Omiat Joseph v Uganda (Criminal Appeal 141 of 1999) [2001] UGCA 5 (26 February 2001);
Criminal law, Evidence Law, Evaluation of Evidence
THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA
AT KAMPALA
CRIMINAL APPEAL NO. 141 OF 1999
CORAM: HON. MR. JUSTICE C.M. KATO, JA.
HON. MR. JUSTICE S.G. ENGWAU, JA
HON. LADY JUSTICE C.N.B. KITUMBA, JA
OMIAT JOSEPH:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT
VERSUS
UGANDA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
[Appeal from a conviction and sentence
of the High Court at Soroti
by Mr. Justice Kania dated 18/11/99
in Criminal Session case No. 20 of 1999]
JUDGMENT OF THE COURT:
The appellant was arrested and taken to Soroti Central Police Station. On 6/12/1995 DIP Eric Opus, PW2, recorded a charge and caution statement to from the appellant in Ateso, Exhibit P1. Later he translated the same into English, Exhibit P.2. In that statement, the appellant made a confession admitting taking part in the three murders. During the trial, the appellant objected to the admissibility in evidence of the statement on the ground that he did not make it. The learned trial Judge admitted the statement in evidence after holding a trial within a trial.
There are two grounds of appeal namely: -
1. “That the trial Judge erred in accepting a retracted and repudiated statement of the appellant that had not been read over to him before the appellant is alleged to have thumb printed the same.
2. In view of the denial by the appellant that he thumb printed the retracted and repudiated statement the trial Judge ought to have held that it was the duty of the prosecution to prove by expert evidence that the thumb print was that of the appellant. Since the prosecution failed to discharge that duty the trial Judge ought to have held in favour of the appellant to disregard the alleged statement of the appellant.”
Mr. Sengooba, learned counsel for the appellant, contended that the charge and caution statement was not made by the appellant because it was not read back to him. The thumb print affixed thereto was not that of the appellant.
Counsel submitted that the trial Judge was wrong to find that the omission by PW2 to indicate on the statements exhibits P1 and P2 that they had been read over to the appellant was a mere irregularity.
In reply Mr. Elem-Ogwal, learned Principal State Attorney, supported the conviction and sentence. He submitted that PW2 read the statement back to the appellant as he testified but only omitted to indicate on the statement Exhibit P1 that he had done so. He argued that the learned trial Judge who had the opportunity to observe PW2 and the appellant during the trial rightly concluded that PW2 was a credible witness. He dismissed the argument by counsel for the appellant that PW2 was an erratic witness, as in his view, such a witness could not record the detailed statement, Exhibit P1 unless he was an insider.
In his judgment the learned trial Judge found that the only evidence implicating the appellant was his retracted or repudiated confession. The learned trial Judge directed himself on the law relating to repudiated and retracted confession and relied on Tuwamoi v Uganda (1967) E.A 84.
Before we take leave of this appeal, we have observed that the ruling of the learned trial Judge in respect of a trial within a trial is missing from the record of proceedings. The learned trial Judge according the record must have ruled in favour of the prosecution, otherwise the confession would not have been admitted in evidence. The original Ateso version was tendered and marked exhibit P1, while the English translation was marked exhibit P2. This omission in our view does not prejudice the defence case. We find no merit in this appeal. It is accordingly dismissed.
Dated at Kampala 27th day of February 2001.
C.M. KATO, JA.
JUSTICE OF APPEAL.
S.G. ENGWAU, JA
JUSTICE OF APPEAL.
C.N.B. KITUMBA, JA.
JUSTICE OF APPEAL.