(CORAM: TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA AND
(Appeal from the decision of the Court of Appeal before KATO, OKELLO AND KITUMBA JJ.A. dated 22nd May, 2000 in Criminal Appeal No. 30 Of1999)
REASONS FOR JUDGEMENT OF THE COURT:
The appellant, Kato Sula, was tried and convicted by the High Court on an indictment charging him with the offence of defilement contrary to section 123(1) of the Penal Code. He was sentenced to 8 years' imprisonment. His appeal to the Court of Appeal was dismissed. He appealed to this Court.
We heard the appeal on 27th November, 2000 and dismissed it because we found that there was no merit in the appeal and reserved our reasons. We now give the reasons.
It was the prosecution case that the complainant, Agila Gabula (PW5) was a pupil of Yudaya Islamic School. The appellant, Kato Sula, was her teacher in primary two at the same school. On 6/8/1995, at about 10.30 a.m., the appellant sent for Agila Gabula to go to his residence which was near the school. Agila was accompanied by some of her schoolmates who included Nabalera Justine (PW1) and one Habibu Kalema, a child and young uncle of Agila. The appellant chased away the other children including Nabalera Justine but Habib Kalema refused to go away until the appellant persuaded him to go and collect a Koran from a nearby mosque. When the appellant was alone with Agila Gabula, he pulled her into his room where he demanded to have sexual intercourse with her. She resisted. The appellant eventually overpowered her and defiled her. After the defilement, Agila returned to school and later went to her grandfather's home where she lived.
Next day she refused to go back to school. This prompted her grandfather, Jaffali Kimera, (PW2) to inquire why she had not gone to school. She replied that she feared to go to school because the previous day the appellant had defiled her. Jaffali reported the matter to authorities who eventually arrested the appellant. He was charged with and prosecuted for the offence of defilement. At the trial he raised an alibi to the effect that he was not at the school where Agila Gabula was defiled. He testified and called a witness Fatuma Bukirwa (DW2) to confirm that he was a student in another school. He claimed that because he resembles his brother Wasswa who taught at Yudaya School, he was mistaken for that brother.
The assessors and the trial Judge disbelieved the appellant but believed the prosecution. They found that there was corroboration of the evidence of the children witnesses Justine Nabalera and Agila Gabula. The appellant was convicted and sentenced and his appeal to the Court of Appeal was dismissed. He then appealed to this Court on two grounds. The two grounds in effect complained that the prosecution evidence was insufficient and in particular that the evidence did not conclusively establish the identity of the appellant as the person who defiled Agila Gabula.
The appeal was argued by Mr. Kafuko-Ntuyo, Counsel for the appellant. We did not call upon Ms. Khisa, the Principal State Attorney, to reply because we were satisfied that there was overwhelming evidence against the appellant and that the objections raised in the memorandum of appeal and the arguments thereon had no merit.
The learned trial judge and the Court of Appeal accepted the evidence that the appellant had taught Agila Gabula and Nabalera Justine in primary two for some time. Agila had therefore known the appellant and his twin brother Wasswa so well that she (Agila) was able to describe the shape of the head of the appellant as being distinct and different from that of Wasswa. There was no crossexamination on the evidence of Nabalera to the effect that Agila and herself were accompanied by other schoolmates when they went to the appellant's residence from where the appellant himself got a cassava stick and chased the rest of the children away. This happened in midmorning. Defense counsel did not challenge Nabalera's evidence, by way of cross-examination, which clearly means that the identity of the appellant in so far as Nabalera's evidence goes was not challenged. The evidence of Jaffali was to the effect that he knew the appellant very well as a teacher at Yudaya School where the two gilrs were pupils. He testified that after Agila complained of defilement, he and J. Lule, PW3, an L.C. Chairman, went to the residence of the appellant and discovered that the appellant had removed all his belongings and fled the area.
The learned trial judge in a well reasoned judgment found the prosecution witnesses, especially Agila, to be impressive. He found the appellant and his witnesses especially Fatuma Bukirwa to be liars. He found her to be shifty and called her a consummate liar. He found that there was corroboration of the evidence of Nabalera and of Agila. The Court of Appeal re-evaluated the evidence and accepted the conclusions of the learned trial judge.
We are here now faced with two concurring findings of fact by the two courts below. In order for us to interfere with those findings, we had to be persuaded that either one of the courts or both of them erred in their findings. We note that the trial judge relied on the impressive demeanour of Jaffali (PW2) and believed him. On the other hand the Judge noted that Bukirwa Fatuma's (DW2) demeanour was not impressive as she was shifty in the witness box. She was a liar. In cases such as this appeal, where the element of demeanour of witnesses for both the state, in this case Jafali, and for the accused, such as Fatuma (DW2) has influenced the trial judge and the assessors, in assessing the credibility of witnesses, we can only interfere if the appellant can satisfy us that either the trial judge and or the Court of Appeal erred in a material respect see: Kifamunte Henry vs. Uganda - Sup. Court, Cr. Appeal 10/98 and Pandva vs. R. (1957) EA. 336. We were not persuaded that the courts or either of them erred.
In the circumstances our opinion was that the two grounds must fail. That is why we dismissed the appeal.
Before we take leave of this case, there are two errors which we have noticed on the record that we must correct.
The first matter is the issue of procedure in the conduct of voire dire. The inquiry, which is conducted before a child of tender years is allowed to testify, is intended to test first whether the child witness understands the nature of an oath and, secondly if not, it is sufficiently intelligent to understand the duty of speaking the truth. A trial judge's note should reflect this.
The record of the trial court in the instant case on the conduct of the voire dire in respect of Nabalera appears as follows:- "Voire Dire.
Questions put to the young witness about whether or not she understands the nature of oath. She does not.
Court: Questions put to test intelligence of young witness and capacity to tell the truth. She says that those who tell lies go to Hell? She understands the duty of telling the truth.
She will therefore give an unsworn testimony".
The witness then gave her evidence after which Serwanga counsel for the accused said:
The learned judge followed the same pattern in conducting the voire dire in respect of Agila Gabula (PW5). The record appears as follows:
Question put to her. She does not understand the nature of an oath. So cannot give a sworn testimony.
Questions put to witness unless she appears to understand the duty of telling the truth. She knows that people who tell lies are burnt. She goes to the mosque every Friday.
She therefore will give an unsworn statement".
We would like to point out that the procedure adopted is not quite in keeping with the common practice. There are normally two ways of recording proceedings of the voire dire. The first method is where the trial judge writes questions down and each question is followed by the answer to it. The answer is written in the first person singular in the words spoken by the witness. Questions and answers are put in a dialogue form. The conclusions of the judge are made after that dialogue.
The second practice is not to record the questions put by the judge but to write down in a first person singular and in a narrative form the answers given by the young witness leaving the questions out unless a particular question has to be recorded. Thereafter the trial judge records his conclusions.
The error in the instant case is that neither the questions put to, nor the answers given by, the child witnesses on the nature of the oath were recorded, and the answers in the second inquiry were paraphrased.
Most of the cases which we have come across show that the common procedure is to record the witness's answers on both inquiries in a narrative form: See Gabriel S/o Maholi vs. R. (1960) EA.159 at page 160 F to G. See also section 38(3) of the Trial on Indictments Decree, 1971 (TID) and section 11 of the Oaths Act (cap.52).
The second point we wish to discuss is whether or not a child witness who gives evidence not on oath is liable to cross- examination. There appears to be a wide spread misconception that a child witness who is allowed to give evidence without taking oath because of immature age, should not or cannot be cross-examined. This is reflected in the judgment of the Court of Appeal where the learned Justices stated (page 5) that:-
".............................. we note on the record that the complainant made an unsworn statement but was later cross- examined by the defense Counsel. We think that this was irregular because a witness who gives a statement not on oath is not subject to cross-examination as there is no oath binding him or her".
The learned justices did not refer to any authority in support of that view which, we think, with the greatest respect, is erroneous.
Neither counsel for the appellant nor the Principal State Attorney was aware of any authority for the view expressed by the Court of Appeal. When we drew the attention of the two learned counsel to the provisions of section 70 of TID 1971 and Ss.133 and 136 of the Evidence Act, they appeared to agree that child witnesses who give evidence not on oath are liable to be cross-examined. But both stated that the practice of not cross-examining such child witnesses is wide-spread. It is because of the widespread misconception that we make these observations which should in future be followed by all courts in this country.
Section 38 of the Trial on Indictments Decree, 1971 reads as follows:-
"38. (1) Every witness in a criminal cause or matter before the High Court shall be examined upon oath and the court shall have full power and authority to administer the usual oath.
(3) Where, in any proceedings a child of tender years called as a witness does not, in the opinion of the court, understand the nature of an oath, his evidence mav be received, though not given upon oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth:"
There is nothing in S.38 (3) to suggest that a child witness should not be cross-examined on his or her unsworn evidence.
Trials in the High Court are regulated by the TID, 1971. Section 70 thereof reads as follows:-
"70. The witnesses called for the prosecution shall be
subject to cross-examination bv the accused person or his advocate and to re-examination by the advocate for the prosecution" (emphasis added).
Clearly this section does not exclude from liability to cross- examination any child witness for the prosecution. This is the principal authority for saying that child witnesses who give evidence not on oath should be cross-examined to test the veracity of their evidence.
It would appear that the misconception arises from a view that because accused persons are not cross-examined whenever they make unsworn statements in their defense, child witnesses who do not take the oath should be treated in the same way. Such a view is oblivious of the peculiar protection given to an accused person in the form of a right to make an unsworn statement with no liability to be cross-examined.
By section 41 of the TID it is provided:
"Every person indicted for an offence shall be a competent witness for the defense at every stage of the proceedings provided.
- to (c)...
(d) Nothing in this section shall affect any right to the accused person to make a statement without being sworn".
The right of an accused person not to be cross-examined when he makes a statement not on oath was originally enshrined in S.210 of the Criminal Procedure Code Act as follows: -
"210 (1) At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defense, the court shall again explain the substance of the charge to the accused and shall inform him that he has the right to give evidence on oath from the witness box and that, if he does so. he will be liable to cross-examination, or to make a statement not on oath from the dock".
When the TID was enacted in 1971, the above provisions were modified and re-enacted in sections 71 and 72 of the TID. In the process of the modification, and re-enactment, and for unknown reasons, the expressions—"from the witness box and that, if he does so, he will be liable to cross-examination “and " from the dock " were omitted in the present sections 71 and 72 of the TID.
Thus by section 71 (2) of the TID, it is provided: - "when the evidence of the witnesses for the prosecution has been concluded and the statement or evidence, if any, of the accused person before the committing court has been given in evidence, the court, if it considers that
there is sufficient evidence that the accused person or any one or more of several accused persons committed the offence, shall inform each accused person of his right,
- to give evidence on his own behalf;
- to make an unsworn statement;
- to call witnesses in his defense."
The relevant part of S.72(l) reads:-
"..................... , the accused person may then give
evidence on his own behalf or make an unsworn statement — "
In spite of the absence of the expressions referred to above, it is within our experience that the long established procedure previously set out in S.210 of the Criminal Procedure Code is followed in trials in the High Court. We may add that section 126(1) of the Magistrates' Courts Act, 1970 still retains provisions identical to those in S.210 of the Criminal Procedure Code (supra). This clearly illustrates the point.
Moreover in the provisions (sectional,71,72) it is clear that evidence given on oath by an accused person is distinguished from his "unsworn statement" which is not described as evidence. On the other hand, the unsworn testimony of a child witness is described as evidence in all the relevant provisions.
By virtue of S. 116 of the Evidence Act and S.38 (3) of TID, 1971 children are competent witnesses and as such sectionil33 and 136 of the Evidence Act apply to them. They read as follows:- By S.133, "The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the court.
"136. (1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling them so desires) re-examined".
We may add that the Oaths Act augments the view that the unsworn statement in court by a child is evidence.
Sections 11 of the Oaths Act reads as follows:-
"11. (1) Anything to the contrary herein above in this Act notwithstanding, if it shall appear to a court or officer before whom an oath other than a promissory
oath is to be taken or affirmation other than
a promissory affirmation is to be made that the person about to take the oath or make the affirmation ought not:-
- by reason of immature age; or
- for any other sufficient cause,
to be allowed to take the oath or make the affirmation as aforesaid, it shall be lawful for the court or officer, if the court or officer shall in its or his free discretion so think fit, to allow such person, in lieu of taking the oath
or making the affirmation, to give evidence----------------------------------------
without oath or affirmation.
- It shall be a requirement of the law in any case falling within the provisions of the preceding subsection for the court or officer to enter in the minutes of the proceedings as the case may be, a note of the fact of the evidence having been given or made without oath or affirmation, and of the reasons therefore".
Furthermore in Uganda, all trials of cases are subject to the provisions of article 28 of the Constitution. This article is about fair hearing. The virtue of fair hearing is that a party in a cause should be in a position to controvert his or her opponent either by contrary evidence or by cross-examining a witness who gives evidence against him so as to test the veracity of the witness who testifies. The article provides in part:-
"28. (1) In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law.
- Every person who is charged with a criminal offence shall:-
(a) to (f)---------------------------------
(g) be afforded facilities to examine witnesses and to obtain the attendance of other witnesses before the
These provisions are intended to ensure that an accused person receives a fair trial. There can be no fair trial if an accused is denied the right to cross-examine witnesses who are produced to testify against him or her. The essence of cross-examining a witness of the opposite party is to test the credibility of that witness.
We direct that all courts in this country must follow the guidelines we have given in this judgment. We also direct that the Registrars and all officials concerned should ensure that these guidelines are circulated to all Courts and to the Director of Public Prosecutions.
Dated at Mengo this 12th day of January 2001.
JUSTICE OF THE SUPREME COURT
JUSTICE OF THE SUPREME COURT
JUSTICE OF THE SUPREME COURT
JUSTICE OF THE SUPREME COURT
JUSTICE OF THE SUPREME COURT