Hamuza & Others v Uganda (Criminal Appeal 44 of 2001) [2004] UGSC 36 (18 May 2004)

# Hamuza & Others v Uganda (Criminal Appeal 44 of 2001) [2004] UGSC 36 (18 May 2004) [ Share this document on WhatsApp opens in new tab __](https://api.whatsapp.com/send?text=Hamuza+%26+Others+v+Uganda+%28Criminal+Appeal+44+of+2001%29+%5B2004%5D+UGSC+36+%2818+May+2004%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2004%2F36%2Feng%402004-05-18) [ Share this document on X opens in new tab __](https://twitter.com/intent/tweet?text=Hamuza+%26+Others+v+Uganda+%28Criminal+Appeal+44+of+2001%29+%5B2004%5D+UGSC+36+%2818+May+2004%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2004%2F36%2Feng%402004-05-18) [ 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/2004/36/eng@2004-05-18) [ 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/2004/36/eng@2004-05-18) [ Share this document by email __](mailto:?subject=Take%20a%20look%20at%20this%20document%20from%20ULII:%20Hamuza%20&%20Others%20v%20Uganda%20\(Criminal%20Appeal%20%E2%80%A6&body=https://ulii.org/en/akn/ug/judgment/ugsc/2004/36/eng@2004-05-18) __Save [ Download RTF (107.4 KB) ](/en/akn/ug/judgment/ugsc/2004/36/eng@2004-05-18/source) Toggle dropdown * [Download PDF](/en/akn/ug/judgment/ugsc/2004/36/eng@2004-05-18/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 (107.4 KB) ](/en/akn/ug/judgment/ugsc/2004/36/eng@2004-05-18/source) * [Download PDF](/en/akn/ug/judgment/ugsc/2004/36/eng@2004-05-18/source.pdf) * * * * * Report a problem __ ##### Hamuza & Others v Uganda (Criminal Appeal 44 of 2001) [2004] UGSC 36 (18 May 2004) Copy citation __Save * __Document detail * __Related documents Citation Hamuza & Others v Uganda (Criminal Appeal 44 of 2001) [2004] UGSC 36 (18 May 2004) Copy Media Neutral Citation [2004] UGSC 36 Copy Court [Supreme Court of Uganda](/en/judgments/UGSC/) Case number Criminal Appeal 44 of 2001 Judgment date 18 May 2004 Language English Summary Read full summary __ ##### Ask AI Ask questions and understand this document faster using AI. __Ask AI * * * Skip to document content **THE REPUBLIC OF UGANDA** **IN THE SUPREME COURT OF UGANDA** **_AT MENGO_** **CRIMINAL APPEAL NO.****44** **OF****2001** **(CORAM: ODER, TSEKOOKO, KAROKORA, MULENGA, KATO, JJSC.)** 1. **CPL KASIRYE HAMUZA)** 2. **PC MUSINGO PETER )** 3. **NURU KONDE WAISWA) :::::::::::::::::::::: APPELLANTS** 4. **NDOLERIRE FRED )** 5. **SGT KULE DENNIS )** **VERSUS** **UGANDA ::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT** _**(Appeal from the**_ _**J**_ _**udgment of the Court of Appeal at Kampala (Mukasa-Kikonyogo, DC**_ _**J**_ _**, Okello and Twinomu**_ _**J**_ _**uni**_ _**JJ**_ _**.A) dated 28/8/2001 in Criminal Appeal No. 70 of 1999).**_ **_JUDGMENT OF THE COURT_** This is a second appeal. The appellants were convicted _b_ y the High Court on five counts of aggravated ro _b b_ e _r_ y contra _r_ y to Sections 272 and 273 (2) of the Penal Code Act. The fifth appellant was, in addition, convicted of murder contrary to sections 183 and 184 of the Penal Code Act, in count one. They appealed to the Court of Appeal which allowed the appeal on count one as regards the fifth appellant and counts 3,4 and5 in respect of all the appellants. The appeal was dismissed in respect of counts 2 and 6. The appeal before us now is in respect of those two counts. The _b_ rief facts of the case as presented _b_ efore the trial court and accepted _b_ y it are as follows: The appellants planned to go and ro _b_ __ a coffee factory _b_ elonging to one Sentongo Salongo at Jinja. The fourth appellant Fred Ndoleire hired a car Reg. No. UBG 969 from a tours agent known as Equator Tours and Travel Company in Kampala for the purpose of accomplishing the plan. On 7/5/1996, Kasirye and Ndolerire, the first and fourth appellants respectively, left Kampala for Jinja, in the said vehicle which was driven _b_ y Hamuza Kasirye from Kampala to Jinja. On reaching Jinja the two went to the home of the third appellant, Nuru Konde Waiswa, where they were joined _b_ y the oth _e_ r appellants and o _b_ tained two pistols. The group then proceeded to the place of the intended ro _b b_ ery. On arrival at the factory Kasirye was recognised _b_ y the workers who greeted him as a person whom they knew _b_ efore. Thereupon Kasirye told his fellow ro _b b_ ery conspirators that the mission was impossi _b_ le. The planned ro _b b_ ery in that place was a _b_ andoned. The team decided to go and carry out ro _b b_ eries elsewhere to avoid going _b_ ack empty-handed. In order to execute the new plan, the group, which at that time did not include Nuru Konde Waiswa and Fred Ndolerire, proceeded to Kamuli where they committed a num _b_ er of ro _b b_ eries and one murder. The appellants were later on arrested at different places and times, Kasirye, Musingo and Ndolerire made charge and caution statements to the police, _b_ ut the trial Judge rejected them; he however admitted in evidence the statements made _b_ y the same appellants to the magistrate grade I, Mr. Auguandia Godfrey Opifen, (PW7). At the trial, all the appellants denied ever having committed the offences. Each of them gave different defences. Kaisrye admitted having _b_ een present when the offences were being committed _b_ ut he pleaded that he was acting under compulsion. Musingo, Nuru Konde Waiswa and Sgt. Denis Kule pleaded ali _b_ i. Fred Ndolerire, while admitting that he hired the vehicle from Kampala to Jinja, he denied that it was for the purpose of committing any offence. It was for the purpose of collecting his de _b_ ts. The learned trial judge rejected all the defences and convicted the appellants and sentenced each of them to death. Hence this appeal. The first appellant Kasirye Hamuza (A1) framed two grounds in support of his appeal. They are: - 1. **The learned Justices of Appeal erred in law and fact when they upheld the trial Court's finding that the doctrine of common intention applied to the first appellant.** 2. **The learned** _**J**_**ustices of appeal erred in law and fact when they upheld the trial court's dismissal of the first appellant's defence of compulsion.** Mr. Steven Mu _b_ iru who appeared for this appellant, argued the two grounds separat _e_ ly. On th _e_ first ground h _e_ su _b_ mitt _e_ d that the Justic _e_ s of Appeal were wrong when they held that the appellant shared a common intention with the oth _e_ r app _e_ llants and that th _e_ appellant's counsel conceded to that fact when there was no evidence to support that finding. According to him, the appellant's counsel at the trial conceded only to what happened at the factory where the original plan a _b_ orted _b_ ut not what took place later. Mr. Mu _b_ iru further su _b_ mitted that although the appellant took part in the hiring of the vehicle he did not know that those who hired it were going to use it for stealing. Mr. Michael Wamase _b_ u Assistant D.P.P, who appeared for the respondent, conceded that the Justices of Appeal were not correct when they held that Mr. Muguluma had conceded _b_ efore them that the appellant had willingly participated in the commission of the offences. This is what their Lordships said on this point: **"Mr. Edward Muguluma Damulira learned counsel for the first appellant conceded that from the on set up to the site of the planned robbery which aborted the appellant was part and parcel of the plan to rob".** With due respect to their Lordships, this passage does not agree with what Mr. Muguluma said in that court according to the availa _b_ le record. The following statement is what Mr. Muguluma said: - **"Mr. Mugulama for** A1**states it is our submission that** A1**had nothing to do with the plan to rob Haji Sentongo of Jinja.** A1**was a mere hire driver he was hired on 7/5/96 by Ndolerire "** We agree with counsel on _b_ oth sides that the holding _b_ y the Court of Appeal a _b_ out the purported concession _b_ y Mr. Muguluma concerning appellant's participation in the commission of the offences was not _b_ ased on what was on the record. Mr. Muguluma only conceded to the appellant having _b_ een hired to driv _e_ a v _e_ hicl _e_ from Kampala to Jinja. On the issu _e_ of common intention, Mr. Wamase _b_ u su _b_ mitted that the appellant was not a mere innocent driver who did not know for what the vehicle had _b_ een hired. According to him the appellant must have known that the vehicle was to _b_ e used in the ro _b b_ ery, as he was instrumental in getting the vehicle. He deceived the owner of the vehicle that it was to _b_ e used for campaigning. As far as this particular appellant was concerned, the issue of common intention was not raised in th _e_ Court of App _e_ al, so it was n _e_ v _e_ r consid _e_ r _e_ d. Th _e_ court d _e_ alt with th _e_ issu _e_ only in r _e_ sp _e_ ct to Nuru Kond _e_ whom th _e_ court found to hav _e_ had common int _e_ ntion. Sinc _e_ the question of common int _e_ ntion is a matter of mix _e_ d law and fact, we have to consid _e_ r it. The app _e_ llant's own testimony shows that the appellant drove the vehicle from Kampala up to the point when it got involved in an accident after the ro _b b_ eries had _b_ een committed. He raised the issue of compulsion to which we shall return shortly. After considering all the availa _b_ le evidence we are satisfied that the appellant had a common int _e_ ntion with th _e_ oth _e_ r appellants to commit the ro _b b_ eries, which are the su _b_ j _e_ ct of this app _e_ al. W _e_ ar _e_ of the view that if this point had _b_ een raised in the Court of Appeal, in view of the availa _b_ le evidence, that court would have come to the same conclusion that there was common intention _b_ etween the appellant and th _e_ other app _e_ llants. Ground 1 of th _e_ app _e_ al must fail. On th _e_ s _e_ cond ground of app _e_ al, Mr. Mu _b_ iru su _b_ mitt _e_ d that their Lordships were wrong in holding that the appellant was not acting under compulsion at the time the offences were _b_ eing committed. He attacked the finding of the court that the appellant had said that he had _b_ een r _e_ cogniz _e_ d at th _e_ factory and that h _e_ and oth _e_ rs had d _e_ cid _e_ d to go to Kamuli to ro _b._ In his vi _e_ w th _e e_ vid _e_ nc _e_ in support of that finding should not hav _e b_ e _e_ n admitted as it was h _e_ arsay from PW3 who was not pr _e_ s _e_ nt at th _e_ scene. According to him the appellant was not a willing participant, he was forced to do whatever he did _b_ y the armed ro _b b_ ers. Learned counsel relied on the authority of: **_Shepherd v R (1988) 86 Cr. App. R. 47._** Mr. Wamase _b_ u argued that the appellant was not acting under any duress as he even went to check on his sister during the journey for commission of the ro _b b_ eries. According to him, if the appellant was under duress he could not have failed to mention that fact in his confession which h _e_ made _b_ efore th _e_ magistrate. He contend _e_ d that the d _e_ fenc _e_ of compulsion was not availa _b_ l _e_ to th _e_ app _e_ llant. Section 16 of th _e_ P _e_ nal Cod _e_ Act s _e_ ts out circumstanc _e_ s und _e_ r which an accus _e_ d p _e_ rson can r _e_ ly on the defence of compulsion. The section _r_ eads: _**" A person is not criminally responsi**_ _b_ _**le for an offence if it is committed**_ _b_ _**y two or more offenders, and if the act is done or omitted only**_ _b_ _**ecause during the whole of the time in which it is**_ _b_ _**eing done or omitted the person is compelled to do or omit to do the act**_ _b_ _**y threats on the part of the other offender or offenders instantly to kill him or do him grievous**_ _b_ _**odily harm if he refuses;**__b_ _**ut threats of future in**_ _**J**_ _**ury do not excuse any offence."**_ In the instant case, the defence was raised at the trial and _b_ efore the Court of Appeal. Both courts considered the defence and rightly, in our view, rejected it. The assessors also rejected it. The conduct of the appellant _b_ efore and after the ro _b b_ eries cannot _b_ e said to _b_ e that of a person who was acting under compulsion. Although the appellant in his statement to the Magistrate (PW7) kept on using expressions like "I was directed" or "I was ordered" that does not necessarily m _e_ an h _e_ was not a willing participant or h _e_ was acting und _e_ r compulsion. **The Shepherd** case (Supra), which was cited to us _b_ y the appellant's counsel, is distinguisha _b_ le from the present case. Firstly, in that case the question of compulsion was not put to the jury, unlike in the present case where the learned trial judge clearly summed up to the assessors on the issue of compulsion. Secondly, in that case one of the persons, whom the appellant alleged to have forced him to participate in the theft, actually assaulted the appellant at the court premises when the hearing of the case was going on, which was not the case in the present case. First appellant's second ground of appeal must fail. The second appellant, Musingo Peter (A2) raised 3 grounds of appeal _b_ ut the second ground was a _b_ andoned. The remaining two grounds, which were argued _b_ efore us, are: **1.****That the Honourable** _**J**_**ustices erred in law and fact when they relied on extra-judicial confessions to confirm the conviction whereas such extra-judicial confessions were not corroborated.** **2** **3\. That the Honourable** _**J**_**ustices erred in law and fact when they relied on common intention to confirm the conviction whereas the principles of common intention were not proved by the prosecution.** Ms. Diana Musoke, who appeared for this appellant, argued the two grounds separately. On the first ground she su _b_ mitted that the Court of Appeal erred when it relied on the confession of Ndolerire (A4) to convict the second appellant. According to her, that confession did not show that the appellant was in any way involved in the commission of the offences. In her view, the confession only showed that the appellant moved with those people. On the second ground she su _b_ mitted that the appellant did not have any common intention with those who were involved in the commission **of** the offences nor did he take part in the ro _b b_ eries. On his part, Mr. Wamase _b_ u argued that the confession made _b_ y Ndolerire against the appellant was corro _b_ orated _b_ y the evidence of Fa _b_ iano Byantalo (PW1) and that of Kiyim _b_ a (PW2). In his view there was overwhelming evidence against the appellant who had a common intention with the other ro _b b_ ers. We shall consider the two grounds together. Not only did the second appellant have common intention with the other ro _b b_ ers _b_ ut he actively pa _r_ ticipated in the ro _b b_ eries. This appellant was identifi _e_ d at th _e_ __ sc _e_ n _e_ __ of crim _e_ ___b_ y Fabiano Byantalo (PW1), Ro _b_ ert Kiyim _b_ a (PW2) and Ngo _b_ i Kasi _b_ a Godfrey (PW5). The Court of appeal, in our view, properly evaluated the evidence incriminating the second appellant as the following passage shows: **"In the instant case PW1 and PW2 identified appellant No.2 at different scenes of crime on the same day during a broad daytime. PW1 described the appellant as the person who had a pistol and was the very person who ordered the driver to get out of the motor vehicle. He was the person who ordered the witness to remove his wristwatch. He was also the person who took from the witness's pocket cash of Shs. 65,000/=. PW1 stated that the operation lasted for 3 minutes.** **PW2's testimony also corroborated that of PW1 that A2 was the person who had a pistol. PW2 stated that he identified this appellant better when the appellant was moving around some 5 to 6 meters from the vehicle. It was about 5 p.m. and the operation lasted 5 minutes. He had known the appellant before because he had trained with him as policemen at Masindi Police Training School. After the training, he lived with him at Naguru Police barracks for 1 1/2** __**years before they again returned for further training together. From the above evidence, we are satisfied that the identification of appellant No 2 by PW1 and PW2 could not have been mistaken. The conditions under which he was identified favoured correct identification"** With due respect to the learned counsel for the appellant, we do not agree that the appellant's conviction was _b_ ased on the confession of the fourth appellant. The conviction was _b_ ased on the identification evidence as indicated a _b_ ove. We, however, agree with her when she says that Fred Ndolerire does not specifically mention the name of the appellant as Peter Musango. Be that as it may, P _e_ t _e_ r Musingo was prop _e_ rly identifi _e_ d at th _e_ sc _e_ n _e_ of crim _e b_ y PW1 and PW2. He could have _b_ een convicted even if the confession of Ndolerire was to _b_ e ignored. We find no merit in the two grounds of appeal, which must fail. That leads us to the case of the third appellant, Nuru Konde Waiswa (A3). The appellant lodg _e_ d 6 grounds of appeal _b_ ut th _e_ second ground was a _b_ andoned. The remaining 5 grounds which were argued are: **1.****That the learned** _**J**_**ustices of Appeal erred in law and in fact when they upheld the finding that the Appellant No.3 housed the robbers and issued them with guns which were kept at his place for operation and as a result came to a wrong decision.** 2 **3.That the learned** _**J**_**ustices of appeal erred in law and in fact when they upheld the finding that there was common intention.** **4.That the learned** _**J**_**ustices of Appeal erred in law and in fact when they held that the extra-judicial statement of Ndolerire was rightly used against his co-accused and as a result arrived at a wrong decision.** **5.The learned** _**J**_**ustices of Appeal erred in law and in fact when they failed to find in favour of the appellant the contradictions in the prosecution case.** **6.That the learned** _**J**_**ustices of Appeal failed in law and in fact to evaluate evidence as a whole.** The gist of Mr. Muguluma's su _b_ mission was that their Lordships in the Court of Appeal were wrong to _b_ ase their decision on th _e_ conf _e_ ssion of Ndol _e_ rire who was an accomplic _e_ with the third appellant. H _e_ cont _e_ nd _e_ d that Ndol _e_ rire in his confession did not say that the guns were supplied _b_ y the third appellant. H _e_ also argu _e_ d that sinc _e_ Ndol _e_ rir _e_ did not sp _e_ nd a night at the home of the appellant he could not tell who slept there. Mr. Wamase _b_ u conceded that there was no evidenc _e_ to corro _b_ orate Ndolerir _e_ 's confession against the appellant who was an accomplice. In his view th _e_ evid _e_ nce which would have corro _b_ orated the confession was found to _b_ e inadmissi _b_ le. The case against this particular appellant was that he accommodated the ro _b b_ ers a night _b_ efore the ro _b b_ eries and that on the fateful day he provid _e_ d them with the guns, which were used in the ro _b b_ eries. There is no dou _b_ t that the conviction of this appellant was su _b_ stantially _b_ ased on the confessional statement made _b_ y his co-accused. Section 28 of the Evidence Act makes it lawful to take into account co-accused's confession incriminating a fellow co-accused with whom he/she is _b_ eing tried together. The appellant in this case is not only a co-accused _b_ ut an accomplice with the fourth appellant. The law relating to the evidence of an accomplice is contained in section 131 of the Evidence Act which reads thus: **"131. An accomplice shall be a competent witness against an accused person and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice".** Although the law as stated a _b_ ove does not require corro _b_ oration in support of accomplice's evidence, a practice has developed in our courts requiring corro _b_ oration or in its a _b_ sence a warning _b_ y the judge to himself and assessors on the danger of _b_ asing a conviction on uncorro _b_ orated evidence of an accomplice. (S**ee: Fabiano Obel & Others **-V- U**ganda (1965) EA 622).** The learned trial judge was alive to this practice, for in his judgment, he said: **"Haji also told PW6** S**gt Walimbwa that it was Mukonjo A6 who shot Mudooba. This would also be accomplice evidence and the law on accomplice evidence is clear.** S**uch evidence should not be used as a basis for conviction. Rather it lends assurance to other evidence. It would therefore require corroboration by some other independent evidence".** In his summing up notes to the assessors he said:-**"****_Accomplice Evidence_****:** **Court not to rely on this as a basis for a conviction. Usually desirable to get corroboration from some independent evidence".** The learned trial Judge however, did not correctly apply the a _b_ ove principle to th _e_ __ facts r _e_ lating to th _e_ __ cas _e_ __ of th _e_ __ third app _e_ llant. Th _e_ __ ass _e_ ssors were not satisfi _e_ d with th _e_ ___e_ vid _e_ nc _e_ __ against this app _e_ llant so th _e_**y** advis _e_ d that h _e_ ___be_ __ acquitt _e_ d. Th _e_ __ Court of App _e_ al gloss _e_ d ov _e_ r th _e_ __ issue and concluded that the statement of co-accused Ndolerire could _b_ e used to convict the appellant. Had _b_ oth courts isolated the position of the appellant from that of the other appellants, they (courts) would have found that there was no independent evidence to corro _b_ orat _e_ __ Ndol _e_ rir _e_ 's conf _e_ ssion against this appellant. We agr _ee_ __ with Mr. Muguluma's contention that in his confession Ndolerire did not specifically say that the appellant had given the guns to the ro _b b_ ers, he simply said: **"That is all. Another point probably is that these guns which were used were picked. I believe, from Haji's place in Jinja".** That statement clearly shows that Ndolerire was not sure that the guns were picked from the appellant's home. We agree with the su _b_ missions of _b_ oth counsel that the statement of Ndolerire was not sufficiently corro _b_ orated to warrant the third appellant's conviction. The issue of common intention could only _b_ e considered against him if there was some other evidence incriminating the appellant in the commission of the ro _b b_ eries. The appellant's grounds 1,3 and 4 of appeal must succeed. In view of our decision on grounds 1, 3 and 4 w _e_ __ s _ee_ __ no point in consid _e_ ring grounds 5 and 6. There ar _e_ __ four grounds of appeal in respect of the fourth appellant, Fred Ndolerire, (A4)|They are: - 1. **That the learned** _**J**_**ustices of the** _**C**_**ourt of** A**ppeal erred in law in upholding the finding of the learned trial judge that the extra judicial statement made by the 4****th****** A**ppellant before the Magistrate was voluntary.** 2. **That the learned** _**J**_**ustices of the** _**C**_**ourt of** A**ppeal erred in law and on the facts in holding that the extra judicial statement made by the 4****th****** A**ppellant was a full confession of the offences indicted on the** 2nd **and 6****th****counts and that the said extra judicial statement was sufficient to support the conviction of the 4****th****appellant of the offences of aggravated robbery indicted on the 2****nd****and 6****th****counts.** 3. **That the learned** _**J**_**ustices of** A**ppeal erred in law and on the facts in upholding the finding of the trial judge that the 4****th****appellant had shared a common intention with his co accused to travel from** _**J**_**inja to Kamuli and commit the offences of robbery with aggravation indicted on the 2****nd****and 6****th****counts.** 4. **That the above errors occasioned a miscarriage of justice to the** A**ppellants.** Mr. Emesu, who represented the appellant in this appeal, argued the grounds generally. He su _b_ mitted that the trial within trial was not conducted properly as far as his client was concerned. According to him that trial was in respect of A1 and A7 therefore it was wrong for the trial judge to hold that the trial within trial had proved that the app _e_ llant had mad _e_ __ his stat _e_ ment voluntarily. In his vi _e_ w that trial was held prematurely as the appellant's statement had not yet _b_ een tendered for consideration _b_ y the court. He further cont _e_ nd _e_ d that th _e_ ir Lordships w _e_ r _e_ __ wrong to hold that th _e_ app _e_ llant's stat _e_ m _e_ nt was a full confession, _b_ ecaus _e_ __ th _e_ __ confession was in respect of an offence which was not committed, on this point he cited: **R V Mali Kiiza s/o** L**usota (1941) 8 EACA 25.** In his vi _e_ w, th _e_ __ app _e_ llant's stat _e_ ment was not r _e_ levant to what happened in Kamuli after the original plan at Jinja had a _b_ orted. According to the counsel, the circumstantial _e_ vid _e_ nce concerning the hiring of the vehicl _e_ ___b_ y th _e_ __ app _e_ llant was not _e_ nough to warrant his conviction, as th _e_ r _e_ __ was no common intention in r _e_ sp _e_ ct of what happened at Kamuli. Mr. Wamase _b_ u conceded that th _e_ re was an irr _e_ gularity in the way the trial judge handled the trial within trial concerning this appellant. He, however, argued that the irregularity had _b_ een cured _b_ y the appellant having _b_ een given a chance to testify in the trial within trial. He contended that the confession was voluntarily o _b_ tained as the magistrate who wrote the confession t _e_ stified that there were no thr _e_ ats at th _e_ __ tim _e_ __ the confession was _b_ eing made. Mr. Wamase _b_ u, further argued that the confession was not confined only to what happened at Jinja _b_ ut was extended to Kamuli under the doctrine of **"Transferred intention".** As the appellant facilitated the ro _b b_ ers with transport and fuel and the ro _b b_ eries were actually committed, he had common intention to commit th _e_ __ ro _b be_ ri _e_ s. The r _e_ cord shows that th _e_ __ first complaint _b_ y Mr. Em _e_ su was not rais _e_ d in th _e_ __ Court of App _e_ al. Ordinarily w _e_ __ would not hav _e_ __ considered that point _b_ ut in interests of justice we have decided to consider it. As rightly conceded _b_ y Mr. Wamas _e b_ u, th _e_ __ mann _e_ r in which th _e_ __ trial within trial was conduct _e_ d in r _e_ sp _e_ ct of the fourth appellant was irregular. It was not proper for the trial Judge to proceed with the trial within trial in respect of this appellant when the ground for such a trial had not _bee_ n laid. Th _e_ __ proper procedure to _b_ e followed was for the prosecution to call the person who recorded the confession to testify a _b_ out it and if the defence o _b_ jected to the admissi _b_ ility of that confession then a trial within trial would have _b_ een conducted. We are, however, of the view that th _e_ __ irregularity did not cause any miscarriage of justice as the appellant in fact testified in the trial within trial proc _ee_ dings. His activ _e_ __ participation in th _e_ __ proc _ee_ dings cur _e_ d the procedural irregularity. On the issue of the appellant's confession not having _b_ een voluntary, we are satisfied that the Court of Appeal was justified in holding that the confession was voluntarily o _b_ tained. Their Lordships finding, with which we agree, was as follows: - _**"C**_**learly, there was no way the appellant could have seen a policeman standing outside the Magistrate's chambers pointing a gun at the appellant while his statement was being recorded. That claim cannot be true. As for the alleged earlier threats, we think that, the caution administered to the appellant by the Magistrate before recording the appellant's statement effectively removed them. We are, therefore, satisfied that the extra-judicial statement was voluntary and was rightly admitted in evidence."** With due respect to Mr. Emesu, we do not agree with his contention that the app _e_ llant's confession was irr _e_ l _e_ vant to what happ _e_ n _e_ d in Kamuli and that h _e_ __ had no common int _e_ ntion with thos _e_ __ who w _e_ nt to ro _b_ __ th _e_ r _e.___ Th _e_ purpos _e_ __ of hiring th _e_ __ vehicle was to use it for ro _b b_ ery, it is immaterial where that ro _b b_ ery was eventually committed. The appellant had a common intention with that group which went to Kamuli with the vehicle hired _b_ y him, although he remained in Jinja. According to his evidence in court and that of the first appellant, Hamuza Kasirye, the appellant refueled the vehicle while in Jinja; his explanation that the fuel was intended to take the vehicle _b_ ack to Kampala cannot _b_ e true in view of what happened. The Court of Appeal, correctly in our view, held that the appellant was criminally lia _b_ le under the doctrine of common intention. We find no merit in the grounds of appeal raised _b_ y the appellant. They must fail. The fifth and last appellant Sgt. Kule Denis (A5) presented four grounds of appeal: - **1\. That the learned** _**J**_**ustices of appeal erred in law and fact in finding that the accomplice evidence of A1 put the appellant at the scenes of crime** 2. **That the learned** _**J**_**ustices of Appeal erred in law and fact in upholding the identification evidence of PW1 and PW2 as a basis for conviction.** 3. **That the learned** _**J**_**ustices of Appeal erred in law and fact in rejecting the Appellant's defence of alibi.** 4. **That the learned** _**J**_**ustices of Appeal erred in law and fact in confirming the conviction of the Appellant without a thorough re-evaluation of the evidence on record.** Mr. Kunya who represented the appellant argued the four grounds separately. On the first ground he su _b_ mitted that the Court of Appeal should not have _b_ ased the appellant's conviction on the evidence of the first appellant who was an accomplice and who had a reason for implicating the fifth appellant and that reason was not considered _b_ y the two courts _b_ elow. On the second ground he argued that the evidence of PW1 and PW2 was not credi _b_ le, as the two witnesses did not know th _e_ __ appellant _b_ efore and conditions favouring correct identification did not exist. As for the third ground the learned counsel contended that the Court of Appeal and the trial court did not consider the appellant's defence of ali _b_ i, had that defence _b_ een considered a dou _b_ t would have _b_ een raised in favour of the appellant. Regarding the fourth and last ground, the counsel su _b_ mitted that there were points, which were raised at the trial _b_ ut were never considered _b_ y the court. He gave as an example, the manner in which the appellant was arrested at Kirinya prison where he had _b_ een detained for a different offence of trading without a licence. On his part, Mr. Wamas _e b_ u, su _b_ mitt _e_ d that th _e_ re was overwhelming _e_ videnc _e_ __ against th _e_ __ app _e_ llant. That _e_ vidence was to _b_ e found in th _e_ testimonies of PW1 and PW2 and the confessions of A1 and A4. He contended that conditions for correct identification of the appellant existed. In our view, the first three grounds of appeal were a _b_ ly handl _e_ d _b_ y th _e_ __ Court of App _e_ al as follows: - **"The main complaint in grounds 3 and 4 was that the trial** _**J**_**udge accepted wholesale the prosecution case and rejected the appellant's alibi without giving it judicious consideration. We find no merit in this complaint. The accomplice evidence of A1 put the appellant at the scene of crime. That evidence was amply corroborated by clear evidence of identification by PW1 and PW2. as seen above the evidence of identification was thorough. The witnesses described clearly the parts played by the appellant in the commission of the offence. That ruled out the alibi put by the appellant"** In our opinion the Court of Appeal was justified in reaching the a _b_ ove decision. The appellant's conviction was not _b_ ased on the evidence of the first appellant alone _b_ ut also the evidence of PW1 and Pw2 who saw the appellant at the scene of crime. Even if the evidence of the first appellant were to _b_ e ignored,still the fifth appellant would have _b_ een convicted on the evidence of PW1 and PW2. That disposes of grounds 1, 2 and 3 raised _b_ y the appellant's counsel. The three grounds must fail. As for the fourth and last ground of appeal where the counsel complained that the court did not consider the manner in which the appellant was a _r_ rested, we would like to say that the point was not relevant to the outcome of this case. The court having rejected appellant's defence of ali _b_ i, it is immaterial whether the appellant was arrested while at Kirinya Prison **or** somewhere else. The appellant's story that on 7/5/1996 he was in Kasese where he had gone to _b_ uy some clothes was, in our view, rightly rejected _b_ y the trial court and the Court of Appeal which _b_ elieved the evidence of prosecution witnesses (PW1 and PW2) plus the evidence of the first appellant who saw the appellant committing the offences. The fourth ground of appeal must also fail. In conclusion, we find no merit in the appeals of Cpl Kasirye Hamuza (A1), P.C. Musango Peter (A2), Ndolerire Fred (A4) and Sgt Kule Dennis (A5) Their appeals are accordingly dismissed. We have, however, found merit in the appeal of Nuru Kond _e_ __ Waiswa (A3). His appeal is allowed. The convictions on _b_ oth counts are quashed and the sentence imposed upon him is set aside. Unless he is _b_ eing held in Prison for some other lawful purpos _e,___ he is to _b_ e set free forthwith. _**Dated at Mengo this 18**_ _**th**_ _**day of May 2004.**_ **A.H.O. ODER** **JUSTICE OF THE SUPREME COURT** **J. W.N. TSEKOOKO** **JUSTICE OF THE SUPREME COURT** **A.N. KAROKORA** **JUSTICE OF THE SUPREME COURT** **J.N. MULENGA** **JUSTICE OF THE SUPREME COURT** **C.M. KATO** **JUSTICE OF THE SUPREME COURT** #### __Related documents #### More documents like this one ▲ To the top >