Amido and Others v Rex (Criminal Appeal's Nos. 103-105 of 1951) [1951] EACA 201 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and AINLEY, J. (Uganda)

## (1) ALIKANJELO WAIGO s/o AMIDO, (2) SAMUELI KETOVU, and (3) AZORU s/o AMIDO (Original Accused Nos. 6, 7 and 1), Appellants

## REX, Respondent

## Criminal Appeals Nos. 103-105 of 1951

(Appeal from the decision of H. M. High Court of Uganda at Kampala— Pearson, $J.$ )

Rape—Importance of evidence of terms of original complaint.

The three appellants with four others were convicted of rape by the High Court of Uganda.

The Chief to whom the woman was taken shortly after the assault did not give evidence before the committing Magistrate or at the trial.

Held (5-7-51).-It is extremely important that there should be clear evidence of the terms of the original complaint when it is available.

Appeal dismissed.

Appellants unrepresented.

Walthers, Crown Counsel, Uganda, for Crown.

JUDGMENT.—The three appellants in this case, whose appeals we have consolidated, were tried with four others on a charge of rape and convicted by the High Court of Uganda.

The second appellant, who is named Samueli, has not appeared before us but the other two appellants, Waigo and Azoru, have appeared and have said again what they said at their trial, namely, that they had nothing to do with the raping of any woman but that they were involved in a drunken fight with the main Crown witnesses, Dominiko and Arua.

The learned trial Judge had the two stories before him and from the judgment it is very evident that he addressed his mind carefully to all the factors in this somewhat complex case, and we are unable to say that there was not sufficient evidence on which he could come to the conclusion that each appellant combined in a common purpose to ravish the female complainant that some, if not all, actually did so. It is unfortunate that the Chief to whom the woman was taken by Dominiko and Arua shortly after the assault did not give evidence either before the committing Magistrate or at the trial for in cases like this it is extremely important that there should, when it is available, be clear evidence of the terms of the original complaint.

However, in this case if the evidence of Dominiko and Arua is accepted there was ample corroboration of the complainant's story and there was medical evidence also which pointed to the fact that she had been subjected to violent interference.

On the question of identification there is no reason to suppose that in respect of the appellants Waigo and Azoru the complainant could have been mistaken, for according to her, Azoru, whom she knew before, was the first man to follow her, seize her and have intercourse with her, and the appellant Waigo, both according to the complainant and the witnesses Dominiko and Arua, was the man who was having intercourse with her when those witnesses came to her rescue. In the case of both these appellants therefore the woman had ample opportunity to recognize them.

With regard to the second appellant, who it would appear was the youngest member of the party and possibly not more than 15 or 16, it may be as he says in his Memorandum of Appeal that he has never yet had anything to do with a woman but there was evidence which the learned Judge accepted which pointed clearly to the fact that he was actively assisting the commission of the rape by the older members of the party.

In all three cases, therefore, the appellant's appeals against conviction must be dismissed.

As regards the sentences passed, those passed on the first and third appellants are certainly severe ones but they are not so excessive as to warrant our interference, for this concerted and brutal attack by a number of men on a woman walking alone cannot be regarded in anything but the most serious light. As regards the youthful appellant, whilst the learned Judge imposed a whipping sentence as heavy as those imposed on the other appellants he passed on this appellant only a light prison sentence. For this reason, therefore, we also see no cause for interference.

The appeals against sentence are accordingly also dismissed.