Court name
HC: Criminal Division (Uganda)
Case number
Criminal Case-2019/218
Judgment date
24 September 2020

Uganda v Ajionzi and Ors (Criminal Case-2019/218) [2020] UGHCCRD 4 (24 September 2020);

Cite this case
[2020] UGHCCRD 4
Short summary:

Criminal law — Murder C/s 188 and 189 of The Penal Code Act— The prosecution must prove beyond reasonable doubt that death of a human being occurred, the death was caused by some unlawful act, that the unlawful act was actuated by malice aforethought and that that it was the accused who caused the unlawful death. —Death may be proved by production of a post mortem report or evidence of witnesses who state that they knew the deceased and attended the burial or saw the dead body. — section 15 of The Penal Code Act — Right of self-defence—This includes the right for a person to use reasonable force to protect themselves or another where necessary. A successful affirmative defence of self-defence excuses the accused from criminal liability wholly. An accused that puts up such a defence has no duty to prove it. The burden lies on the prosecution to disprove it. However, the law governing self-defence does not excuse any violent act just because another person struck the first blow or made a violent threat. — Under the common law, there are three conditions which have to be met before the defence of self-defence or defence of another is available; (i) there must be imminent danger to the life or limb of the accused, (ii) the force used in the face of this danger must be necessary for the safety of the accused, by this it is meant that the force must be both necessary in the circumstances and should be proportional to the threat which is being combated, and, (Hi) if the person assaulted has means of escape or retreat, they are bound to use them.

Coram
Mubiru, J

 

 

 

 

 

IN THE HIGH COURT OF UGANDA SITTING AT ARUA

Reportable

Criminal Sessions Case No. 218 of 2019

UGANDA

In the matter between

 

PROSECUTOR

And

  1. AJIONZI HENRY DRAM ADRI alias OLALI
  2. ASIANZU MAJID
  3. NYAKUNI MARTIN
  4. OBETI FEDERIKO
  5. AGOTRE ZAKARIYA
  6. ETOMARU LAVINIA
  7. AGUPIYO FRENZIO
  8. TIPERU JOSEPHINE
  9. OCOKORU ANNA
  10. ACCUSED

    OMBIONZI FRED

Heard: 23September, 2020.

Delivered: 24September, 2020.

Criminal law — Murder C/s 188 and 189 of The Penal Code Act— The prosecution must prove beyond reasonable doubt that death of a human being occurred, the death was caused by some unlawful act, that the unlawful act was actuated by malice aforethought and that that it was the accused who caused the unlawful death. —Death may be proved by production of a post mortem report or evidence of witnesses who state that they knew the deceased and attended the burial or saw the dead body. — section 15 of The Penal Code Act — Right of self-defence—This includes the right for a person to use reasonable force to protect themselves or another where necessary. A successful affirmative defence of self-defence excuses the accused from criminal liability wholly. An accused that puts up such a defence has no duty to prove it. The burden lies on the prosecution to disprove it. However, the law governing self-defence does not excuse any violent act just because another person struck the first blow or made a violent threat. — Under the common law, there are three conditions which have to be met before the defence of self-defence or defence of another is available; (i) there must be imminent danger to the life or limb of the accused, (ii) the force used in the face of this danger must be necessary for the safety of the accused, by this it is meant that the force must be both necessary in the circumstances and should be proportional to the threat which is being combated, and, (Hi) if the person assaulted has means of escape or retreat, they are bound to use them.

JUDGMENT

Introduction:

  1. The ten accused persons in this case were jointly indicted with the offence of Murder C/s 188 and 189 of The Penal Code Act. It is alleged that the accused and others still at large on the 18th day of March, 2019 at Ajibibari village, Ajia sub-county in Arua District murdered Azabo Akile. At the close of the prosecution case, the court found that the prosecution had failed to make out a case against; A2 Asianzu Majid, A3. Nyakuni Martin, A4 Obeti Federiko, A5 Agotre Zakariya, A6 Etomaru Lavinia, A9 Ocokoru Anna and A10 Ombionzi Fred. The seven accused were accordingly acquitted of the offence and set free. The trial continued against the three accused; A1 Ajionzi Henry Dramadri alias Olali; A7 Agupiyo Frenzio; and A8 Tiperu Josephine.

Prosecution evidence.

  1. The prosecution case is that the family of the three accused and the deceased were involved in a land dispute. The deceased filed a suit that was pending trial before the Chief Magistrate’s Court at Arua that was due to be heard on 19th day of March, 2019. It is for that reason that on the morning of 18th day of March, 2019 the deceased asked P.W.3 Bileni Emmanuel, a member of the Area Land Committee, to help him take measurements of the area in dispute, as part of his preparation for the hearing of the suit the following day. The two of them arrived at the land in dispute at around 10.00 am whereupon P.W.3 Bileni Emmanuel sent for the family of the accused to be present during the exercise. To his surprise, only A1 Ajionzi Henry Dramadri alias Olali and A7 Agupiyo Frenzio turned up and they immediately began assaulting him and the deceased using sticks, boxing and kicking. They were later joined by other people and the beating continued for about an hour and a half, culminating in the death of the deceased at the scene. The assailants later fled and went into hiding. The police came to the scene and carried the body away. The post mortem examination revealed that the cause of death was brain injures due to blunt force trauma. A1 Ajionzi Henry Dramadri alias Olali reported to the police and was arrested. A8 Tiperu Josephine was arrested more than a week later from her home in the wee hours of the morning. A7 Agupiyo Frenzio was arrested from Kampala a month later. When put to his defence, A7 Agupiyo Frenzio opted to change his plea and pleaded guilty to the indictment. He was convicted on his own plea of guilty.

The Accused’s’ evidence:

  1. In his defence as D.W.1 Ajionzi Henry Dramadri alias Olali testified that it is the deceased who kicked him and he fell down. He had sustained a fracture of his leg four years before. P.W.3 Bileni boxed the deceased to save D.W.1. The deceased would have killed him had his son, A7 Agupiyo Frenzio not arrived. The deceased boxed D.W.1 on the mouth as he sat on him. When A7 arrived he began beating both of the victims and D.W.1 told him to leave P.W.3 Emmanuel alone. A7 raised D.W.1 up and told him to go home. D.W.1 began walking away slowly as A7 was still fighting the deceased. D.W.1 told him to stop and get a bicycle to take him to the headquarters. He was walking away slowly when he saw Emmanuel run past him. D.W.1 just slapped Emmanuel and Azabo came and grabbed the walking stick from him. Emmanuel stopped D.W.1 from hitting the deceased. The walking stick was broken by the deceased.
  2. On her part D.W.2 Tiperu Josephine testified that she had gone to harvest cassava at around 5.59 am. The garden is far from home and she returned home that day at 7.00 pm when it was getting dark. She was informed that Azabo Akile and her uncle met and her uncle had killed Azabo. She did not attend the burial because of fear since she was told her uncle had killed the deceased. Emmanuel told lies about her presence at the scene. She did not witness the killing.
  3. D.W.3 Obeti Emmanuel testified that A8 Tiperu Josephine is his aunt. Around 6.00 am as he returned home he met her along the way as she went to harvest cassava at Olevu village. She left home at dawn at around 6.00 am and he thereafter left home at around 8.00 am. He did not know when she came back home.

The Burden and standard of proof

  1. Since the two accused pleaded not guilty, like in all criminal cases the prosecution has the burden of proving the case against each of them beyond reasonable doubt. The burden does not shift to any of the accused persons and the accused can only be convicted on the strength of the prosecution case and not because of weaknesses in their respective defences, (see Ssekitoleko v. Uganda [1967] EA 531). The accused do not have any obligation to prove their innocence. By their respective pleas of not guilty, the accused put in issue each and every essential ingredient of the offence with which they are jointly charged and the prosecution has the onus to prove each of the ingredients beyond reasonable doubt before it can secure their conviction. Proof beyond reasonable doubt though does not mean proof beyond a shadow of doubt. The standard is satisfied once all evidence suggesting the innocence of the accused, at its best creates a mere fanciful possibility but not any probability that the accused are innocent, (see Miller v. Minister of Pensions [1947] 2 ALL ER 372).

Ingredients of the offence

  1. For the accused to be convicted of Murder, the prosecution must prove each of the following essential ingredients beyond reasonable doubt;
  1. Death of a human being occurred.
  2. The death was caused by some unlawful act.
  3. That the unlawful act was actuated by malice aforethought; and lastly
  4. That it was the accused who caused the unlawful death.

a) Death of a human being occurred.

  1. Death may be proved by production of a post mortem report or evidence of witnesses who state that they knew the deceased and attended the burial or saw the dead body. In the instant case P.W.3 Bileni Emmanuel testified that the deceased was assaulted together with him and he died at around 11.30 am. He died while he was left by the assailants alone with him, after which he sneaked away fearing that the assailants would return to finish him off as well. P.W.2 Andiga Johnson testified that he saw the body of his brother Azabo Akile when he rushed to the scene. P.W.4 Draza Marton testified that as he ran after people he saw fleeing to find out why they were fleeing, he came across the body of the deceased, Azabo Akile. The deceased was buried on 20th March, 2019 and he attended the funeral.
  2. P.W.6 No. 34843 D/Cpl Okello Moses testified that on 18th May, 2019 he went to the scene. He photographed the body before uncovering it. He then uncovered the body and found it lay face up, and photographed it. He turned the body and he saw a deep cut on the head and photographed that part as well. He picked the body and took it to Arua Regional Referral Hospital for post mortem examination during which process he took some photographs. The photographs at the scene were exhibited as P. Ex. 15 and those taken during the post mortem as P. Ex.16. Furthermore, the admitted evidence of P.W.1 Dr. Madrama Charles a Medical Officer of Arua Police Health Centre III shows that on 18th March, 2019 he examined the body of Azabo Akile identified to him by P.W.2 Andiga Johnson. The post mortem report was tender in evidence as P. Ex.1. He found the deceased to have been a 65-year-old man. Having considered the evidence as a whole, and in agreement with the assessors, I find that the prosecution has proved beyond reasonable doubt that Azabo Akile died on the morning of 18th March, 2019.

b) The death was caused unlawfully.

[11 ] The prosecution had to prove further that the death of Azabo Akile was unlawfully caused. It is the law that any homicide (the killing of a human being by another) is presumed to have been caused unlawfully unless it was accidental or it was authorized by law (see R v. Gusambizi s/o Wesonga (1948) 15 EACA 65). P.W.3 Bileni Emmanuel testified that the deceased was beaten over a land dispute. He had gone to take measurements of the land with the deceased on 18th March, 2019, the same day he was killed. The deceased was assaulted severely during which he was hit on the head and he was bleeding. P.W.2 Andiga Johnson testified that when he went to the scene he found the grass around the body had been trampled upon and smothered to the ground. He uncovered the body and found that he had three wounds on the head, his body was covered in blood and his it was dusty. Blood had splashed all over his body. The admitted evidence of P.W.1 Dr. Madrama Charles as recorded in the post mortem report, exhibit P. Ex.1, shows that the cause of death was brain injures due to blunt force trauma. He had lacerated scalp wounds, bleeding from the ears, the head, the neck and the chest was drenched in dry blood. He had a fracture of the paleatal bone with subdural haemorrhage. The anterior chest muscles were contused with the 6th and 7th ribs on the right, were fractured.

  1. It is the duty of the trial court to deal with all the alternative defences, if any, if they emerge from all the evidence as fit for consideration notwithstanding that they are not put forward or raised by the defence, for every man on trial for murder is entitled to have the issue of manslaughter left to the assessors if there is evidence on which such a verdict can be given, to deprive him of this constitutes a grave miscarriage of justice (see Mancini v. D.P.P. [1942] AC 1 and Didasi Kebengi v. Uganda [1978] HCB 216). In his defence, D.W.1 Ajionzi Henry Dramadri alias Olali stated that the deceased would have killed him had his son, A7 Agupiyo Frenzio not arrived to intervene and beat the deceased. He thus obliquely pleaded self-defence.
  2. The right of self-defence is recognised by section 15 of The Penal Code Act and in common law. This includes the right for a person to use reasonable force to protect themselves or another where necessary (see R v. Williams 78 Cr App Rep 276 and Palmer v. The Queen [1971] AC 814). A man about to be attacked does not have to wait for his assailant to strike the first blow, or fire the first shot, circumstances may justify a pre-emptive strike (see Beckford v. The Queen [1988] AC 130). A successful affirmative defence of self-defence excuses the accused from criminal liability wholly. An accused that puts up such a defence has no duty to prove it. The burden lies on the prosecution to disprove it. However, the law governing self-defence does not excuse any violent act just because another person struck the first blow or made a violent threat.

[13] Under the common law, there are three conditions which have to be met before the defence of self-defence or defence of another is available; (i) there must be imminent danger to the life or limb of the accused, (ii) the force used in the face of this danger must be necessary for the safety of the accused, by this it is meant that the force must be both necessary in the circumstances and should be proportional to the threat which is being combated, and, (iii) if the person assaulted has means of escape or retreat, they are bound to use them. When the defence of self-defence is raised, it is conventional to ask whether the accused believed each of the following facts: (a) an aggressor was threatening him with harm, (b) that harm would be of a particular level of gravity, (c) his use of force in response would prevent that harm; and whether a reasonable person would believe, each of the following facts; (d) the level of responsive force he expects to employ would be of a similar level of gravity, (e) if the force was not used, the threatened harm would occur immediately, and (f) no nonviolent or less forceful alternatives were available whereby the threat could be avoided.

  1. An imminent danger to the life or limb of the accused.
  1. Deadly force is justified only when undertaken to prevent imminent and otherwise unavoidable danger of death or grave bodily harm. The threat must be of such a nature as to overcome the resolution of an ordinarily constituted person of the same age and sex as the accused. The defence will only be available if a sober person of reasonable firmness, sharing the characteristics of the accused, would have responded as he did. In a criminal trial, an accused who mistakenly but honestly believes that it is necessary to act in self-defence is entitled to be judged on the basis that his mistaken belief is true. It is sufficient if the accused believed on reasonable grounds that he was in imminent danger. Grounds for such belief might exist even though the accused was mistaken in thinking that the deceased was armed.
  2. There are two versions of the incident; according to P.W.3 Bileni Emmanuel, it was D.W.1 Ajionzi Henry Dramadri alias Olali who began the assault with his walking stick. He saw the accused hit the deceased on the head with his walking stick before a struggle ensued between them as the deceased attempted to disarm the accused. It is at that point that A7 Agupiyo Frenzio intervened and snatched the stick from the deceased and continued with the assault. The deceased was assaulted severely during which he was hit on the head and he bled.
  3. On the other hand, the version by D.W.1 Ajionzi Henry Dramadri alias Olali is that it is the deceased who kicked him and he fell down. He had sustained a fracture of his leg four years before. The deceased boxed the accused on the mouth as he sat on him while he continued to box him. When A7 arrived he began beating both of the victims and the accused told him to leave P.W.3 Emmanuel alone. To give rise to a situation warranting action in defence there must be an unlawful attack which had commenced or was imminent. In the instant case the prosecution has not disprove that there was such attack. It is the word of the accused against that of P.W.3. The accused therefore takes the benefit of the doubt.
  1. No available means of escape or retreat.
  1. An individual has to show that a reasonable person could not have avoided the violent encounter by moving to a safe place and therefore had no other option but to defend himself or herself violently. It must be a reasonable opportunity to escape. A person under attack should not be expected to use an opportunity to escape that puts them in greater or equal danger than the danger they face. The law expects the accused to retreat or, at least, put some sort of obstacle between himself and the attacker, if he can. That might mean closing a door, driving or running away. This duty to retreat does not, however, require the accused to place himself in danger by doing so. In general, though, people who are under attack in their own homes don’t need to retreat or try to escape, even if they can do so safely. In H.M.A. v. Doherty (1954) JC 1; SLT 169, the accused was attacked by a man with a hammer. There was an open door behind them (means of escape). Instead of choosing to run away from the assault he stabbed his attacker and as a result he was convicted. His defence failed because it was found that he could have retreated.
  2. In the instant case, there are two versions. That of P.W.3 Bileni Emmanuel is to the effect that when the deceased saw the accused attacking him, the deceased
 

walked backwards to a distance of about 10 to 20 metres before the accused followed him there and began assaulting him. On his part, D.W.1 Ajionzi Henry Dramadri alias Olali stated that it is the deceased who boxed him on the mouth and when he fell down, the deceased sat on him while he continued to box him. The latter version shows there was no time for the accused to retreat and create distance between himself and the deceased. The prosecution has not disproved it. It is the word of the accused against that of P.W.3. The accused therefore takes the benefit of the doubt.

  1. The force used was necessary for the safety of the accused.
  1. The question of whether the nature of force used by a person was necessary in the circumstances is to be decided not by reference to what an ordinary or reasonable person would have realised in the circumstances, but by reference to those circumstances as that person genuinely and honestly believed them to be. This is so even if their belief is mistaken. The court must determine what the accused believed the circumstances to be when he or she resorted to the use of force. This is a subjective inquiry. Even an irrational or unreasonable belief, if honest and genuine, will suffice. The accused’s belief need not be reasonable but must not be obviously false, since falsity and unreasonably mistaken belief may influence the court in deciding whether the accused genuinely held that belief. If the accused had an honest and genuine reason to believe that the deceased had a lethal weapon when he fired the shot, and if he would not have acted as he did had he known the deceased was not armed, then the defence succeeds. It is important to remember that a genuine belief, although it turns out to have been a mistaken one, should be one that it is not blameworthy or culpable to have.
  2. Potential factors to take into account could include; the nature and seriousness of the initial attack, whether the attacker persisted with the attack after an attempt to repel them had no effect, whether a means of escape became available during the attack, and whether the attacker had already been disabled by the accused.
  3. When determining whether the force used was necessary, the court considers the elements of "ability," "opportunity" and "jeopardy." Ability means that the attacker possessed a weapon capable of causing death or grievous bodily harm. The critical issue is the reasonable perception that the attacker possesses a weapon. Opportunity entails showing that the attacker was close enough to use their ability against the accused. Jeopardy requires evidence of behaviour by the attacker that would lead a reasonable person to believe that he or she was preparing to or in the process of attack. Whether the degree of force used in the circumstances (as the accused believed them to be) was actually reasonable will, however, be assessed objectively by the court. It requires the court to determine whether there were reasonable grounds for the accused’s belief that it was necessary to do what the accused did. The court will consider whether the accused acted reasonably in the circumstances with an exclusive intention in using force as he did to protect himself from harm, taking into account the exigencies of the situation. This is not a test about what the hypothetical "reasonable person" might have believed in the circumstances, but about whether the accused had reasonable grounds for his or her belief, in the circumstances as he or she perceived them to be. A person defending himself should not resort to deadly force too quickly or without sufficient justification^
  4. When resorting to force, the person claiming the defence should have used the minimum necessary force required to meet the self-preservation objective of neutralising the attack. Using force that goes beyond the minimum required would be considered unnecessary use of force and thus a violation. In situations where the use of force was legal and legitimate, but the type and level of force was unnecessary and I or disproportionate, it will be classified as excessive use of force.
  5. Although in his defence the accused claimed that at the time A7 Agupiyo Frenzio intervened the deceased was seated on his belly boxing him continuously, the deceased was not armed with any weapon. Dis-engagement of the two does not appear to have required much force or a prolonged intervention. It was the testimony of D.W.1 Ajionzi Henry Dramadri alias Olali that after dis-engaging them, A7 Agupiyo Frenzio raised him up and told him to go home. D.W.1 began walking away slowly as A7 continued to fight the deceased. According to P.W.3 Bileni Emmanuel, that assault continued for nearly an hour and a half thereafter. After the disengagement, the deceased did not pose a threat to life or limb of anyone. He only sought to escape. The force used thereafter was unnecessary to secure the safety of the accused.
  1. Proportionate force used.
  1. The principle of proportionality serves to assess the balance between the harm caused through the use of force and the benefits thereby achieved. Whenever the lawful use of force is unavoidable, a person repelling the attack should exercise restraint in proportion to the seriousness of the attack. Thus an important consideration when establishing the proportional response is the level of threat to life and property that is being experienced. Once the harm caused by the use of force outweighs the advantages of its use, use of force becomes disproportionate. There is no hard and fast rule as to what constitutes a proportionate response in any given scenario; it is a matter for the court.
  2. The law recognises that it is a difficult matter for the individual to judge in what tend to be moments of extreme stress. The calculus of reasonableness must embody allowance for the power of fear, panic, and anger, and their tendency to induce instinctive defensive reactions. It would be unfair to expect an accused to make accurate assessments and predictions in emergency circumstances, such as when one is suddenly and violently attacked; "detached reflection cannot be demanded in the presence of an uplifted knife" (see Brown v. United States, 256

U.S. 335, 343 (1921). "It will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action" (see R v. Palmer [1971] AC 814; [1971] 1 All ER 1077, (1971) 55 Cr App R 223 (PC).

  1. Nevertheless, the force used has to be proportionate to the harm anticipated and designed to minimise the risk to the suspect. The use of disproportionate defensive force results in the loss of the defence. To kill when it is not absolutely necessary to do so is surely to act unreasonably. The court should also bear in mind society’s legitimate expectation that all citizens who choose to use violent force should respond to and express such emotions with due restraint, caution, and focus. For the defence to succeed, Court should be satisfied that in the circumstances, the accused acted in the only way that he could think of at the moment.
  2. When deciding whether or not use of lethal force was reasonable, the imminence and seriousness of the attack or anticipated attack, proportionality of the defensive action to the perceived danger, and the lack of alternatives will be taken into account. The court will have to consider whether in the circumstances the accused should have used lesser force, or should have avoided the use of force altogether, in response. It was the testimony of D.W.1 Ajionzi Henry Dramadri alias Olali that after dis-engaging them, A7 Agupiyo Frenzio raised him up and told him to go home. D.W.1 began walking away slowly as A7 continued to fight the deceased. According to P.W.3 Bileni Emmanuel, that assault continued for nearly an hour and a half thereafter. After the disengagement, the deceased did not pose a threat to life or limb of anyone. He only sought to escape. The force used thereafter was excessive and disproportionate.
  3. All in all, I find that the defence of self-defence is not available to the accused. Not having found any lawful justification or excuse for the accused to hit the deceased continually for over an hour and a half, I agree with the assessors that the prosecution has proved beyond reasonable doubt that Azabo Akile's death was unlawfully caused.

c) That the unlawful act was actuated by malice aforethought

  1. Thirdly, the prosecution was required to prove that the cause of death was actuated by malice aforethought. Malice aforethought is defined by section 191 of the Penal Code Act as either an intention to cause death of a person or knowledge that the act causing death will probably cause the death of some person. The question is whether whoever assaulted the deceased intended to cause death or knew that the manner and degree of assault would probably cause death. This may be deduced from circumstantial evidence (see R v. Tubere s/o Ochen (1945) 12EACA 63).
  2. P.W.3 Bileni Emmanuel testified that the assault began at 10.00 am and the beating continued for about an hour. A7 Agupiyo Frenzio used a stick. The deceased had grabbed the stick from A1 Ajionzi Henry Dramadri alias Olali and A7 Agupiyo Frenzio grabbed the stick back from the deceased and used it to assault him. He was boxed and kicked. P.W.6 No. 34843 D/Cpl Okello Moses testified that he picked some of the sticks he found at the scene. He marked them as KKT - 02 which had split, received as exhibit P. Ex. 18. KKT - 01 which was not consistent with the vegetation was received as exhibit P. Ex. 19.
  3. Malice aforethought being a mental element is difficult to prove by direct evidence. The question is whether whoever shot the deceased intended to cause death or knew that the manner and degree of assault would probably cause death. Malice aforethought is a mental element that is difficult to prove by direct evidence. Courts usually consider weapon used (in this case two sticks) and the manner it was applied (fatal injuries inflicted) and the part of the body of the victim that was targeted (the head and chest). The ferocity with which the weapon was used can be determined from the impact (lacerated scalp wounds, fracture of the paleatal and the 6th and 7th ribs on the right, were fractured). P.W.1 who conducted the autopsy established the cause of death as the cause of death was brain injures due to blunt force trauma.
  4. Under section 191 (b) of The Penal Code Act, criminal liability attaches based on a culpability element of purposeful or knowing action with knowledge that the act or omission causing death will probably cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused. A person who assaults another for over an hour, hitting his body indiscriminately with the type of sticks that where exhibited in court, consciously disregards a substantial and unjustifiable risk that his or her act will probably cause the death of the victim of the assault.
  5. When the risk is of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him or her, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation, malice aforethought will be readily inferred. The nature of the assault, its duration and the type of weapons used betray the intent that death should result or foresight that death would probably result. Any of these states of mind constitutes malice aforethought. Although there is no direct evidence of intention, it can be readily inferred based only on circumstantial evidence of the nature and location of the injuries and the weapon used to inflict them. The prosecution has consequently proved beyond reasonable doubt that Azabo Akile’s death was caused with malice aforethought.

d) Each of the accused participated in causing the death.

  1. Lastly, there should be credible direct or circumstantial evidence placing the accused at the scene of the crime as an active participant in the commission of the offence. In her defence as D.W.2 Tiperu Josephine testified that she had gone to harvest cassava at around 5.59 am. The garden is far from home and she returned home that day at 7.00 pm. She therefore raised the defence of alibi.
  2. To refute that defence, the prosecution relies on P.W.3 Bileni Emmanuel who testified A1 Ajionzi Henry Dramadri alias Olali attempted to hit him with stick on his head but he dodged and it hit his shoulder. It was a walking stick with a blob at the handle. As P.W.3 turned A1 Ajionzi hit him on his back. A7 Agupiyo Frenzio kicked P.W.3 on his ribs and he fell down. By then A1 Ajionzi Henry Dramadri alias Olali was attacking the deceased. He aimed a stick at the deceased. He was able to identify only three people; A7 Agupiyo Frenzio, A1 Ajionzi Henry Dramadri alias Olali and his uncle Samua. He did not see any woman participate in the beating. He saw about two or three women participate. He heard the voice of his daughter-in-law, A8 Tiperu Josephine while at the scene but he lay face down and could not see what was going on at that point.
  3. Further evidence is found in the testimony of P.W.2 Andiga Johnson who stated that at a mediation meeting that was convened on the land in dispute on 16th march, 2019, A1 Ajionzi Henry Dramadri alias Olali and A7 Agupiyo Frenzio had uttered threats to kill the deceased while the others supported in chorus. Following the death of the deceased, they went into hiding. A7 Agupiyo Frenzio, had run to Kampala and was arrested from there. This is corroborated by P.W.4 Draza Marton who testified too that about a month before this killing he had heard A7 Agupiyo Frenzio say he would kill the deceased. On 18th March, 2019 at around 10.00 am he was at his home when he saw the three accused fleeing from the village. A7 Agupiyo Frenzio was carrying hoes while A8 Tiperu Josephine was carrying utensils and clothes. On the day of the incident they did not return. They began sleeping in their house after a week and hiding by day. They were arrested from their homes very early in the morning. They used to sleep in the houses and go into hiding in the morning.
  4. As regards the testimony of P.W.3 Bileni Emmanuel to the effect that he heard and recognised the voice of his daughter-in-law at the scene, I reject the argument that P.W.3 could have been mistaken about that voice. That testimony together with that of P.W.4 Draza Marton who saw A8 Tiperu Josephine flee from the village shortly after the death of the deceased destroyed her alibi defence. She was effectively placed at the scene of crime at the material time. However, mere presence at the scene of crime is not proof of participation. One who is present at the scene but performs no overt act of assistance, encouragement or procuration of the crime cannot be guilty of aiding and abetting it. It is only persons who are present at the scene of a crime and are either aiding, abetting, assisting, or advising in its commission, or are present for such purpose to the knowledge of the actual perpetrator, who are principals and equally guilty in its commission (see section 19 of The Penal Code Act; R v. Bland [1988] Crim LR 41 and R v. Clarkson [1971] 1 WLR 1402). An aider and abettor is one who advises, counsels, procures, or encourages another to commit a crime. To render one who does not actually participate in the commission of a crime guilty of the offense committed, there must be some evidence tending to show that he or she, by word or deed, gave active encouragement to the perpetrator of the crime or by his or her conduct made it known to such perpetrator that he or she was standing by to lend assistance when and if it should become necessary. There is no credible evidence to show that A8 Tiperu Josephine while at the scene, did take an active part in the assault of the deceased.
  5. It was argued further that the conduct of A8 Tiperu Josephine fleeing from the village within a short time following the killing provides circumstantial evidence of her guilt and complicity in the killing. Circumstantial evidence is that which establishes the fact to be proved only through inference based on human experience that a certain circumstance is usually present when another certain circumstance or set of circumstances is present. Indeed, flight from the vicinity of crime most often is inconsistent with innocence. However, in a case depending exclusively upon circumstantial evidence, the court must find before deciding upon conviction that the exculpatory facts are incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. The circumstances must be such as to produce moral certainty, to the exclusion of every reasonable doubt. It is necessary before drawing the inference of the accused’s responsibility for the offence from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.
  6. It was the testimony of A8 Tiperu Josephine that she fled after she was informed that Azabo Akile and her uncle met and her uncle had killed Azabo. She did not attend the burial because of fear since she was told her uncle had killed the deceased. While the facts and circumstances in respect to A8 Tiperu Josephine fleeing from the village within a short time following the killing are consistent with her guilt, they are likewise consistent with her innocence, yet the guilt of a person charged with the commission of a crime is not to be inferred merely from facts consistent with her guilt, nor may the enforcement of the criminal law be made to rest upon surmise or conjecture. In the absence of evidence of A8 Tiperu Josephine’s knowledge of the intention or purpose of the principals to commit the offense, and acts, conduct, words, signs, or any means on her part sufficient to incite, encourage or instigate the commission of the offence, or to express her support or approval, these circumstances consist of no more than a mere conjecture or suspicion of guilt and do not constitute evidence of sufficient definite probative value to justify a conviction. Consequently, I find that the prosecution has not proved the participation of A8 Tiperu Josephine beyond reasonable doubt. I accordingly find the accused A8 Tiperu Josephine not guilty and thereby acquit her of the offence of Murder c/s 188 and 189 of the Penal Code Act. She should be set free forthwith unless there is a lawful reason for keeping her in custody.
  7. As regards A1 Ajionzi Henry Dramadri alias Olali, P.W.3 Bileni Emmanuel testified that when he attacked, they were initially five metres apart. The attack occurred during day time and was prolonged. Although for most of the time he had his face to the ground there is not likelihood of error or mistake in his identification of the accused since je knew him before. In his one defence, the accused placed himself squarely at the scene of crime, only unsuccessfully presenting himself as the victim of the deceased’s aggression.

Order:

  1. Consequently, I find that the prosecution has proved all the essential ingredients of the offence against him beyond reasonable doubt. I accordingly find the accused A1 Ajionzi Henry Dramadri alias Olali guilty and convict him for the offence of Murder c/s 188 and 189 of the Penal Code Act.

Dated at Arua this 24th day of September, 2020            ....................................................

Stephen Mubiru

Judge.

SENTENCE AND REASONS FOR SENTENCE

  1. The two convicts have been found guilty of the offence of Murder C/s 188 and

189 of the Penal Code Act. Sentencing is a reflection of more than just the seriousness of the offence. The court at this stage may take into account the degree of culpability of the convict based on such factors as intent, motivation, and circumstance that bear on the convict’s blameworthiness. During trial, court considers legal culpability of the convict including the convict’s intentions, motives, and attitudes. At sentencing, the court should look beyond the cognitive dimensions of the convict’s culpability and should consider the affective and volitional dimension as well.

  1. Murder is one of the most serious and most severely punished of all commonly committed crimes. The offence of murder is punishable by the maximum penalty of death as provided for under section 189 of the Penal Code Act. In cases of deliberate, pre-meditated killing of a victim, courts are inclined to impose the death sentence especially where the offence involved use of deadly weapons, used in a reckless manner. This maximum sentence is usually reserved for the most egregious cases of Murder committed in a brutal, gruesome, callous manner. This case is not in the “rarest of the rare category.” I have for that reason discounted the death sentence.
  2. When imposing a custodial sentence on a person convicted of the offence of Murder C/s 188 and 189 of the Penal Code Act, The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 stipulate under Item 5 of Part I (under Sentencing ranges - Sentencing range in capital offences) of the Third Schedule, that the starting point should be 35 years’ imprisonment, which can then be increased on basis of the aggravating factors or reduced on account of the relevant mitigating factors. I find the more aggravating factors to include the fact that the dispute over land was already before court and was due to be heard the following day. This was not only a demonstration of high disregard for the judicial process but also for life.
  3. In determining the appropriate custodial sentence, I have taken into account the current sentencing practices in relation to cases of this nature, I have considered the case of Bukenya v. Uganda C.A Crim. Appeal No. 51 of 2007, where in its judgment of 22nd December 2014, the Court of Appeal upheld a sentence of life imprisonment for a 36-year-old man convicted of murder. He had used a knife and a spear to stab the deceased, who was his brother, to death after an earlier fight. Similarly, in Sunday v. Uganda, C.A Crim. Appeal No. 103 of 2006, the Court of Appeal upheld a sentence of life imprisonment for a 35-year-old convict who was part of a mob which, armed with pangas, spears and sticks, attacked a defenceless elderly woman until they killed her. In Byaruhanga v. Uganda, C.A Crim. Appeal No. 144 of 2007, where in its judgment of 18th December 2014, the Court of Appeal considered a sentence of 20 years’ imprisonment reformatory for a 29-year-old convict who drowned his seven months old baby. The convict had failed to live up to his responsibility as a father to the deceased who was victimized for the broken relationship between him and the mother of the deceased. In light of the aggravating factors outlined by the learned State Attorney, I consider a starting point of forty (40) years’ imprisonment.
  4. Against this, I have considered the belated plea of guilty by A7 Agupiyo Frenzio by reason of which he is entitled to a discount for having pleaded guilty. The practice of taking guilty pleas into consideration is a long standing convention which now has a near statutory footing by virtue of regulation 21 (k) of The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013. As a general principle (rather than a matter of law though) an offender who pleads guilty may expect some credit in the form of a discount in sentence. The requirement in the guidelines for considering a plea of guilty as a mitigating factor is a mere guide and does not confer a statutory right to a discount which, for all intents and purposes, remains a matter for the court's discretion. However, where a judge takes a plea of guilty into account, it is important that he or she says he or she has done so (see R v. Fearon [1996] 2 Cr. App. R (S) 25 CA). In this case therefore I have taken into account the fact that the convict pleaded guilty belated at the opening of the defence hence attracting only a 10% discount, as one of the factors mitigating his sentence, and reduced the indicative sentence to thirty-six (36) years’ imprisonment.
  5. I have considered the submissions made in mitigation of sentence and the allocutus, more especially the age and family responsibilities of each of the convicts. On that account of the fact that the sentence should not only fit the crime but also the offender, I have thereby reduced the sentence from the starting point of forty (40) years’ imprisonment to twenty (20) years’ imprisonment in respect of A1 Ajionzi Henry Dramadri alias Olali in light of his advanced age and the fact that he is only ten years shy of the age of 75 at which Regulation 9 (4) (a) of The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013 recommends a convict not to be sentenced to a custodial sentence. I have as well in light of the mitigation advanced in respect of A7 Agupiyo Frenzio reduced the sentence from thirty-six (36) years’ imprisonment to thirty-two (32) years’ imprisonment.
  6. In accordance with Article 23 (8) of the Constitution and Regulation 15 (2) of The Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions, 2013, to the effect that the court should deduct the period spent on remand from the sentence considered appropriate, after all factors have been taken into account, I note that A1 Ajionzi Henry Dramadri alias Olali he has been in custody since 8th May, 2019. I hereby take into account and set off a period of one (1) year and four (4) months as the period he has already spent on remand. I therefore sentence A1 Ajionzi Henry Dramadri alias Olali to a term of imprisonment of eighteen (18) years and eight (8) months, to be served starting today.
  7. I further note that A7 Agupiyo Frenzio has been in custody since 1st April, 2019. I hereby take into account and set off a period of one (1) year and five (5) months as the period he has already spent on remand. I therefore sentence A7 Agupiyo Frenzio to a term of imprisonment of thirty (30) years and seven (7) months, to be served starting today.
  8. Each of the convicts is advised that he has the right to appeal both conviction and sentence within a period of fourteen days.

Stephen Mubiru

Session Judge.

Appearances

State Attorney   : Ms. Gertrude Nyipir.

For the accused : Mr. Abiyo Ivan.