Aurien v Uganda (Criminal Appeal 1 of 2016) [2019] UGSC 74 (15 November 2019)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA [CORAM: MWANGUSYA, MWONDHA, TIBATEMWA- EKIRIKUBINZA, MUGAMBA, TUMWESIGYE AG. JSC, JJSCI

# **CRIMINAL APPEAL NO. 1 OF 2016**

# AURIEN JAMES PETER ::::::::::::::::::::::::::::::::::: **VERSUS**

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UGANDA :::::::::::::::::::::::::::::::::::

# **JUDGMENT OF THE COURT**

The appellant, Aurien James Peter, was indicted for murder contrary to sections 188 and 189 of the Penal Code Act in the High Court at Mukono. On 29th November 2010 after trial he was convicted of the charge. Consequently he was sentenced to death. He appealed both the conviction and sentence. The Court of Appeal upheld the conviction but set aside the sentence. It substituted the capital sentence with a term of imprisonment of 40 years. The appellant appeals to this Court against the decision in the first appeal and advances grounds which are as follows:

- 1. The Learned Justices of Appeal erred in Law when they confirmed the Appellant's conviction based on circumstantial evidence which was not sufficient to draw an inference of the accused's guilt and such evidence was capable of other hypotheses or co-existing circumstances weakening or destroying the inference of the accused's guilt. - 2. The Learned Justices of Appeal erred in Law when they held that there were previous threats made by the Appellant to the effect that he would kill the deceased.

- 3. The Learned Justices of Appeal erred in Law when they held that the Appellant's conduct after the death of the deceased was of a guilty person. - 4. The Learned Justices of Appeal erred in Law when they sentenced the Appellant to 40 years imprisonment without taking into account the period spent on remand and other mitigating factors which rendered the sentence illegal.

#### **Background**

The appellant and the deceased resided together as man and wife in the Police Barracks at Lugazi Police Station. The appellant was the District Police Commander at the material time.

At around midnight on 19th April, 2008 the deceased sustained a gunshot wound which resulted in her death soon thereafter. The incident was in the wake of a quarrel between the appellant and the deceased. Fearing for her life, the deceased had picked the appellant's pistol and taken it to the bedroom where she slept separate from her husband. It was upon the appellant's return later in the night that he came to learn that his pistol had been picked by the deceased. Thereupon the appellant called out to the deceased to hand the pistol to him. In response the deceased opened the door to her bedroom and. holding the pistol dared the appellant to kill her. Soon after a shot rang out and the deceased lay on the floor in a pool of blood. The appellant took the deceased to Kawolo Hospital but realized soon after that she was dead. It was then the appellant drove back. He abandoned the deceased's body by the roadside a few meters from Lugazi Police Station. He drove away in flight. It was not until a week later that the appellant handed himself over to police at Kibuli CID Headquarters. Thereafter he was detained and eventually indicted with the murder of the deceased. He denied the charge saying it was the deceased herself who had taken her life.

#### **Representation**

Mr. Andrew Ssebugawo appeared for the appellant while Ms. Jane Okuo Kajuga, Senior Assistant DPP, represented the respondent.

# **Submissions**

Both counsel filed written submissions earlier. Save for a particular reservation by the learned Senior Assistant DPP relating to ground 4 of the memorandum both parties adopted their written submissions. As regards ground 4 the respondent orally submitted, departing from what was contained in the written submissions. Instead of conceding to the argument advanced by the appellant concerning the sentence as is apparent in the written submissions the respondent proceeded to oppose the ground in the course of the oral submissions. We follow the sequence.

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It was submitted on behalf of the appellant that the Court of Appeal erred in Law when they confirmed the appellant's conviction based on circumstantial evidence. It was argued that the evidence on which the appellant was convicted was capable of explanation on some other hypotheses. It was argued that on the evidence tendered for the prosecution the death of the deceased could have resulted from any of the three hypotheses which were:

- (a) that the deceased was accidentally shot - (b) that the deceased shot herself - (c) that the accused shot the deceased

It was submitted on behalf of the appellant that given the fact that three hypotheses were advanced in the prosecution evidence the conviction was open to doubt and that as such the case against the appellant was not proved beyond reasonable doubt. In this connection Simon Musoke v R [1957] EA of 715 and Teper v R [1952] A. C. 480 were cited. It was contended by the appellant that given the several hypotheses canvassed, circumstances existed which weakened the inference of the accused's guilt. It was touted on behalf of the appellant that the shooting could have been accidental.

For the respondent it was submitted that the first appellate Court properly evaluated the circumstantial evidence and arrived at the right conclusion that the appellant himself shot the deceased and that he did so with malice aforethought. It was the contention of the respondent that the circumstantial evidence adduced was strong and that it was not compatible with the innocence of the appellant.

The respondent sought to have ground 1 dismissed.

### Ground 2

It was submitted on behalf of the appellant that the Court of Appeal erred in law when they relied on unproved evidence of threats the appellant allegedly uttered to the deceased prior to the shooting. The appellant argued that the alleged threats were not proximate in that they were said to have been made long before the shooting incident and that the evidence of the alleged threats was hearsay which should not be admissible. In this connection reference was made to Mureeba Janet & 2 Others v Uganda, Supreme Court Criminal case No. 13 of 2003 and Waihi & Another v Uganda [1968] EA 278.

The respondent on the other hand contended that the Court of Appeal properly evaluated the evidence concerning the threats that were made to the deceased prior to her death and that it correctly relied on them to uphold the finding of the trial court. The respondent went on to mention evidence of threats as presented by PW2 and PW3, sisters of the deceased, who stated that on the material day the deceased called them expressing fear and anxiety about threats from the appellant and his angry state of mind. It was submitted on behalf of the respondent that the Court of Appeal re-evaluated the evidence of PW2 and PW3 and found no major contradictions between what they stated. It was further contended by the respondent that the evidence of PW2 and PW3 was considered alongside that of PW 8 who had accompanied the deceased to the call box where the deceased called PW2 and PW3. The respondent stated that when the court considered the evidence of all 3 witnesses no major contradictions were found. The respondent cited

section 30(a) of the Evidence Act and the decision in Mureeba Janet and 2 others vs Uganda (Supra).

The respondent sought to have this ground too dismissed.

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The appellant contested the holding of the Justices of Appeal that the conduct of the appellant after the death of the deceased was that of a guilty person. It was stated on behalf of the appellant therefore that such finding led the court to arrive at a wrong conclusion of confirming the conviction of the appellant.

It was submitted for the appellant that contrary to the finding of the Courts below the appellant's conduct in the circumstances should give no reason for suspicion given the following instances:

- 1. He had called PW4 and PW8 to assist him put the deceased into his car and had rushed her to hospital. It was on his way he had met PW5 who was the duty officer to whom he reported the case of accidental shooting and handed over the pistol. - 2. By reporting to PW5 and handing over the pistol the appellant had avoided leaving a loaded pistol unattended in a house where his 3 year old child was. There was the danger of the child coming across the gun; so removing it was to avoid that danger rather than to tamper with the scene of crime. The appellant denied abandoning the deceased's body along the Jinja-Kampala highway but agreed he deposited the body on the police compound near the police station. - 3. He rushed to the village in order to procure cows, goats and money to give to relatives of the deceased for reconciliation according to the customs of his community.

- 4. He communicated with PW5, PW7 and PW14 who allowed for the body to be transported by PW2 for burial after PW2 had received Shs.400,000/= from the appellant for the purpose. - 5. After the burial the appellant reported himself to CID headquarters where he wrote a detailed statement.

The appellant contends that the charge of manslaughter could be considered in the circumstances leading to a lenient sentence.

The respondent supports the finding of the Court of Appeal and contends that the removal of the pistol from the scene, the abandoning of the deceased's body on the roadside along the Jinja-Kampala highway, the failure of the appellant to report to CPS Kampala as he had undertaken to do in his communication with PW4 as well as the appellant's failure to report for over one week amounted to conduct of a guilty person. In this connection the respondent cited **Uganda** vs **George Wilson Simbwa** vs **Uganda, Supreme Court** Criminal Appeal No. 37 of 1995 and Isaya Bikimu vs Uganda, Supreme Court of **Uganda Criminal Appeal No. 24 of 1989.**

The respondent submitted that this ground should fail.

#### Ground 4

In this ground the appellant submitted that the Court of Appeal did not take into account the period the appellant spent on remand as well as other mitigating factors when it passed sentence and that consequently the sentence is illegal and excessive. In this connection the appellant cited Article 23 (8) of the Constitution and cases of moment namely Kizito Senkula vs Uganda, SCCA No 24 of 2001, and Aharikundira Yusitina vs Uganda, Supreme Court Criminal Appeal No. 27 of 2015. Rwabugande Moses vs **Uganda, SCCA 20/2014** was also referred to. The Appellant sought to have the sentence set aside and for a lenient sentence to be handed down instead.

As intimated earlier, at the time of hearing of this appeal counsel for the respondent elected to oppose this ground, albeit the ground not being contested in the written submissions. Consequently it has been submitted on behalf of the respondent that the case of **Rwabugande**, (supra) is not applicable to this appeal. The respondent contended also that the period the appellant spent on remand was duly considered by the Court of Appeal before it passed sentence. The respondent wants this ground also to fail.

# **Consideration**

We are alive to the holding of this Court in Areet Sam vs Uganda, SCCA No. 20 of **2005** where it is stated:

'We also agree with Counsel for the respondent that it is trite law that as a second appellate Court we are not expected to re-evaluate the evidence or question the correct findings of facts by the High Court and Court of Appeal. However, where it is shown that they did not evaluate or re-evaluate the evidence or where they are proved manifestly wrong on findings of fact, the Court is obliged to do so and to ensure that justice is properly and truly served...................................

Concerning ground 1 the appellant is dissatisfied with confirmation by the Court of Appeal of conviction by the High Court based on weak circumstantial evidence. We have looked at the judgment of the court and found that the appellate court took time to consider the impugned evidence before it reached its conclusion. At page 25 of the judgment the following sentence features:

'The evidence of PW5 and PW8 became crucial for the trial Court in establishing who actually shot the deceased and whether or not, the shooting was with malice aforethought.'

Then at the bottom of page 34 of the judgment and inclusive of page 35 thereof the judgment goes on to state:

'We have already stated and shown how the trial judge rightly in our view addressed himself as to the law on circumstantial evidence.

Having so rightly addressed himself, the trial Judge proceeded to consider all the evidence that was before him and found that the testimony of PW8 regarding the shooting was truthful and that of the appellant that deceased shot herself was false. Appellant told PW5 that he (appellant) had shot the deceased but accidentally and handed over the pistol to PW5. If the shooting had been by the deceased, then the appellant, a Senior Police Officer, would not have disturbed the scene of suicide by picking the pistol and handing it over to PW5. Appellant dropped the body of the deceased by the Jinja-Kampala highway roadside near the Post Office and then disappeared for a week without reporting to the Police Headquarters as he had informed PW14. This was not conduct of an innocent appellant Immediate (sic) before the shooting of the deceased at midnight on 19/20.04.08 PW2 and PW3, had been communicated to by the deceased by phone on 19.04.08 at 8:00-9:00pm that the appellant had threatened to kill her.

The trial Judge found that the above factors constituted circumstantial evidence proving beyond reasonable doubt that the appellant committed the crime.

We have re-assessed the evidence and we too come to the conclusion that the trial Judge, reached the correct *conclusion*....................................

At page 36 of the judgment the Court of Appeal had this to say.

'The trial Judge considered all the evidence that was before him and found that from the threats made to the deceased, the fact that a gun was used to shoot the deceased on a vital part of the head, thus injuring her seriously and causing her to bleed to death coupled with the utterances of the appellant after the shooting, his disappearance and his subsequent conduct after the shooting, established that the shooting of the deceased was with malice aforethought on the part of the appellant. Death by accident was ruled out by the trial Judge. On re-Page 8 of 15 assessing the evidence adduced we come to the conclusion that the trial Judge properly approached and dealt with the issue of malice aforethought and we uphold his conclusion that malice aforethought was established beyond reasonable doubt.........'

In Babyebuza Swaibu vs Uganda, SCCA No.47 of 2000 this Court held that when determining whether circumstantial evidence proves the guilt of a person accused of a criminal offence the court considers the evidence as a whole and does not evaluate each piece in isolation.

The judgment of the Court of Appeal is loud and clear on the fact that the Court reevaluated the evidence available to the trial Court and independently upheld the conclusion that the circumstantial evidence was cogent enough to sustain the conviction. The Court rejected the various hypotheses posited by the appellant to escape responsibility for the offence.

On appraisal, we too find no reason to disturb that finding.

Ground 1 does not succeed.

In ground 2 the appellant contests the finding by the trial Court as well as the first appellate court that there were previous threats made by the appellant to the effect that he would kill the deceased. It was submitted on behalf of the appellant that no weight should have been attached to the alleged threats given that they were neither uttered nor published to any of the witnesses who testified that such existed. As such it was contended by the appellant that such evidence was hearsay. It was further contended that there was no sufficient proximity between the time the threats were allegedly made and when the shooting of the deceased occurred. The respondent supports the finding of both the trial Court and Court of Appeal who believed the respective testimonies of PW2 and PW3, sisters of the deceased, who stated that they were each called on phone by the deceased on the material day. They stated that the deceased then expressed fear and anxiety about threats from the appellant and about appellant's state of mind. On reevaluation of the evidence of the two witnesses the court found no major contradictions

in their respective testimonies. What was found is that both witnesses gave evidence showing that at the material time the deceased was distressed and afraid. The appellant Court went on to re-evaluate the evidence of PW2 and PW3 alongside that of another sister, PW8, and again found corroboration. The Court noted starting page 16 of the judgment:

'In our re-evaluation of the evidence of PW2 and PW3 we see no major contradictions between the evidence of the two.

However appellant's Counsel has invited us to hold that the evidence of both PW2 and PW3 was in grave contradiction with that of PW8 and as such the learned trial Judge sought not to have accepted the same as credible. The contradictions are that PW8 testified that on 19.04.2008 she accompanied the deceased to the call box who rang (sic) PW3 and deceased emphasized to PW3 that she had a problem with the appellant. Then they returned home. PW 8 did not testify that the deceased also rang PW2. The deceased did not also say to PW3 that appellant was threatening to kill her. Further PW8, testified that PW2 did not ask her while at hospital what had happened before the deceased died. Yet PW2 testified that PW8 told her that the appellant had stated that he had killed the deceased. The other contradiction was that PW3 saw the deceased's body together with the foetus in the mortuary at Kawolo Hospital yet PW2 never referred to the foetus and also PW11 who prepared the postmortem report had stated that he never opened up the deceased's body and never referred to the foetus.

We have re-evaluated the evidence of PW2, PW3, PW8 and that of the appellant as relates to the stated contradictions. We observe that PW8 was never asked by anyone, as to whether when she accompanied the deceased to the telephone call box on 19.04.08 between 7:00-8:00pm, she listened to every word that the deceased said while speaking by phone to whoever she(deceased) telephoned to. In the absence of being so asked, it cannot be concluded, like the appellant's counsel apparently does, that the deceased only spoke to PW3 and did not speak Page 10 of 15

to PW2. Also it cannot be concluded that PW8 heard each and every word the deceased spoke on phone with whoever she spoke to.

The learned trial Judge had the opportunity to assess the demeanor of PW2 and he found her a truthful witnesses. We have no basis to fault the trial Judge in this. We accordingly do not find this a material contradiction to affect the veracity of the prosecution case against the appellant'.

The passage above serves to show that the Court of Appeal properly re-evaluated the material evidence of PW2, PW3 and PW 8 and in our view properly came to their conclusion regarding the threats earlier unleashed on the deceased by the appellant. Evidence of a prior threat is admissible against persons accused of murder. See **Waihi &** Another v Uganda, (supra) where at page 280 of the Report the Court of Appeal for East Africa notably held:

"... Evidence of a prior threat or of an announced intention to kill is always admissible evidence against a person accused of murder, but its probative value varies greatly and may be very small or even amount to nothing. Regard must be had to the manner in which a threat is uttered, whether it is spoken bitterly or impulsively in sudden anger or jokingly, and reason for the threat, if given, and the length of time between the threat and the killing are also material....'

Basing on the evidence on record, we find no reason to fault the finding of the first appellate Court.

Ground 2 should also fail.

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In ground 3 it is submitted on behalf of the appellant that the Justices of the Court of Appeal erred in law when they held that the appellant's conduct after the death of the deceased was of a guilty person and that this was the reason they wrongly confirmed the conviction of the appellant and imposed an excessive sentence. It is argued by the appellant that he had to his credit sought assistance to take the deceased to the hospital.

It was contended that it was out of prudence he carried the loaded pistol from the scene of crime and handed it over to PW 5, a police officer, rather than leave it at the scene where it could have been accessed and misapplied even by his 3 year old child. It was further submitted on behalf of the appellant that he did not abandon the body any how along the Jinja-Kampala high way but that he had deposited it on the compound near the police station. There was also mention of his decision to rush to the village to collect money to appease his deceased wife's relatives and the arrangement he made to transport the body for burial. Further mention was made of the fact that the appellant reported himself to CID headquarters and wrote a detailed statement immediately after the burial of the deceased. It was therefore contended on behalf of the appellant that such acts pointed to the conduct of an innocent person. The respondent on the other hand argued that the trial Court and the Court of Appeal properly found that the conduct of the appellant after the death of the deceased was that of a guilty person. In Uganda vs George Wilson Simbwa, (supra) the Supreme Court of Uganda reiterated its holding in Isaya Bikumu vs Uganda, (supra) which in turn has a passage from Constantino Okwel alias Magendo vs Uganda, Criminal Appeal No. 12 of 1990 $(SCU)$ **(unreported)** where it was held:

'As defined by Lord Reading, C. J. in R v Baskerville [1916] 2 KB 658, evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words it must be evidence which implicates him, that is which confirms in some material particular not only the evidence that the crime has been committed but also that the defendant committed it. The test applicable to determine the nature and extent of corroboration is the same whether it falls within the rule of practice at common law or into the class of offences for which corroboration is *required....................................*

In any case this court in **Babyebuza Swaibu vs Uganda**, (supra) held that when determining whether controversial evidence proves the guilt of a person accused of a

criminal offence the court considers the evidence as a whole and does not conduct each piece in isolation. We are satisfied the first appellate court arrived at its conclusion after due re-evaluation of evidence.

Ground 3 of appeal too fails.

Ground 4 relates to the legality of the sentence. It is argued that the Court of Appeal sentenced the appellant to 40 years imprisonment without taking into account the period the appellant had spent on remand as well as other mitigating factors. The appellant contends that as such the sentence is illegal. On the other hand it was argued orally on behalf of the respondent that indeed the Court of Appeal took into account the period spent on remand as well as other factors.

At page 42 of the judgment it is stated:

'We have re-considered and re-evaluated all the factors of this case. We find that the trial judge carefully considered both the mitigating and aggravating factors before he imposed the sentence of death upon the appellant'.

Therefore the Court of Appeal after due consideration went on to set aside the death sentence earlier imposed by the trial Court.

Consequently it handed down a fresh sentence. The following words apparent at page 44 of the judgment help put the procedure in perspective:

'We accordingly find the death sentence imposed upon the appellant to be excessive in the circumstances. We set the same aside. We instead sentence the appellant to 40 (forty) years imprisonment, the said term to begin running as from the date of delivery of the Judgment of the trial Court, that is 29th November 2010'.

It is clear from this holding above that the Court of Appeal handed down its sentence regardless of the provisions of Article 23(8) of the Constitution, which provides.

Page 13 of 15

'Where a person is convicted and sentenced to a term of imprisonment for an offence, any period he or she spends in lawful custody in respect of the offence before the completion of his or her trial shall be taken into account in imposing the term of imprisonment'.

As a matter of fact it is acknowledged in the judgment of the Court of Appeal at page 42 thereof that the appellant spent $2\frac{1}{2}$ years on remand before conviction and sentence. It is in view of the failure by the Court of Appeal to take into account the period the appellant spent on remand that we find it imperative to set aside the sentence of 40 years imprisonment handed down by that Court.

Next we take recourse to s.7 of the Judicature Act which vests in this Court powers of the court of original jurisdiction. It provides:

'For the purposes of hearing and determining an appeal, the Supreme Court shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated.'

We have anxiously considered the circumstances of this case as a whole in order to arrive at a fitting sentence. We have considered also the various precedents helpfully brought to our attention on behalf of both the appellant and the respondent. We are awake to the fact that the offence deserves a fitting penalty. We find a custodial sentence of 40 years suitable. At the same time we consider the period of 2 years and 7 months the appellant spent on remand and deduct it from the sentence we would have handed down to him. He is accordingly to serve imprisonment of 37 years and 5 months.

Ground 4 of the appeal succeeds.

Grounds 1, 2 and 3 of this appeal fail and are dismissed accordingly.

Given that ground 4 of the appeal has succeeded, the appellant is to serve the sentence of 37 years and 5 months effective from the date he was first convicted.

day of Wovember Dated at Kampala this... 2019

JUSTICE ELDAD MWANGUSYA, **JUSTICE OF THE SUPREME COURT**

## Thuevalle LADY JUSTICE FAITH MWONDHA, JUSTICE OF THE SUPREME COURT

## M. Usatemve. LADY JUSTICE PROF. TIBATEMWA- EKIRIKUBINZA, **JUSTICE OF THE SUPREME COURT**

....................... **JUSTICE PAUL. K MUGAMBA,** JUSTICE OF THE SUPREME COURT **JUSTICE TUMWESIGYE JOTHAM.**

AG. JUSTICE OF THE SUPREME COURT