Uganda v Kizza & Ors (Criminal Session Case No. 76 of 1989) [1989] UGHCCRD 1 (19 December 1989)

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Criminal law|Evidence Law

Case summary

The court relied upon post-mortem reports and the evidence of several witnesses to find that in respect of both counts, the ingredients of murder had been sufficiently proven. In particular, it found that two persons had been killed; that the nature of their injuries on the head and abdomen and the sharp weapons used demonstrated malice aforethought (malice aforethought), and that the killing was unlawful because of the nature of injuries and the rule that homicides are presumed to be unlawful unless caused by accident. The court also considered whether the evidence in respect of count one, which was purely circumstantial, was sufficient to warrant convictions. It cautioned itself and stated that to rely on such evidence, it had to be satisfied that the facts incriminating the accused were incompatible with his/her innocence and inexplicable except upon a hypothesis of guilt. The court then found that the circumstantial evidence available sufficiently pinned the accused persons based on that test. Regarding count two, the evidence was not purely circumstantial. The court then moved on to determine whether the accused persons had participated in the killings and thereby each accrued individual liability. It did so by considering the doctrine of common intention and held that as the accused persons had all formed a common intention to prosecute an unlawful purpose (preventing the deceased victims who were police officers from doing their duty, and instead chasing them down to beat them up) and as the death that had resulted was a probable consequence of their actions in prosecuting that unlawful purpose, they were all liable for the offence of murder according to s 22 of the Penal Code Act. This also included the fourth accused who had contributed by restraining the key eyewitness while the other accused persons assaulted one of the victims. The court stated that common intention may be inferred from presence and actions of an accused person or even their omission to dissociate themselves from the acts of the others. Mere presence at the scene of a crime is not, by itself alone, sufficient to prove common intention but in this case the fourth accused had gone beyond mere observance. Regarding count two, the court accepted eyewitness testimony that one of the victims was speared by the first accused, and held that the second accused was also liable for this offence on the basis of the doctrine of common intention. It however found that there was doubt as to whether the fourth accused had formed a common intention with the other co-accused at the time this victim was speared and so he was acquitted on that count. Conclusively, the first, second and fourth accused were found guilty on count one. The first and second accused were found guilty on count two and the fourth accused was acquitted regarding the count two. The third accused had been struck off the case file.

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