THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT LIRA
CRIMINAL APPEAL NO. 0653 OF 2015
(Appeal from the decision of the High Court of Uganda at Lira before Nabisinde, J. delivered on the 13hday of October, 2014 in Criminal Session Case No. 0080 of 2012.)
CORAM: HON. LADY JUSTICE ELIZABETH MUSOKE, JA.
HON. LADY JUSTICE HELLEN OBURA, JA.
HON. MR. JUSTICE REMMY KASULE, AG. JA.
On 13th October, 2014, the High Court (Nabisinde, J.) convicted the appellant of the offence of Aggravated Defilement contrary to Section 129 (3) and (4) (a) of the Penal Code Act, Cap. 120. On the same day, the appellant was sentenced to a term of imprisonment of 20 years upon that conviction. The trial Court's decision followed the trial of the appellant on an indictment which alleged that he had, on the 2nd day of April, 2012 (the material date) at Ayom Apwono Village in Oyam District had unlawful sexual performance with E.F (the victim) a girl under the age of 14 years. The victim was 11 years old.
The victim was taken to the trial Court, but did not testify as she was incapacitated both physically and mentally, and was unable to sit up, move or speak. The prosecution evidence which was accepted by the learned trial Judge was given by other witnesses, including the father of the victim (PW3). PW3 testified that at about 7.30 p.m on the material date, when the victim returned home; she reported to him that the appellant had defiled her at his maize milling facility near Ayomapwono Village where the victim lived. PW3 stated that earlier on the material date, he had gone with the victim to the appellant's facility to grind maize. He had left her there and thereafter headed to a nearby town. PW3 stated that in her report the victim had stated that when he left her at the facility, the appellant served all the other persons
and deliberately made the victim to wait until about 7.30 p.m when he was left alone with the victim at the facility. The appellant had then defiled the victim.
On receiving the report from the victim, PW3 went with her to the home of the area local leader (PW4) in whose presence the victim also stated that the appellant had defiled her. The appellant was subsequently arrested. The victim was also subsequently taken for medical examination.
When testifying in his defence, the appellant denied the offence. He stated that he worked at the said maize milling facility on the material date, when the victim and PW3 came to use the facility. He helped them to grind their maize after which they left. The appellant also adduced the evidence of one of his clients, DW2 who used the facility on the material date. DW2 testified that on the material date, she had been to the maize milling facility to process her maize, and was present when the appellant closed it for the day. When he closed, the appellant had accompanied her (DW2) to her home, a considerable distance from the facility. DW2 also testified she knew that the victim was epileptic and prone to confusion. Notwithstanding the defence evidence, the learned trial Judge believed the prosecution evidence and convicted the appellant; thereafter sentencing him accordingly. The appellant now appeals to this Court on the following grounds:
"1. That the trial Judge erred in law and fact when she convicted the appellant on uncorroborated circumstantial evidence, thus occasioning a miscarriage of justice.
2. That the trial Judge erred when she failed to consider the strong evidence of the defence witnesses, thus coming to a wrong conclusion."
The respondent opposed the appeal.
At the hearing, Mr. Odongo Daniel, learned counsel appeared for the appellant on State Brief. Ms. Harriet Adubango, learned State Attorney in the Office of the Director Public Prosecution appeared for the respondent. The appellant was not physically present during the hearing, and could only follow the proceedings via video link from the Court to Lira Prison, where he was incarcerated. This was owing to the restrictions put in place ^y the Government to prevent the spread of the COVID-19 disease, including restrictions on movement of inmates from prison premises.
Counsel for either side proceeded by way of written submissions, and this Court has considered the same in this Judgment.
Counsel for the appellant faulted the learned trial Judge for convicting the appellant in reliance on the uncorroborated evidence of the victim's father (PW3) and the area local leader (PW4), who both alleged to have been told by the victim in an out of Court statement that the appellant had defiled her. Counsel pointed out that the victim did not, owing to incapacity, testify in the trial Court, and that the evidence of PW3 and PW4 constituted circumstantial hearsay evidence which ought to have been corroborated before being relied on by the trial Court to convict the appellant.
Relying on the authority of Bogere Charles vs. Uganda, Supreme Court Criminal Appeal No. 10 of 1996 where the Supreme Court held that before drawing an inference of the accused's guilt from circumstantial evidence, the Court must be sure that there are no other co-existing circumstances which would weaken or destroy the inference of guilt, counsel submitted that in the instant case, there existed circumstances which weakened or destroyed the inference of the appellant's guilt from the circumstantial evidence in that there was defence evidence to the effect that the victim was epileptic and would "talk anything and later gain her senses." In counsel's view, this meant that it was likely that the victim was confused when she identified the appellant as her assailant.
Counsel further relied on the authority of Ndyaguma David vs. Uganda, Court of Appeal Criminal Appeal No. 263 of 2006 where this Court articulated guiding principles regarding cases where the victim of a sexual offence does not testify in Court, as was the case in the instant case. Counsel argued that the Court had emphasized the need for corroboration in such cases, and that the Court could only convict on the hearsay testimony of PW3 and PW4 if the prosecution had brought a separate witness who saw the appellant defiling the victim.
Counsel submitted that the circumstances of this case were such that there was no independent evidence linking the appellant to the commission of the offence except for hearsay evidence; and it was not enough for the learned trial Judge to convict the appellant merely on the basis of the victim's poor physical state without warning herself or without finding corroborating evidence. Counsel prayed Court to resolve ground 1 in favor of the appellant.
Counsel contended that the learned trial Judge had ignored the defense evidence in convicting the appellant, something which caused a miscarriage of justice. Counsel submitted that the defense evidence was that the victim and her father PW3 had on the fateful date gone to the maize milling facility operated by the appellant but had both left and as such there was no opportunity for the appellant to commit the offence. Counsel further submitted that DW2 Abiata Susan had testified that on the material date, she had gone to use the appellant's maize milling facility and was present when the appellant closed up for the day. After the appellant closed up, he had accompanied DW2 to her home, which was a distance from the maize mill. DW2 also testified that she did not see the victim, who was well known to her at the said facility on that date. Counsel further submitted that the defense evidence was that the victim was epileptic, a fact which was confirmed by some prosecution witnesses. Counsel argued that in ignoring the above aspects, the learned trial Judge overlooked the weaknesses in the prosecution evidence which should have led to the appellant's acquittal.
Counsel for the respondent supported the learned trial Judge's decision and contended that the learned trial Judge had properly evaluated the evidence on record, especially the prosecution evidence, which was corroborated in all respects before arriving at the correct decision to convict the appellant.
Counsel submitted that while the victim did not testify at the trial, according to the evidence of PW3 and PW4, the victim had shortly after the incident, informed the said witnesses that the appellant had defiled her. Counsel submitted that the victim's testimony was confirmed upon her being medically examined as the report from the medical examination indicated that she was found with a freshly ruptured hymen and had injuries or inflammations on her private parts. Therefore, in counsel's view, the findings from the medical examination confirmed the victim's story and formed the bedrock of the circumstantial evidence in the case.
Counsel further submitted that although hearsay, the evidence of PW3 and PW4 was admissible, on the principles articulated in the authority of Badru Mwidu vs. Uganda, Court of Appeal Criminal Appeal No. 1 of 1997. In that case, the victim of defilement was not available at the trial as she had been taken out of the country for treatment. The victim had however, shortly after the incident reported the appellant to her mother as the person who had defiled her. The Court held that the mother's testimony in the Court about the report was not hearsay evidence. Counsel urged this Court to apply the principles articulated in the Badru Mwidu case (supra), and find that the evidence of PW3 and PW4 that the victim informed them that the appellant had defiled her was not hearsay.
Counsel further invited this Court to consider; a) the fact that the victim complained to PW3 and PW4 that she had been sexually assaulted which was found to be true; b) the fact that on the fateful day, PW3 had left the victim at the appellant's maize milling facility from where she was defiled; c) the fact that when she was taken to PW4, the victim repeated the same story that it was the appellant who had defiled her; as evidence which established the case against the appellant. Counsel prayed the Court to disallow ground 1 of the appeal.
Counsel submitted that the appellant's defense was a mere fabrication which did not in any way impeach the prosecution evidence; and prayed that this Court disallows ground 2 of the appeal as well.
Resolution of the Appeal.
We have carefully studied the Court record, considered the submissions for either side, and the law and authorities cited therein; and also considered the law and authorities, though not cited but applicable to the present case.
A first appeal from a decision of the High Court requires this Court to review the evidence and make its own inferences of law and fact. See: Rule 30 (1) (a) of the Judicature (Court of Appeal Rules) Directions S.113- 10. On a first appeal, this Court has a duty to "review the evidence of the case and to reconsider the materials before the trial judge. The appellate Court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it." See: Kifamunte Henry vs. Uganda, Supreme Court Criminal Appeal No. 10 of 1997. We shall proceed to carry out the duty referred to above in order to decide whether to allow the appeal and reverse the decision of the learned trial Judge or not.
We shall consider the two grounds of appeal jointly as they relate to the handling of the alleged hearsay evidence given by PW3 and PW4. Counsel for the appellant contends that the hearsay evidence should not have been relied on, while counsel for the respondent disagrees. We note that as pointed out by counsel for either side in their submissions, the victim in this case was unable to testify in the trial Court owing to incapacitation. The trial Court observed at page 11 of the record that during the Court session, the victim was "lying down, unable to move or talk and of unsound mind, paralyzed and unable to talk."
Because the victim could not testify, the trial Court relied on the evidence of PW3 Okello Moses, the victim's father who testified that in an out of court statement prior to the hearing, the victim had told him that the appellant had defiled her at his maize grinding facility. PW3 testified at page 12 of the record that he went with the victim to the appellant's facility for maize grinding at about 5pm on the material date. PW3's evidence, which was contested by the appellant was that he left the victim at the facility and proceeded to a nearby town. PW3 testified that the victim returned home at about 7.30 p.m and reported to him that the appellant had defiled her. PW3 stated when she made the report, he had observed the victim walking with some difficulty. PW4 Joseph Enyang, the area local leader stated in evidence at page 14 of the record that PW3 had gone to his home with the victim to report the incident. The victim told PW4 also, that the appellant had defiled her. ,
We note that the goal of any criminal trial is to ensure that justice is administered fairly to all involved. The public expects that the perpetrators of crime will be tried and punished accordingly; on the other side, the accused person expects a fair trial at which he can raise any defence to disprove the charges levelled against him. The right to a fair trial is guaranteed by the 1995 Constitution which stipulates that in determination of a criminal charge, an accused person is entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law. See: Article 28 (1) of the 1995 Constitution.
Several principles are recognized in criminal law for the purposes of ensuring a fair trial. One of them is the hearsay rule with which this appeal is concerned. For the definition of hearsay evidence, we shall adopt the following definition of hearsay evidence as recommended upon review of common law authorities by the Ireland Law Reform Commission in its Consultation Paper titled "Hearsay in Civil and Criminal cases" (LRC CP 60-2010):
"Hearsay evidence refers to any statement, whether a verbal statement, written document or conduct, which is made, generated or which occurred out of court involving a person who is not produced in court as a witness, and where the statement is presented as testimony to prove the truth of the facts which they assert."
In R v. Khelawon  2 R.C.S. 787, the Supreme Court of Canada (per Charron, J.) held that the essential defining features of hearsay are the following: 1) the fact that the statement (which is made out of Court) is adduced to prove the truth of its contents and 2) the absence of a contemporaneous opportunity to cross-examine the declarant.
We observe that hearsay evidence is generally inadmissible, subject to certain exceptions. It has been stated that the rationale for the hearsay rule is to guard against the dangers of the miscarriage of justice which may result owing to the lack of the opportunity to produce a key witness. It has been stated that the right to confront the witness against the accused in cross examination helps to test the reliability of the witness's evidence and promotes a fair trial. In Lee vs. Illinois 476 US 530, the US Supreme Court stated:
"On one level, the right to confront and cross-examine adverse witnesses contributes to the establishment of a system criminal
justice in which the perception as well as the reality of fairness prevails. To foster such a system, the Constitution provides certain safeguards to promote to the greatest possible degree society's interest in having the accused and accuser engage in an open and even contest in a public trial."
Notwithstanding the rationale for exclusion of hearsay evidence, the common law recognized that in certain instances, such as with dying declarations, hearsay evidence was inherently reliable and safe to be relied upon. The Uganda Evidence Act, Cap. 6 stipulates that when given in cases, oral evidence given must be direct, that is "if it refers to a fact which could be seen, it must be the evidence of a witness who says he or she saw it." See: Section 59 (a) of the Act. By that provision of the law, oral hearsay evidence is rendered inadmissible, subject, however, to the provisions of Section 30 of the Evidence Act, Cap. 6 which provides for instances (not applicable to the present case) when hearsay evidence may be admissible.
Counsel for the appellant, citing this Court's decision in Ndyaguma David vs. Uganda, Supreme Court Criminal Appeal No. 263 of 2006 advanced the legal proposition that in cases where the victim of a sexual offence is not brought to testify in Court, evidence that she made out of court statements to persons who come to testify revealing that the accused person committed the offence will be "circumstantial evidence arising from hearsay evidence." Without discussing the merits of the Ndyaguma David case (supra), we are of the considered opinion that hearsay evidence and circumstantial evidence are two different kinds of evidence governed by different principles. We are content with the principles on hearsay evidence discussed earlier.
In the present case, we find that the evidence of PW3 and PW4 that the victim made an out of court statement in which she informed the two that the appellant had defiled her at his maize milling facility on the relevant date is hearsay evidence. We find that under the relevant common law principles, PW3 and PW4's hearsay evidence was inadmissible. Those witnesses' evidence is also inadmissible pursuant to the rules stipulated in Section 30 of the Evidence Act, Cap. 6.
Counsel for the respondent, however, cited the Supreme Court decision in Badru Mwindu vs. Uganda Criminal Appeal No. 15 of 1997 for the proposition to the effect that in a sexual offence case, where the victim does not testify at the trial, but the victim made an out of court statement saying;
that the accused defiled her to witnesses who are brought to testify, the statements may be relied on alongside other circumstantial evidence in the case, in convicting the accused. We have read the Badru Mwindu case (supra) and we are of the view that the learned Justices of the Supreme Court, could not have intended in that case to do away with the hearsay evidence rule. The facts in that case were briefly that the appellant, a boda boda rider was entrusted with two girls below the age of 18 and, both sisters, by their parents, to transport them to their respective schools which he did. The appellant also asked and was allowed by the girls' mother to bring them home from school. The appellant allegedly picked one of the girls from their school, took her to his home, from where he defiled her. He then returned to pick the second girl from her school and took both girls home.
The Supreme Court accepted the prosecution evidence that on reaching home, the girl who was defiled informed her parents about the defilement by the appellant. The Supreme Court held that there was ample evidence of a circumstantial nature to justify the decisions of the two lower courts. The Supreme Court cited with approval, a passage from the decision of the Court of Appeal and found that the offence against the appellant had been proved beyond reasonable doubt. Our understanding of the position articulated in the decision in the Badru Mwidu case (supra) is that in all cases, whether involving hearsay evidence or not, the Court may only convict the accused person if it is satisfied that the evidence adduced justifies such a decision.
Given the issues with the prosecution evidence in the present case, it is also necessary to consider the defence evidence to ascertain whether the circumstances of this case justified the conviction of the appellant. In his defence evidence, the appellant admitted that PW3 and the victim went to use the maize grinding facility at about 5:00 p.m on the material date. The appellant however stated at page 20 of the record that the two left the facility together after grinding their maize. He said that he did not see the direction where they went. The appellant stated that the last person at the maize milling facility that day was Abiata Susan, who testified as DW2. DW2 testified that she was familiar with the victim and had been to her home on several occasions. She stated that on the material date at about 6:00 p.m, she went to the maize milling facility operated by the appellant to grind dry cassava and millet. DW2 stated that she was the last customer at the mill that day and after being served, she left the facility in the companwof the appellant who moved with her as she left the facility to go to her home. DW2 stated that she did not see the victim at all on that day. DW2 also testified regarding the victim's mental incapacitation, that she would become unconscious sometimes and was prone to confusion in that she would easily forget things and even suggested at page 23 that the victim "could talk anything" implying that she was capable of fabricating stories to wrongly implicate the appellant.
We reiterate that the victim, could not be cross-examined as to the allegations she made against the appellant. In the Lee vs. Illinois case (supra), the US Supreme Court citing their earlier decision in California v. Green, 399 U. S. 149, 158 (1970), stated that cross examination in criminal trials:
"(1) insures that the witness will give his statements under oath-thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the 'greatest legal engine ever invented for the discovery of truth'; (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness making his statement, thus aiding the jury in assessing his credibility"
In the present case, the fact that the victim was incapable of testifying and being subjected to cross-examination, left reasonable doubt as to whether the appellant was guilty as charged, and specifically whether his defence was untruthful. In the decision in R vs. Lifchus  S.C.R 320, the Canada Supreme Court defined reasonable doubt as follows:
"Reasonable doubt is that based on reason. It is logically derived from the evidence or absence of evidence."
There is reasonable doubt generated by this case about the guilt of the appellant, following the victim's inability to testify due to her mental status and be subjected to cross-examination. In the premises, we cannot accept the contention of counsel for the respondent that the defence evidence for the appellant was a mere fabrication. To make such a finding would require us to speculate as to what the cross-examination of the victim which was not done in this case would have revealed. For the reasons stated above, we are unable to agree with the learned trial Judge that the case against the appellant was proved beyond reasonable doubt. Both grounds of appeal would succeed.
- Accordingly, we hereby allow the appeal; quash the conviction of the' appellant of the offence of Aggravated Defilement contrary to section 29
(3) (4) (a) of the Penal Code Act, Cap. 120 and order the appellant to be set free unless he is being held on other lawful charges.
We so order,
Dated at Lira this 25th day of Feb 2021
Justice of Appeal.