Walugembe Henry and Ors v Uganda [2005] UGSC 22 (1 November 2005)

# Walugembe Henry and Ors v Uganda [2005] UGSC 22 (1 November 2005) [ Share this document on WhatsApp opens in new tab __](https://api.whatsapp.com/send?text=Walugembe+Henry+and+Ors+v+Uganda+%5B2005%5D+UGSC+22+%281+November+2005%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2005%2F22%2Feng%402005-11-01) [ Share this document on X opens in new tab __](https://twitter.com/intent/tweet?text=Walugembe+Henry+and+Ors+v+Uganda+%5B2005%5D+UGSC+22+%281+November+2005%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2005%2F22%2Feng%402005-11-01) [ Share this document on Facebook opens in new tab __](https://www.facebook.com/sharer/sharer.php?u=https://ulii.org/en/akn/ug/judgment/ugsc/2005/22/eng@2005-11-01) [ Share this document on LinkedIn opens in new tab __](https://www.linkedin.com/sharing/share-offsite/?url=https://ulii.org/en/akn/ug/judgment/ugsc/2005/22/eng@2005-11-01) [ Share this document by email __](mailto:?subject=Take%20a%20look%20at%20this%20document%20from%20ULII:%20Walugembe%20Henry%20and%20Ors%20v%20Uganda%20\[2005\]%20%E2%80%A6&body=https://ulii.org/en/akn/ug/judgment/ugsc/2005/22/eng@2005-11-01) __Save [ Download RTF (107.5 KB) ](/en/akn/ug/judgment/ugsc/2005/22/eng@2005-11-01/source) Toggle dropdown * [Download PDF](/en/akn/ug/judgment/ugsc/2005/22/eng@2005-11-01/source.pdf) Report a problem ##### Is there something wrong with this document? Problem category *Incorrect informationMissing informationNo PDF downloadDocument is emptyDocument is not accessible on my deviceOther What's the problem? * Your email address * CancelReport problem __ * Share * [ Download RTF (107.5 KB) ](/en/akn/ug/judgment/ugsc/2005/22/eng@2005-11-01/source) * [Download PDF](/en/akn/ug/judgment/ugsc/2005/22/eng@2005-11-01/source.pdf) * * * * * Report a problem __ ##### Walugembe Henry and Ors v Uganda [2005] UGSC 22 (1 November 2005) Copy citation __Save * __Document detail * __Related documents * __Citations \- / 1 Citation Walugembe Henry and Ors v Uganda [2005] UGSC 22 (1 November 2005) Copy Media Neutral Citation [2005] UGSC 22 Copy Court [Supreme Court of Uganda](/en/judgments/UGSC/) Judgment date 1 November 2005 Language English Summary ###### Flynote * Criminal law|Evidence Law|Evaluation of Evidence Read full summary __ ##### Ask AI Ask questions and understand this document faster using AI. __Ask AI * * * Skip to document content **IN THE SUPREME COURT OF UGANDA AT MENGO** **CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA, KANYEIHAMBA JJ.S.C.** _**C**_**RIMINAL APPEAL NO. 39 OF 2003** **BETWEEN** 1. **Walugembe Henry]** 2. **SSALI PAUL SANDE ]:::::::::::::::::::::::::::::::APPELLANTS** 3. **KAMANZI** _**J**_**OSEPH ]** **AND** **UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT** _**(Appeal from judgment of the Court of Appeal (Okello, Mpagi-**__B_ _**ahigeine & Twinomujuni JJ.A) at Kampala, in Criminal Appeal No.60/01 dated 12.12. 2003).**_ **_JUDGMENT OF THE_** _**_C_**_** _OURT._** Walugem _b_ e H _e_ nry, Ssali Paul Sand _e_ __ and Kamanzi Jos _e_ ph, h _e_ reinafter r _e_ f _e_ rr _e_ d to as the 1st, 2nd and 3rd app _e_ llants r _e_ spectiv _e_ ly, we _re_ __ indicted and convicted _b_ y the High Court of Uganda (Wangutusi Ag. J.) sitting at Masaka, on three counts of ro _bb_ ery contra _r_ y to sections 272 and 273(2) of the Penal Code Act. They were each sentenced on every count to suffer death, _b_ ut the sentences on the second and third counts were suspended. Their appeals to the Court of Appeal were dismissed. They have now appealed to this Court. A summary of the facts on which their convictions were _b_ ased is as follows. On 10 9. 99, at a _b_ out 8 p.m., employees of Minnesota International Health Volunteers (M.I.H.V), an NGO engaged in pu _b_ lic h _e_ alth _e_ ducation, trav _e_ ling in a Land Rov _e_ r reg. no. UAA 937 M fell in an am _b_ ush mounted _b_ y ro _bb_ ers at Rwensiri village along Matete-Sem _b_ a _b_ ule road. The ro _bb_ ers ordered them out of the v _e_ hicle and ro _bb_ ed them of personal property, including money, a watch and sho _e_ s as well as th _e_ __ said v _e_ hicl _e.___ During th _e_ __ ro _bbe_ ry th _e_ ro _bbe_ rs were armed with what appeared to _b_ e a gun and a panga, with which one of them repeatedly hit the victims. The ro _bb_ ers drove off in the vehicle, which contained equipment that the victims had _b_ een using for pu _b_ lic video shows at Nondo Rwe _b_ itakuli, and shs.160,000/-, which the driver had hidden under a seat when he sited the ro _bb_ ers. They left the victims at the scene of crime. Su _b_ sequently, the vehicle was found a _b_ andoned, _b_ ut _b_ oth the equipment and the money had _b_ een removed from it. On the following day, the police at Kinoni Police Post received information that the 3rd appellant and others were preparing to collect hidden stolen articles or to go on a "ro _bb_ ery mission". The police monitored the group's movem _e_ nts until _e_ vening when they laid am _b_ ush in Kyasonko swamp, at a spot suggested _b_ y the informer. At a _b_ out 10.30 p.m., the 2nd and 3rd appellants travelling in a hired vehicle (with a woman called Rose and Sula, the driver), fell into the am _b_ ush and were arrested. The 3rd appellant owned up to the police that they had come to collect articles they had hidden in the swamp. Initially he l _e_ d th _e_ m to a g _e_ n _e_ rator and a TV set, which were then retrieved from the swamp. Later, he and the 2nd appellant disclosed that there were other items left _b_ ehind. They returned to the swamp with the police and retrieved a video deck, a radio cassette and speakers. All the items _b_ ore the initials M.I.H.V. In the course of recovering those items the two appellants disclosed that they had had a panga during the ro _bb_ ery, _b_ ut a search for it was futile. They also revealed that the 1st appellant had participated in the ro _bb_ ery. The 3rd appellant then led the police to the residence of the 1st appellant in Nyendo. The police searched the 1st appellant's house and found a toy gun and a watch that the appellant admitted was stolen property. Su _b_ sequently, at the police post, the ro _bb_ ery victims identified the recovered generator, TV set, video deck, radio, speakers and watch as articles stolen during the ro _bb_ ery. Also similarly identified, was a pair of shoes the 1st appellant wore upon _b_ eing arrested. In addition, while in police custody, the 1st and 2nd appellants made charge and caution statements, which were admitted in evidence at the t _r_ ial. Each statement amounted to a confession _b_ y the maker and incriminated the other appellants. In defence, each appellant, in an unsworn statement, denied participating in the ro _bb_ ery, and possessing the stolen property, implying that the police planted the property on them. The 1st appellant asserted that he was arrested near Nyendo Police Post while selling second-hand clothes, and not at home as testified _b_ y the police witnesses. The 2nd appellant denied _b_ eing arrested in the police am _b_ ush. He said that policemen and LDUs found him sleeping with his girl friend in a lodge at a _b_ out 1a.m., and arrested him apparently _be_ caus _e_ __ they suspect _e_ d that the tax tickets he produced for identity wer _e_ __ not g _e_ nuine. Th _e_ __ 3rd app _e_ llant agr _ee_ d that h _e_ __ was arr _e_ st _e_ d at a polic _e_ __ road _b_ lock in the night of 11. 9. 99 _b_ ut claimed that he was travelling with his wife to Bukoto in a hired car. He said that the policemen at the road _b_ lock were standing near stolen property found in the area, a _b_ out which he knew nothing. He denied leading the police to retrieve them from the swamp. Both the 2nd and 3rd appellants reiterated their r _e_ pudiation/r _e_ traction of th _e_ conf _e_ ssion stat _e_ m _e_ nts. Th _e_ __ trial court r _e_ j _e_ ct _e_ d each appellant's defenc _e_ __ and accepted th _e_ __ prosecution case. In this Court, the appellants filed separate Memoranda of Appeal through different counsel. The formulations of the grounds of appeal vary, _b_ ut there is much similarity in su _b_ stance. Therefore, rather than reproduce and consider the grounds of appeal as separately formulated, it is expedient and will suffice to consider the issues arising there from as follows — • Whether the Justices of Appeal erred in upholding the finding that • the 1st and 2nd appellants' confessions were admissi _b_ le; o the ro _bb_ ers used or threatened to use a deadly weapon; * Whether the Justices of Appeal failed to re-evaluate the evidence; * Whether the circumstantial evidence against any of the appellants was inconclusive. _**Admissi**_ _b_ _**ility of confession statements.**_ In convicting the appellants, the trial court relied heavily on the written confessions that the 1st and 2nd appellants made to the police. He treated the rest of the circumstantial evidence as corro _b_ oration of the confessions, which had _b_ een retracted/repudiated. The main argument _b_ efore us on the confessions was that the courts _b_ elow wrongly accepted and relied on the confession statements notwithstanding the prosecution's failure to disprove the allegations that the confessions were o _b_ tained th _r_ ough to _r_ tu _r_ e. Secondly, it was su _b_ mitted that the recording of the statements was irregular _b_ ecause (a) they were recorded in English and not in the languages in which the appellants spoke; and _(b)___ they were _b_ oth recorded _b_ y one police officer, to the prejudice of the 2nd appellant whose statement was recorded later. Thirdly, it was su _b_ mitted for the 1st appellant that his statement was also irregular _b_ ecause it was recorded in the presence of the O/C Police. In support of their su _b_ missions, counsel referred us to _**Sewankam**_ _b_ _**o Francis and Others vs. Uganda**_ Cr. App. No.33/01 (SC) and _**Festo Androa Assenua and Others vs. Uganda**_ Cr. App. No. 1/98 (SC). Counsel for the respondent su _b_ mitted that the trial court tested the statements in a trial-within-trial and found that they were _b_ oth made voluntarily, and that _b_ ecause they were detailed in content and corro _b_ orated _b_ y the circumstantial evidence, they were true. He conceded that it was irregular for the same police officer to record the two statements _b_ ut su _b_ mitted that the irregularity was not shown to have prejudiced any of the appellants. In the Court of Appeal, the appellants similarly complained _inter alia_ that the trial judge erred in holding that the statements were made voluntarily and properly admitted in evidence. In their judgment, the learned Justices of Appeal rejected that ground of appeal saying - _**"These statements were meticulously tested**_ _b_ _**y the court during trials within the trial. A1, Walugem**_ _b_ _**e Henry, denied having made any statement. He then changed the story and said that he had made one**_ _b_ _**ecause of the**_ _b_ _**eating. The Judge was therefore correct to find him a liar. A2, Ssali Sande claimed to**_ _b_ _**e illiterate saying**_ _**that he was guided**_ _b_ _**y the police to write his name, yet when asked to read, he read without hesitation. The Judge found his story of torture to**_ _b_ _**e untrue."**_ With th _e_ __ gr _e_ at _e_ st r _e_ sp _e_ ct to th _e_ __ l _e_ arned Justic _e_ s of App _e_ al, w _e_ __ do not shar _e_ th _e_ ir vi _e_ w that th _e_ __ trial court "meticulously t _e_ st _e_ d" if th _e_ __ conf _e_ ssions w _e_ r _e_ made voluntarily. In our vi _e_ w th _e_ __ l _e_ arn _e_ d trial judg _e_ __ did not dir _e_ ct his mind corr _e_ ctly on th _e_ __ law and principl _e_ s gov _e_ rning admission of conf _e_ ssions in _e_ vid _e_ nc _e.___ In particular h _e_ ___e_ rr _e_ d in r _e_ gard to th _e_ __ onus of proof and did not consider th _e_ __ irregular recording of the confessions. The learned Justices of Appeal overlooked or did not appreciate this. We need only ela _b_ orate on the error on the onus of proof, since the irregularity was virtually conceded. Section 24 of the Evidence Act, (Cap.6) provides - _**"A confession made**_ _b_ _**y an accused person is irrelevant if the making of the confession appears to the court, having regard to the state of mind of the accused person and to all the circumstances, to have**_ _b_ _**een caused**_ _b_ _**y any violence, force, threat, inducement or promise**_ _**calculated in the opinion of the court to cause an untrue confession**_ _**to**_ _b_ _**e made."**_ Where an accused person o _b_ jects to the admissi _b_ ility of a confession on the ground that it was not made voluntarily, the court must hold a trial-within-a-trial to determine if the confession was or was not "caused _b_ y any violence, force, threat, inducement or promise calculated to caus _e_ __ an untru _e_ confession to _be_ __ mad _e".___ In such trial-within-trial, as in any criminal trial, th _e_ onus of proof is on the prosecution throughout. It is for the prosecution to prove that the confession was made voluntarily, not for the accused to prove that it was caused _b_ y any of the factors set out in s.24 of the Evidence Act. See _**Rashidi**_ v _**s. Repu**_ _b_ _**lic**_(1969) EA 138. In the instant case, when the two appellants, through their counsel, severally challenged admissi _b_ ility of their respective confessions, on ground that they were tortured, the prosecution assumed the _b_ urden to prove that no acts of torture were inflicted on either of them. We are not satisfied that the learned trial judge had this principle in mind when he ruled that the confessions were made voluntarily. It appears to us that he came to that conclusion more _b_ ecause of his finding that the appellants lied to him a _b_ out torture than on the ground that the prosecution proved that the confessions were made voluntarily. This is what he said in the ruling - _**"The accused... o**_ _b_ _**jected to the tendering of the charge and caution statement. A1, ... in evidence said he never made any statement. That he never signed any and that although he was**_ _b_ _**eaten he made none.**__**_The foregoing alone_**_ _(shows)__**_he was not truthful_**_ _****__b_ _**ecause at the time he instructed counsel to make o**_ _b_ _**jection he said he had made a statement**_ _b_ _**ecause he was**_ _b_ _**eing**_ _b_ _**eaten**_ _b_ _**y the police.**__**_This is enough to show that the accused told lies a_**_ __b__ _**_out the torture._**__**While he said he was tortured**_ _b_ _**y police in the same**_ _b_ _**reath he said he never saw any policeman, He even denies seeing AIP Otto and the interpreter Se**_ _b_ _**wato or Amayo. Yet these are the very fellows he first said forced him to make a statement. This statement is the one he now denies. TT1, TT2 and TT5 testified that the accused was taken**_ _b_ _**y Amayo to Otto who was with Se**_ _b_ _**wato and they took down his statement.**__**_Their evidence remained unchallenged and_**_ __b__ _**_ecause_**_ _**_of_**_ _**_the straight forwarded I_**_ __b__ _**_elieve they did not torture the accused._**__**A2, ... also o**_ _b_ _**jected and said the statement was o**_ _b_ _**tained from him under torture. He did not at that time refer to the torture hanging a**_ _b_ _**rick**_****_**on his testicles. He instead said he had**_ _b_ _**een**_ _b_ _**eaten. What however seemed to**_ _b_ _**e most untruthful was where he said the police officer then guided his hand to write his name since he (accused) did not know how to write. I found this difficult to**_ _b_ _**elieve**_ _b_ _**ecause all the signatures were the same Secondly when he was asked where he signed and read, the "supposed illiterate" read the three names without hesitation and in the order in which they were written. I found this rather strange and incompati**_ _b_ _**le with truthful- ness.**__**_While the story_**_ _**_of_**_ _**_the accused was tainted with untruthfulness, the prosecution witnesses in the trial within trial were so consistent_**_ _**_and straight forward that they could only_**_ __b__ _**_ut have_**_ __b__ _**_een telling the truth_**_ _**"**_(Emphasis is add _**e**_ d). It is o _b_ vious to us from the ruling, that the learned trial judge proceeded on the erroneous premise that the appellants had to prove that they were tortur _e_ d. This is so _be_ cause in respect of each statement, the learned judge in effect, held that since he did not _b_ elieve the appellant's story, the prosecution evidence was unchallenged and therefore true. That is an o _b_ vious misdirection. We think that if the learned judge had evaluated the evidence _b_ earing in mind that the onus was on the prosecution, he may well have concluded that the prosecution had not discharged the onus. In that regard, counsel for the appellants argued that notwithstanding that the trial judge dis _b_ elieved the appellants, the possi _b_ ility of torture was not ruled out _b_ ecause no medical evidence was adduced to negative the allegations of torture. While we do not wish to give the impression that only medical evidence can negative allegations of torture, we think there is some su _b_ stance in this argument. It is a routine practice to su _b_ ject an accused person taken into police custody, to m _e_ dical examination and su _b_ s _e_ qu _e_ ntly to adduce medical evidence of his/her physical and mental condition, particularly in trials of s _e_ rious crim _e_ s. In appropriat _e_ __ cas _e_ s, this h _e_ lps to resolv _e_ __ pertinent disputes such as the one at hand or in respect of criminal lia _b_ ility on account of age or mental status. In the instant case where it was alleged _inter alia_ that one of the appellants was sta _bb_ ed and unde _r_ went medical treatment, such medical evidence would most likely have helped to either support or _b_ elie the allegation. It is noteworthy that medical evidence on PW3's injuries was adduced, _b_ ut surprisingly, none was adduced in respect of any of the appellants, and the omission was not explained. In _**Sewankam**_ _b_ _**o and others vs. Uganda**_ Cr. App. No. 33/01 (SC), this Court considered similar issues and had this to say - _**"...there are other unsatisfactory features which affect the voluntariness of these confessions. First, we think that it is irregular for one police officer to record alleged confession statements from two suspects charged with the same offence arising from the same incident. The temptation on the part of the police man to use contents of one statement to record a su**_ _b_ _**sequent statement cannot**_ _b_ _**e ruled out. In the instant case we note that AIP Otim recorded the alleged confession of the second appellant after he had recorded a similar confession from the first appellant. Second, the same police officer apparently did not have a Luganda interpreter to interpret communication**_ _b_ _**etween him and appellants. ... Third, all the appellants claimed that they were assaulted**_ _b_ _**y the police**_ _b_ _**efore they were made to sign .... the alleged confessions. Indeed the first appellant claimed that he was assaulted and injured**_ _**on the left leg which was treated**_ _b_ _**y Dr. Ssekitoleko. Strangely enough the prosecution did not adduce any evidence of medical examination in respect of all the appellants. No explanation was given. In the circumstances, with all due respect, the Court of Appeal misdirected itself to say, as it did, that the learned trial judge properly admitted the appellants' confession statements in evidence."**_ We are of a similar view in the instant case. We think that the com _b_ ination of the trial judge's misdirection on the onus of proof, and the non-adherence to the guidelines on recording of confessions as set out in F _**esto Androa Asenua and others vs. Uganda**_(supra), on the part of the police officer who recorded the said confessions, makes it unsafe to uphold the admission of the confession statements in evidence. The Court of Appeal erred in upholding the trial judge's ruling that the confession statements were admissi _b_ le. We accordingly allow the grounds of appeal on that issue. We hold that the 1st and 2nd appellants' confession statements were inadmissi _b_ le and should not have _b_ een relied upon in convicting the appellants. We now have to consider if, without the confessions that the courts _b_ elow relied on, the remaining evidence can sustain the convictions of the appellants or any of them. _**Evidence against each appellant**_ The fact of the ro _bb_ ery was proved _b_ eyond any dou _b_ t. What we have to consider is whether there is conclusive proof that the appellants were the ro _bb_ ers. As against the 1st appellant, the remaining evidence is that upon his arrest at his residence, he was in possession of two articles, a watch and a pair of shoes, which w _e_ r _e_ __ stol _e_ n from the ro _bb_ ery victims. Similarly, as against the 2nd and 3rd appellants, the remaining evidence is that they were arrested while on a mission to retrieve articles stolen during the ro _bb_ ery. Counsel for the 1st appellant argued that the shoes found on him were not positively proved to _b_ e property stolen during the ro _bb_ ery. Counsel, however, made no comment on the watch. On the other hand, the respective counsel for the 2 and 3 appellants argued that there was no conclusive evidence that the appellants led the police to the articles, as the police already knew the location of the articles and arrested the appellants _b_ efore they retrieved the articles from the swamp. According to that argument, it was not proved _b_ eyond _r_ easona _b_ le dou _b_ t that the articles were in the possession of the two appellants or that when the appellants fell into the police am _b_ ush they were going to retriev _e_ __ th _e_ __ stol _e_ n articl _e_ s. In our view the evidence that the appellants were found in possession of articles stolen during the ro _bb_ ery is overwhelming. The learned trial judge _b_ elieved the police witnesses who testified that they found the watch, Exh.P5, on a ta _b_ le in the house of the 1st appellant, and that when they were taking him away under arrest, he first asked and was allowed to put on shoes, Exh.P8. The watch and the shoes were su _b_ sequently identified first at the police station and later in court during th _e_ __ trial, as articles stolen, respectively from Ignatius Ka _b_ uye, PW3, and Polisio Ssonko, PW4. The appellant offered no explanation of innocent possession of those articles. Similarly, the trial court accepted the evidence of the same police witnesses that when the 2nd and 3rd appellants fell into the police am _b_ ush, th _e_ y own _e_ d up and l _e_ d the police party to the several articles hidden in the swamp, which articles were conclusively proved to _b_ e property of M.I.H.V that had _b_ een in the vehicle when the ro _bb_ ers drove off after the ro _bb_ ery. Although it appears from the evidenc _e_ __ that th _e_ __ 3rd app _e_ llant play _e_ d a l _e_ ading rol _e_ __ in th _e_ __ r _e_ cov _e_ ry of the articles, after the recovery of the first items, i.e., the generator, Exh.P1, and the TV set, Exh.P2, the 2 appellant participated in disclosing that some other items were left _b_ ehind, which led to the recovery of the d _e_ ck Exh.P3, th _e_ __ radio Exh.P4, and two speakers Exh.P6. He rej _e_ ct _e_ d th _e_ __ def _e_ nce that the articles were planted on the two appellants. The Court of Appeal upheld the trial judge's decision and we have no reason to fault that. Accordingly, we are satisfied from the evidence that when the police intercepted the 2nd and 3rd appellants, they w _e_ re _b_ oth on a mission to collect those articles, which leads to an irresisti _b_ le inference that _b_ oth participated in hiding the articles in the swamp. We therefore hold that the property was in their constructive possession. Under the doctrin _e_ __ of r _e_ cent possession, if a person is found in possession of property that was recently stolen, a presumption of fact arises that such person is either the thief or a receiver with knowledge that the property was stolen. The presumption may _b_ e re _b_ utted _b_ y credi _b_ le explanation of innocent possession of the property. In _**Kantilal Jivraj and Another vs. R**_(1962) EA 6, at p. 7 the Court of Appeal for Eastern Africa said - _**"It is of course well esta**_ _b_ _**lished, ... that a court may presume that a man in possession of stolen goods soon after the theft is either the thief, or has received the goods knowing them to**_ _b_ _**e stolen, unless he can account for his possession. ... This is an inference of fact which**_ _**'may**_ _b_ _**e drawn as a matter of common sense from other facts...'**_ _**It is merely an application of the ordinary rule relating to circum­stantial evidence that the inculpatory facts against an accused must**_ _b_ _**e incompati**_ _b_ _**le with innocence and incapa**_ _b_ _**le of explanation upon**_ _**any other reasona**_ _b_ _**le hypothesis than that of guilt. According to the particular circumstances, it is open to a court ... to hold that unexplained possession of recently stolen articles is incompati**_ _b_ _**le with innocence.**___B__ _**_ut guilt in this context may_**_ __b__ _**_e guilt either_**_ _**_of_**_ _**_stealing or_**_ _**_of_**_ _**_receiving the articles in question._**__**"**_(Emphasis is added) In _**Andrea O**_ _b_ _**onyo and Another vs. R**_(1962) EA 542, th _e_ __ same court fully consid _e_ red and r _e_ viewed the doctrine of recent possession, and at p. 549 had this to say on the question of determining the offence to _b_ e inferred in different scenarios - _**"When a person is charged with theft and, in the alternative with receiving, and the only evidence connecting him ... is the recent possession of the stolen property, then if the only reasona**_ _b_ _**le inference is that he must have either stolen the property or received it knowing it to**_ _b_ _**e stolen, he should**_ _b_ _**e convicted either of theft or of receiving according to which is more pro**_ _b_ _**a**_ _b_ _**le or likely in the circumstances. He is not entitled to**_ _b_ _**e acquitted altogether**_(merely due to the dou _b_ t on which of the two)... _b_ _**ecause the decision is not**_ _b_ _**etween guilt or innocence**_ _b_ _**ut**_ _b_ _**etween whether he is guilty of theft or receiving...**__B_ _**ut where it is sought to draw an inference that a person has committed another offence from the fact that he has stolen certain articles, the theft must**_ _b_ _**e proved**_ _b_ _**eyond reasona**_ _b_ _**le dou**_ _b_ _**t. If, in such a case, a finding that he stole the articles depends on the presumption arising from his recent possession of the stolen articles such a finding would not**_ _b_ _**e justified unless the possi**_ _b_ _**ility that he received the articles has**_ _b_ _**een excluded. The inference that he stole the articles must**_ _b_ _**e irresisti**_ _b_ _**le."**_ W _**e**_ agree with th _**e**_ proposition in _**Andrea O**_ _b_ _**onyo's case**_(supra) that wh _**e**_ r _**e**_ on a charg _**e**_ oth _**e**_ r than 'th _**e**_ ft or r _**e**_ c _**e**_ iving', th _**e**_ sol _**e e**_ vid _**e**_ nc _**e**_ r _**e**_ li _**e**_ d on as proof that th _**e**_ accus _**e**_ d was at th _**e**_ sc _**e**_ n _**e**_ of crim _**e,**_ is poss _**e**_ ssion of stol _**e**_ n goods soon aft _**e**_ r th _**e**_ th _**e**_ ft, th _**e**_ possi _b_ ility that h _**e**_ only r _**e**_ c _**e**_ iv _**e**_ d th _**e**_ stol _**e**_ n it _**e**_ ms must _b_ _**e**_ rul _**e**_ d out _b_ eyond reasona _b_ le dou _b_ t. An accused person cannot _b_ e convicted of ro _bb_ ery if the presumption is that he _**e**_ ither stol _**e**_ or r _**e**_ ceived the property. The presumption must go _b_ eyond that. It must _b_ e a presumption that the accused is without any r _**e**_ asona _b_ l _**e**_ dou _b_ t th _**e**_ thi _**e**_ f. This Court in _**Izongoza William vs. Uganda,**_ Criminal App _**e**_ al No. 6/98 also reviewed th _**e**_ doctrin _**e**_ of r _**e**_ c _**e**_ nt poss _**e**_ ssion as appli _**e**_ d in other decided cases and invok _**e**_ d it to uphold th _**e**_ conviction of th _**e**_ app _**e**_ llant in that cas _**e**_ for aggravat _**e**_ d ro _bb_ _**e**_ ry on str _**e**_ ngth of _**e**_ vid _**e**_ nc _**e**_ that tw _**e**_ lv _**e**_ hours aft _**e**_ r th _**e**_ ro _bb_ ery, h _**e**_ was found in poss _**e**_ ssion of a _b_ icycle that was o _b_ viously stolen in the ro _bb_ ery and the possi _b_ ility that he was a mere r _**e**_ c _**e**_ iv _**e**_ r was _**e**_ xclud _**e**_ d larg _**e**_ ly _b_ _**e**_ caus _**e**_ he offered no explanation of his possession of the _b_ icycle. The doctrine was also applied in _**Oryem Richard and Another vs. Uganda,**_ Criminal Appeal No. 2/02 (SC). We now turn to consider if in the instant case the possi _b_ ility that the appellants were only receivers was excluded, and if the inference that they participated in the ro _bb_ ery is irresisti _b_ le. The time that lapsed _b_ etween the ro _bb_ ery and when the appellants were found in possession of the stolen articles was so _b_ rief as to make the possi _b_ ility that the articles changed hands too remote. The ro _bb_ ery occurred in the night of 10. 9. 01 and in the night of the following day the 2nd and 3rd appellants were intercepted on the way to retrieve the articles hidden in the swamp, and thereafter the 3rd appellant led the police to the 1 appellant who was in possession of the watch and the sho _e_ s. S _e_ condly, the articles, particularly those mark _e_ d with th _e_ __ initials MIHV, w _e_ r _e_ __ the kind that would not have _b_ een sold off or otherwise disposed of readily. Thirdly, it is difficult to _b_ elieve that if they were mere receive _r_ s they would not say so when faced with the capital cha _r_ ge of aggravated ro _bb_ ery, even if it involved admitting the offence of receiving. Each simply denied possession and relied on the implicit allegation that the police planted the stolen articles on him, which in our view the learned trial judge rightly rejected. We are satisfied that the possi _b_ ility that the appellants were mere receivers is without any reasona _b_ le dou _b_ t excluded. We agree with the concurrent finding of the courts _b_ elow that all thre _e_ __ app _e_ llants participat _e_ d in th _e_ __ ro _bbe_ ry. _**Deadly weapon**_ Th _e_ __ last issue is whether the offence committed was simple or aggravated ro _bb_ ery. The latter is constituted if a deadly weapon is used or threatened to _b_ e used in the course the ro _bb_ ery. The arguments raised for the appellants in this regard we _r_ e (a) that there was insufficient evidence to p _r_ ove that the ro _bb_ ers had a deadly weapon which they used o _r_ __ threatened to use, and _(b)_ that the Court of Appeal misdirected itself on evid _e_ nc _e_ __ wh _e_ r _e_ __ it h _e_ ld that th _e_ ro _bbe_ rs us _e_ d a panga to cut PW3, contrary to the medical evidence that the injuries PW3 sustained were inflicted through use of a stick. Counsel for the respondent su _b_ mitted that _b_ oth courts _b_ elow judiciously considered the issue whether a deadly weapon was used or threatened to _b_ e used and concurrently answered the issue in the affirmative. He maintained that no cause was shown to justify r _e_ considering th _e_ __ issu _e_ __ on a s _e_ cond appeal. It is _e_ vid _e_ nt from th _e_ ir judgm _e_ nt that in considering the issue th _e_ l _e_ arn _e_ d Justic _e_ s of App _e_ al w _e_ r _e_ larg _e_ ly influ _e_ nc _e_ d _b_ y th _e_ cont _e_ nts of th _e_ conf _e_ ssion stat _e_ m _e_ nts, which we hav _e_ h _e_ ld should not hav _e b_ e _e_ n admitted in evidence. However, they also said - _**"We agree with the findings of the learned Judge that the panga was properly identified under the circumstances he outlined. In actual fact PW3 sustained**_ _b_ _**ruises and cuts which would**_ _b_ _**e consistent with use of a panga rather than a piece of wood as alleged. We have no dou**_ _b_ _**t it was a panga that the witnesses saw and thus a deadly weapon."**_ In Section 286 (3) _[formerly s.273 (2)]_ of the P _e_ nal Cod _e_ Act "a d _e_ adly weapon" is d _e_ fin _e_ d as including - _**"any instrument made or adapted for shooting, sta**_ _bb_ _**ing or cutting and any instrument which, when used for offensive purposes, is likely to cause death."**_ It is common knowledge that a panga answers that definition. Furthermore, precedents a _b_ ound in which our courts hav _e_ held that a panga is a deadly weapon. All th _e_ thr _ee e_ y _e_ witn _e_ sses who were victims of the ro _bb_ ery testified that one of th _e_ ro _bbe_ rs was arm _e_ d with a panga and hit th _e_ m with it many tim _e_ s, al _be_ it using the flat sid _e_ of th _e_ panga, and that h _e_ also thr _e_ at _e_ n _e_ d to cut th _e_ driv _e_ r with it. The witnesses were a _b_ le to se _e_ th _e_ w _e_ apon in th _e_ light of th _e_ motor vehicl _e b_ efore the driver was ordered to switch off the light, and must have felt it as they were hit with it. That evidence, which the court _b_ elieved, was ample proof of th _e_ fact that the ro _bb_ ers had and used a deadly weapon. We reject, as farfetched speculation, the suggestion _b_ y counsel for the appellants that what the witnesses saw may have _b_ een an imitation panga. However, we agree that the view expressed _b_ y the learned Justices of Appeal that _**"PW 3**_ _sustained bruises and cuts which would be consistent with use of a panga rather than a piece of wood as alleged"_ was inconsistent with the evidence. The learned Justices did not see the injuries and so had no _b_ asis for rejecting the medical opinion that they resulted from _b_ eating with sticks. Nevertheless, much as their view was erroneous, it was immaterial _b_ ecause the injuries and their cause are not ingredients of the offence in issue. In conclusion, we find that the erroneous admission of the confessions in evidence did not occasion any miscarriage of justice as the other circumstantial evidence led to irresisti _b_ le inference of the appellants' guilt. We hold that the trial court rightly convicted all three appellants as indicted and the Court of Appeal rightly upheld their convictions. Accordingly, we dismiss the appeal against conviction. On sentence, the appellants through Messrs Katende, Ssempe _b_ wa & Co. Advocates, with consent of counsel for the respondent applied and were allowed to file grounds of appeal against sentence. Before they did, we heard the Advocates in _**_Philip Zahura Vs. Uganda Criminal Appeal No. 16_**_ _**_of_**_ _**_2001_**_ _**,**_ on the same ground of appeal they intended to raise in this appeal. We intimated that we would make appropriate order in similar cases. In this cases it is appropriate to follow our decision in _**_Philip Zahura Vs. Uganda_**_ _**(supra),**_ and exercise our discretion under articl _**e**_ 22 (1) of th _**e**_ Constitution, to postpone confirmation of the sentences imposed in this case, until the determination of the pending appeal against the decision of the Constitutional Court in Constitutional Petition No. 6 of 2003. _**DATED at M**_ _**e**_ _**ngo th**_ _**e**_ _**1st**_ _**day of November 2005.**_ A.H.O. Od _e_ r Justic _e_ __ of th _e_ __ Supr _e_ me Court. J.W.N. Tsekooko Justic _e_ __ of th _e_ __ Supr _e_ me Court A.N. Karokora Justice of the Supreme Court J.N. Mul _e_ nga Justice of th _e_ __ Supr _e_ m _e_ __ Court G.W. Kanyeihamba Justice of the Supreme Court. #### __Related documents #### More documents like this one ▲ To the top >