THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
(CORAM: ODOKI., CJ, TSEKOOKO, MULENGA, KANYEIHAMBA
CRIMINAL APPEAL NO. 10 OF 2006
BAGATENDA PETER :::::::::::::::::::::::::::::: :::: APPELLANT
UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
[Appeal from the decision of the Court of Appeal of Uganda at Kampala: G.M. Okello,, Mpagi Bahigeine, and Twinomujuni, JJA, dated31st January 2006 in Criminal Appeal No. 155 of 2001].
JUDGMENT OF THE COURT.
In this Court the appellant relied on the following three grounds of appeal:-
Counsel for both sides filed written submissions. In his written submissions, Mr. Alli Gabe the appellant’s counsel, dwelt on the 2nd ground and the appellant’s defence of alibi and submitted that the prosecution had failed to disprove the alibi by clear cogent evidence. It was his submission that the prosecution evidence was purely circumstantial and that it contained serious inconsistencies and contradictions. He criticized the trial Court for believing that evidence while ignoring the evidence of the appellant with regard to his alibi. He contended that the Court of Appeal had failed in its duty to re-evaluate the evidence as a whole, and was wrong to find that the trial court had properly evaluated the evidence.
Counsel for the appellant contended that the Court of Appeal had failed to properly re-evaluate the evidence as a whole and give due consideration to the Appellant’s defence of alibi. In his view, both the trial Judge and the Court of Appeal had not followed the guidelines set by the Supreme Court in BOGERE & ANOTHER VS UGANDA, CR. APP. No. 1 OF 1997 where this court laid the following guidelines as regards what the prosecution has to prove in cases where an accused person raises the defence of alibi:
Counsel therefore submitted that this court should re-evaluate the evidence as per the guidelines.
On the other hand, Mr. Waninda, Senior State Attorney, for the State, did not agree with the above submissions of counsel for the appellant and fully supported the findings and decisions of the Court of Appeal. He submitted that that court had fully and properly re-evaluated the evidence and applied the law.
The prosecution called PW.2 who was an eye witness to the crime. Although he was a person of tender age and a voire dire had to be conducted, the trial judge was impressed by this witness. He testified that he knew the accused and had known him for about 4 years. On the material day, 19th July, 2000, at about 1 pm while in the company of the deceased, he saw the appellant emerge from a bush, got hold of the deceased and declared “I am going to kill you”. He saw him cut off the deceased’s head. In the main this evidence was not seriously dented in cross examination. The witness seemed to have been truthful, leading the trial judge to record:
The trial judge was alive to the accused’s defence of alibi and of the legal guidelines applicable to that defence. At page 5 of her judgment, she stated this:
In our view the trial judge correctly addressed the defence of alibi and the law. She then proceeded to evaluate the evidence minutely, starting with the evidence of PW2 who witnessed the crime and saw the accused cut off the head of the deceased, to that of PW6 to whom the appellant gave information leading to the recovery of the head of the deceased. The trial judge found, quite rightly in our view, that the appellant would not have known the location where the deceased’s head was buried, or where the murder weapon was, unless he had committed the crime himself and hidden them. She found this evidence to be corroborative of the evidence of PW2, and effectively negativing the defence of alibi.
The appellant contended that the Justices of the Court of Appeal had erred in law when they failed to properly subject the evidence on record to fresh scrutiny and evaluation. Having studied the evidence on record ourselves and read the judgment of the trial judge who saw and heard the witnesses in court, we are not persuaded by counsel for the appellant that the Court of Appeal failed in any way in this regard. The learned Justices were right to find that the learned trial judge had properly evaluated all the evidence on record and come to the correct decision. In the circumstances we find no merit in this ground and it therefore fails.
The appellant’s counsel in his written submissions seems to have cursorily addressed ground one of the appeal. He submitted that the “Appellant appeared to have not been properly represented and guided on the evidence in relation to his mental status at the time it was alleged he killed Pauline Nasiwa.”
The basis for this submission seems to be the horrific nature of the crime. Counsel contends that a sane person could not have committed such a crime and in the manner he did it.
The learned Senior State Attorney, on the other hand, submitted that the defence of insanity had not been raised at the trial, nor had the appellant adduced evidence as to the state of his mental health. He argued further that the burden of proving diminishing responsibility lies on the person raising the defence, and the appellant had failed to do so. The court was therefore correct not to make any finding on the mental faculties of the appellant. He invited this Court to find no merit in this ground.
We agree with the learned Senior State Attorney that, the defence of insanity was never raised by the appellant or anyone else whether at the time of his arrest or at his trial. Had it been raised at the time of his arrest, he would have been subjected to medical/mental examination. The accused himself did not indicate in any way that he was mentally sick.
The second point at which his mental state would have been brought up was at the trial. The accused chose to make an unsworn statement in court again denying the offence and making allegations of torture by police.
We agree with the Court of Appeal that the matter of insanity seems to be raised only as an one word. The essence of the defence of insanity is that the accused person did not know what he was doing, or if he did, he did not know that it was wrong. This is the gist of the McNaughton Rules which have been adopted and applied in the courts of Uganda – See R-Vs- MAGATA S/o KACHEHAKANA  EA 330. It is also important to bear in mind the provisions of sections, 10,11, and 194 of the Penal Code with regard to (i) the presumption of sanity, (ii) the defence of insanity and (iii) findings of diminished responsibility in murder cases.
The conclusion as to the state of mind of the accused person may be discerned from the evidence on record, be it from the prosecution side or the statement made by the accused person to the police, as was done in the Magata case (supra).
In this particular case, there does not seem to be evidence on record upon which a conclusion of insanity could be reached. The Court of Appeal considered this matter and found that the behaviour of the appellant after the commission of the offence was not consistent with the behaviour of a person who would be suffering from insanity. The Court of Appeal dealt with the matter thus;
In his written submissions, the learned Senior State Attorney also submitted that the appellant was not, and could not have been, suffering from diminished responsibility, given his conduct after the commission of the crime. He supported the findings and decision of the Court of Appeal. He further argued that raising the defence of diminished responsibility would be inconsistent with his defence of total denial of the commission of the offence. In his view, the appellant would in effect now be saying that he committed the offence but was suffering from diminished responsibility at the time.
We agree with the Court of Appeal that on the evidence on record, there was no basis for the Court to consider the defence of insanity. It was never raised at the trial and no evidence supports it. In SOHAN SINGA s/o LAKHA SINGA VS R  EA 28, the defence of insanity was raised at the opening of the trial and an order was made for the accused to be remanded in custody pending medical examination. But at the subsequent trial, the defence of insanity was not pursued and the defence declined to call the psychiatrist who had examined the accused. After his conviction, the appellant and his counsel applied for leave to call evidence of another psychiatrist who had examined the appellant after the trial on the ground that there had been no sufficient inquiry whether the appellant was of unsound mind and incapable of making his defence.
The Court of Appeal for East Africa rejected that application on the ground, inter alia, that since the question of the Appellant’s fitness to plead had not been pursued at the trial, the trial judge could not be faulted for assuming that the question of the appellant’s fitness to plead was no longer an issue.
That Court stated at p. 30:
down by this Court in