- Flynote
- Criminal law|Evidence Law
- Case summary
- On revision, the court considered whether this conviction was proper. It held that beyond ascertaining whether the child understood the nature of an oath and if not, whether he was possessed of sufficient intelligence to justify the reception of the evidence, the magistrate was required to go further and ascertain whether the child understood the difference between truth and falsehood. The court emphasized that failure to do so can be and was fatal given the vital nature of the child’s evidence. It was further noted that religious belief is manifestly fundamental to the understanding of an oath. The court additionally stated that there was a need for the magistrate to direct himself or herself on the need for corroboration given that the child was a prosecution witness. The trial magistrate was also faulted for not considering the evidence as a whole and instead evaluating the prosecution’s evidence in isolation before requiring the accused to rebut or cast doubt upon it. The court states that the burden of proving a charge beyond reasonable doubt is on the prosecution and the accused ought not to be convicted on the weakness of his or her defence but on the strength of the prosecution’s case. The court also held that the age of the accused was doubtful and that in the absence of sufficient evidence to prove that he was not below, but above 16, corporal punishment could not be imposed upon him according to s 191(3) of Magistrates Court Act. Consequently, the accused’s conviction was quashed and his sentence set aside.
THE REPUBLIC OF UGANDA
IN THE HIGHCOURT OF UGANDA AT KAMPALA
CRIM.REV.NO.157 OF 1976
Uganda v. Oloya s/o Yovani Omeke
JUDGEMENT
Criminal law - Sentencing - Corporal Punishment imposed on accused whose age was 16 years Corporal punishment to be imposed only on a male person under the age of 16 years s. 191(3) M.C.A. - Duty of court to ascertain age of accused where there is doubt.
Evidence - Burden of Proof - Burden lies on prosecution to prove case beyond reasonable doubt - Accused not to be convicted on the weakness of the defence but on the strength of prosecution case - Duty of court to look at evidence as a whole.
Evidence - Evidence of child of tender years - Court to ascertain whether child understands nature of oath - if child is refused swearing - court should record that factor
where child is possessed with enough intelligence to understand duty of telling truth his evidence should be taken - court to warn itself that such evidence requires corroboration
court to record clearly that voire dire is done.
The accused aged 16 years, was charged with the offence of failing to prevent a fire from spreading c/s 311(c) of Penal Code. He pleaded not guilty but was later convicted and sentenced to corporal punishment of 4 strokes in accordance with s. 191(3) of M.C.A.
There had been a big bush fire blazing from the direction of a road and to save his own premises the accused set another fire which spread and damaged the complainant’s house. The complainant testified that he had actually seen the accused setting the other fire and the prosecution called another witness, P.W.2, aged 7 years, to give an eyewitness account of how the accused started the fire. There was no proper voire dire nor was there any direction concerning corroboration of the evidence of a child of tender years carried out. The trial magistrate’s notes stated: P.W.2 Ojo s/o Otuba, aged 7 years a child of tender years tested and found does not understand the nature of oath but he is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of telling the truth. His evidence is therefore received not on oath.”
The trial magistrate also based his decision on the fact that the accused did not produce evidence to show that he took reasonable steps to stop the spread of the fire.
Held: 1. Where the court is confronted with a child of tender years called to give evidence it should question the child to ascertain whether he or she understands the nature of an oath and if the court does not allow the child to be sworn it should
record whether in its opinion the child is possessed of sufficient intelligence to justify reception of the evidence and understands the duty of telling the truth and where the child is a prosecution witness the court should also direct itself that the child’s evidence requires corroboration. The court record must make clear that such a voire dire has been held.
The investigation into the meaning of an oath need not be a lengthy one but it must be made and when made it must be recorded down. The investigation should proceed 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.
It is manifest that religious belief is fundamental to the understanding of an oath and if the court is satisfied on this issue the child can be sworn, but, if the court is not satisfied that the child understands the nature of an oath it remains the duty of the court to ascertain not only that the child is of sufficient intelligence to justify reception of the evidence but also that the child understands the difference between truth and falsehood.
A finding that the child was sufficiently intelligent to give evidence is not enough and an omission to go further to the issue of whether the child understood the difference between truth and falsehood could be fatal to a conviction in a case where the child’s evidence was vital.
. . .
In the instant case the trial Magistrate’s note concerning P.W.2 was not enough
and as he did not record his investigation properly, there was nothing to enable this court to say whether the child was in fact competent to give unsworn evidence.
It is a cardinal principle of the Criminal law that the burden of proving the charge beyond reasonable doubt is on the prosecution and the accused ought not to be convicted on the weakness of the defence but on the strength of the prosecution case.
It is fundamentally wrong to evaluate the case for the prosecution in isolation and then consider whether or not the case for the defence rebuts or casts double on it. In the instant case the trial magistrate ignored the fact that he had to look at the evidence as a whole.
Under section 191(3) of M.C.A. Corporal punishment can only be imposed on a male person under the age of sixteen years.
It is of necessity that the court should make a specific finding as to the age of the boy. In arriving at his finding the magistrate should consider any available
evidence, which may come from any source, e.g. the boy himself, his parents, medical evidence.
In the instant case the age was given as 16 years and not below and if the trial magistrate entertained any doubt about his age he should have called for evidence to prove it.
A sentence of corporal punishment on a boy who is not below 16 is clearly illegal.
Conviction quashed and sentence set aside.
Dated this 17th day of February 1977
SAIED,CJ
Legislation Considered:
Magistrates’ Courts Act, 1970 (Act 13/70), s.191(3) Cases Cited:
Davda v. Rep., [1965] E.A. 201
Fransisio Matovu v. R., [1961] E.A. 260 (C.A.)
Gabriel c/o Maholi v. R., [1960] E.A. 159
' Kibongeny Arap Kolil v. R., [1959] E.A. 92
Okale v. Rep., [1965] E.A. 555
Oloo s/o Gai v. R., [1960] E.A. 86
Uganda v. Muhamed Rusenge, [1971] M.B. 156.