statement made by an accused is not evidence against a co-accused unless he adopts it and thereby makes it his own. He cited Archbold Criminal Pleading, Evidence &Practice 39th Edition Paragraph 1395 as authority for that proposition. He argued that on the above principle, since the co-accused did not adopt the extra-judicial statements made by the named appellants, the statements should not have been used against their co-accused.
On the other hand, Ms. D. Lwanga, Principal State Attorney who appeared for the state, contended that the extra-judicial statements could be used against the co-accused on the strength of section 28 of the Evidence Act. She also cited Festo Androa Asenua and Anor Vs
Uganda Criminal Appeal No. 1 of 1998 Supreme court (unreported) as another authority for her proposition. She submitted that the trial Judge was; therefore, right to have taken these statements into consideration against the co-accused.
The question whether a statement made by an accused may be used 15 against a co-accused was considered by the Supreme Court in the case of Mohamed Mukasa and Anor Vs Uganda, Criminal Appeal No. 27 of 1995 (SC) unreported and stated thus:
“... if the accused makes a full confession and tars himself with the same brush and the statement is sufficient by itself to justify the conviction of the maker of the offence for which he is being tried jointly with the other accused, the statement may be taken into consideration or as evidence against the co-accused.”
Interpretation given to section 28 of the Evidence Act which reads:-
“When more persons than one are being tried jointly for the same offence, and a confession made by one Of such persons affecting himself and some other of such persons is proved, the court may take ‘into consideration such confession as against such other person as well as against the person who makes such confession.
Explanation:- ‘Offence’ as used in this section, includes the abatement of or attempt to commit the crime.”
The view held by the Supreme Court in Festo Androa Asenua and Anor (supra) is the same with its earlier view in Mohamed Mukasa and Anor (Supra). That states the position of the law in this country regarding use of a statement of an accused against a co-accused.
In the instant case, the extra-judicial statements made by Kasirye and Masingo do not amount to full confessions. They, therefore, cannot be used against their co-accused. The extra-judicial statement of Ndolerire Fred, however, amounts to a full confession which could alone justify his conviction of the offence he was jointly tried with others. The trial Judge, therefore, rightly used that statement against the co-accused.
On the submission that the extra-judicial statements needed corroboration but lacked it, Ms Lwanga responded that these statements could supplement other substantial evidence in terms of the principle enunciated in Ezera Kyabanamaizi and other vs R (1962) EA 309 at 311.
In that case, the former court of Appeal for Cast Africa stated that a comment made by an accused not on oath is not accomplice evidence because it was not made on oath. It can be used against a co-accused in terms of section 28 of the Evidence Ordnance to supplement an otherwise substantial case against him. It could never be the basis for a conviction
As stated earlier in this judgment, the extra-judicial statement of Ndolerire which amounts to a full confession was rightly used against his co-accused to supplement other substantial evidence. We thus find no merit in this ground and it fails.
Ground 2 complains about the admission in evidence of the extra-judicial statement of Ndolerire. Mr. Tayebwa criticised the trial Judge for admitting the statement in evidence because it was not voluntary. His reason was firstly that Ndolerire was escorted to the recording Magistrate by the police officer who had earlier tortured him and that on the way to the Magistrate, the police officer warned the appellant that if he ever changed his statement from the earlier one, he would be taken to the police station and would be dealt with. Secondly that while the Magistrate was recording the appellant’s statement, a police man stood from outside pointing a threatening gun at the appellant. He submitted that these factors had the effect of keeping the fear operating in the mind of the appellant during the recording of his extra-judicial statement despite the caution administered to him by the Magistrate.
Ms. Lwanga did not agree with those submissions. She stated that Ndolerire was not escorted to the recording Magistrate by the policeman who had earlier tortured him. Even if it were so, the Magistrate had cautioned the appellant before recording his statement which should clear out any fear that the appellant could have had. She rejected the claim that a policeman stood from outside the Magistrate’s chamber and kept pointing a threatening gun at the appellant when his statement was being recorded as false. She reasoned that the evidence of the recording Magistrate (PW7) ruled out the possibility of a person standing from outside his chamber seeing anyone seated in his chamber due to the position of the windows.
The trial Judge held a trial within a trial to determine the voluntariness of this extra-judicial statement. The same reasons for stating that the statement was not voluntary were advanced before him. He considered and rejected them. On whether a policeman stood outside the Magistrate’s chamber and pointed a threatening gun at the appellant while he was recording the appellant’s statement, the trial Judge believed the evidence of the Magistrate. He also held that any threat which might have been issued to the appellant before was cleared out by the caution administered to him by the Magistrate before recording the appellant’s statement. We agree. The Magistrate’s evidence on an alleged policeman standing outside his chambers and pointing a gun at the appellant while he was recording his statement went as follows
“I can’t tell whether security outside was stepped up on that day the suspects were brought. There is no possibility of any person sitting or standing outside any chambers and looking at the suspects with threatening eyes. (sic) The angle could be very small and the window is on a side where people do not pass.”
Clearly, there was no way the appellant could have seen a policeman standing outside the Magistrate’s chambers pointing a gun at the appellant while his statement was being recorded. That claim cannot be true. As for the alleged earlier threats, we think that, the caution administered to the appellant by the Magistrate before recording the appellant’s statement effectively removed them. We are, therefore, satisfied that the extra- judicial statement was voluntary and was rightly admitted in evidence. This ground too has no merit and it fails.
On the other hand Ms. Lwanga submitted that the trial Judge correctly applied the principles of common intention. Appellant No. 3 and 4 were equally guilty of the robberies on Kamuli-Buttongo road on the principle of transferred malice. She argued that the mission was to rob. It was immaterial that the robbery did not take place at the Coffee Factory but elsewhere.
There is no dispute that appellant Nos. 3 and 4 were part of the planned robbery which aborted. The question now is whether they could be liable for the subsequent robberies which resulted into the murder of Mudooba Paul when they were not part of the decision to carry out those robberies.
It is well established that if a man by mistake causes injuries to a person or property other than the person or property which he intended to attack, he is guilty of a crime of the same degree as if he had achieved his object provided that the harm done is of the same kind as the one intended. See Archbold Pleadings, Evidence & Practice 40th Edition Paragraph 1439 (iv). Black Law Dictionary Sixth Edition pane 1498 also expresses the same view.
We are, therefore, satisfied that the trial Judge properly applied the principles of common intention. This ground also fails.
Ground 6 is about identification of appellant No.2 at the scene of crime. Mr. Tayebwa criticised the trial Judge for finding that the appellant was is properly identified by PWI and PW2. Learned counsel submitted that the conditions favouring correct identification did not exist. He argued that these witnesses were victims of the robbery and that PWI admitted that he was scared. He submitted that that fear impaired the witness’s ability to properly observe and it was wrong for the trial Judge to rely on that evidence of identification.
For the respondent, Ms. Lwanga submitted that the conditions favouring correct identification existed. Firstly, the incident happened during a broad daytime and lasted for between 3 and 5 minutes. Secondly, PW2 knew the appellant No.2 before as he had trained with him as policemen and lived in the same police barracks. Though PWI stated that he was scared, that did not necessarily greatly impair his vision.
The former Court of Appeal of Uganda (now Supreme Court) did spell out in the case of Abdalla Nabulere and 2 others Vs Uganda, Criminal appeal No.9 of 1978 (CA) unreported which is often quoted in this connection, what factors to be considered to test the quality of 5 identification.
(2) distance between the witness and the accused,
(3) type of light available and,
(4) familiarity of the witness with the accused.
In the instant case, PWI and PW2 identified appellant No.2 at different scenes of crime on the same day during a broad daytime. PW1 described the appellant as the person who had a pistol and was the very person who ordered the driver to get out of the motor vehicle. He was the person who ordered the witness to remove his wristwatch. He was also the person who took from the witness’s pocket cash of Shs. 65,000/= PW1 stated that the operation lasted for 3 minutes.
As for the appellant No.1, the gist of his main complaint in ground (a) was that the trial Judge erred in rejecting the appellant’s defence of compulsion. Mr. Edward Muguluma Ddamulira, learned counsel for the first appellant, conceded that from the on set up to the site of the planned robbery which aborted, the appellant was part and parcel of the plan to rob. He argued that thereafter, the appellant was compelled to drive to the sites of the subsequent robberies. When his client was told to drive to Kamuli-Buttongo Road, he was not aware of what was going to be done there. Along Kamuli/ Buttongo Road, the appellant was ordered at gunpoint by appellant No. 2 to drive wherever he was told. Appellant No. 1 escaped at the earliest opportunity he got when their vehicle overturned.
We agree, therefore, that the defence of compulsion is not available to appellant No.1. This ground accordingly fails.
On ground (b) the complaint was that an essential ingredient of the offences charged in counts iii, iv, and v had not been proved and that it was wrong for the trial Judge to enter conviction for those offences. Mr. Muguluma submitted that no evidence was led to prove theft as an
essential ingredient of the offence of robbery charged in those counts.
Ms. Lwanga conceded this complaint and stated that the convictions in those counts were improper.
Ground (c) complains that the trial Judge did not properly evaluate the evidence on record and therefore, came to a wrong conclusion that appellant No.1 was at the scene of crime voluntarily. This ground is re5 stating in a roundabout way that the trial Judge erred in rejecting the
appellant’s defence of compulsion. We have sufficiently dealt with that defence in ground (a). We shall not repeat it here. We only repeat our finding in ground (a).
The complaint of the 5th appellant on ground I was that the trial Judge erred in admitting and relying on the accomplice evidence of Al to convict the appellant when there was no other corroborative evidence. Mr. Kunya, learned counsel for the 5th appellant, pointed out that Al’s testimony that Bwambale fired shots in the air could not fit the description of the 5th appellant. He contended that even the evidence of identification of the 5th appellant by PWI and PW2 was doubtful since the witnesses conceded that they had no prior knowledge of the appellant. He argued that in that circumstance, it was necessary to conduct an identification parade for the witnesses to confirm their identification of the appellant but that this was not done. He submitted that the evidence of identification was even weakened as the conditions under which the identification was allegedly made were poor. He criticised the trial Judge for finding that those witnesses were truthful without analysing the question of fear admitted by PW2 and lack of prior knowledge of the appellant by the witnesses. He cited Cpl Wasswa and Ninsiima Dan Vs Uganda, Criminal Appeal No. 49 of 1999 (SC) unreported to support his proposition for the need of identification parade.
PW2 as he blocked the witness from getting out of the vehicle. Ms Lwanga submitted that identification parade was not necessary in this case because this case differs from Wasswa & Ninsiima (supra) on their facts.
We scrutinised the evidence of identification of the 5th appellant by PWI and PW2 as it is our duty as a first appellate court so to do. The witnesses identified the appellant at different scenes but both described him as the person who had a rifle and the most atrocious. Although PWI claimed that he had known the appellant before, he did not specify how, when and where he had known the appellant. Nevertheless, in the course of the incident which lasted for between 3 and 5 minutes in a broad daytime, the appellant came close to PW2 when he leaned against the door of the vehicle as the witness tried to get out of it. He demanded for money from the witness and took from him Shs. 62,000/=. He was also the person who peeped into the vehicle and exclaimed that “the man is dead” referring to the witness’s brother.
The main complaint in grounds 3 and 4 was that the trial Judge accepted wholesale the prosecution case and rejected the appellant’s alibi without giving it judicious Consideration. We find no merit in this complaint. The accomplice evidence of Al put the appellant at the scenes of crime. That evidence was amply corroborated by the clear evidence of identification by PWI and PW2. As seen above, the evidence of identification was thorough. The witnesses described clearly the parts played by the appellant in the commission of the offence. That ruled out the alibi put by the appellant.
When we pointed out to Ms. Lwanga the lack of clear evidence as to how the deceased met his death, she conceded that there was not clear evidence as to who shot the deceased. She submitted that the conviction of the 5th appellant on that count I was not proper.
Dated at Kampala this 28th day of August 2001.
DEPUTY CHIEF JUSTICE
JUSTICE OF APPEAL
JUSTICE OF APPEAL