Baliyendera v Uganda (Criminal Appeal 109 of 2013) [2023] UGCA 210 (16 August 2023)

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# <sup>5</sup> THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

(Coram: R. Buteera, DCJ, C. Gashirabake, jA, O. Kihika, JA.)

## CRIMINAL APPEAL NO. I09 OF 2OI3

(Arising from Criminal Session No. IICT-00-CR-CS-224/20 I 2)

#### BETWIILN

BALIYENDERA SIMEO APPELLANT

#### AND

#### UGANDA II. T]SPONDI],NT

(lppeal from the Judgment of the lligh Court of Uganda I lolden at Kampala, hy Rugadya Am,oki, J. delivered on 27th September, 2013) 15

#### JUDGMENT OF COURT

#### Introduction

- l.l The appellant was indicted for Aggravated Defilement c/s 129(3)(4Xa) and (c) ofthe Penal Code Act Cap 120. - 20

2.] It was alleged by the prosecution that on the 3"r day of March 2012, at Kyengera Zone A Wakiso district, the appellant had sexual intercourse with a one N. F a girl of3years. The appellant denied thc charge. It was contended by the prosecution that the appellant committed the said oflence at around 6:30pm on that day and that as the mother of the victim girl was looking for her at that time, she saw her emerge from the appellant's room. The victim told the mother that the appellant had had sexual intercourse with her. The mother of the victim immediately noticed that her daughter was wearing her pant"the other way round'. Medical examination showed that the victim was "penetrated'. The appellant, who was working at the samc place of the

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- <sup>5</sup> victim's parents as a night guard, disappeared from that same work place but was traced and eventually arrested after a two-week hunt. He was tried and convicted as chargcd and sentenced to 22 years' imprisonment, hence this appeal. - 3.1 The appellant being aggrieved with the decision of the High Court lodged an appeal in this court. The appeal is premised on two grounds set out in the Memorandum of Appeal as follows; - l. 'l'hot the leorned trial Judge erred in lsw and in.fact when he accepled hearsay evidence, lhereby occasioning a miscarriage of justice to the appellanl. - 2. 'l'hqt the learned 'I'rial Judge eted in law ond Jitct when he sentenced the accused to 22 years' imprisonment, which was excessive in lhe circumstance.

## Representation

4.] At the hearing of the appeal, the appellant was represented by Ms. Maureen Kemigabo. The respondent was represented by Ms. Nabaasa Caroline IJope, Principal Assistant DPP.

## Cround one

That the learncd trial .ludgc crred in law and in fact when he accepted hcarsay cvidcncc, thcrcby occasioning a miscarriage ofjustice to the appcllant.

## 2s Submissions for thc appellant

5.] It was the contention of the appellant that the prosecution did not prove the act of sexual intercourse to constitute the offence of defilement, beyond reasonable doubt. It was submitted that the trial Judge accepted hearsay evidencc as the critical evidcnce to convict the appellant as having committed


- <sup>5</sup> the offcnce. In hcr vicw, it was latal lor court to rcly on cvidcncc yet thc Doctor did not tcstify in court. Counscl submittcd that this oflcndcd section 59 ofthc Evidencc Act Cap 6 that prohibits court lrom rclying on hearsay say cvidencc. - 10 - 6.] Additionally, counscl submittcd that thc othcr form of hearsay is thc evidcncc of thc molher ol thc victim that hcr daughtcr told hcr that thc accused had put his "thing in her susu" - 7.1Counsel also notcs that thcre was no voir dirc that was conductcd. That thc hearsay cvidcncc and thc lact that thc victim could not tcstily should make thc cvidcnce olthc prosccution doubtable. Counscl citcd Ndyaguma David - vs. Uganda, SCCA No.263 of 2006, whcrc the couft hcld that in scxual offences, if thc victim docs not testily then the cvidcnce wilt bc considcrcd circumstantial cvidence. Counsel praycd that this court lollows thc decision of this court in Apea Moses vs. Uganda, CACA No.0653 of 2015, whcre thc court held that hearsay cvidencc was inadmissiblc. - 8.1 It was argued lor the appellant that thc casc olSebuliba Haruna vs. Uganda, CACA. No. 54 of 2002, relied on by thc prosccution was quoted out of contcxt. 'l'hat in Sebuliba (Supra) the mothcr was ablc to scc blood and scmcn coming liom thc victim's vagina which was not thc casc in this matlcr. - 9.] That thcre was non-production of mcdical cvidcncc to support thc prosccution casc that there was pcnctration of the victim. That during cross examination, rclcrcncc was madc to a mcdical rcport thal was signcd by I)r. Ojara who should bc a malc doctor but thc mothcr of thc victim tcstificd that the victim child was examincd by a lcmale doctor. It is lurther submitted that without mcdical cvidcncc, court bascd its dccision to convict thc appcllant solcly on circumstantial cvidencc, which occasioncd a miscarriage ofjusticc

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## <sup>5</sup> to thc appellant. Wc relcr to the casc of Bogerc Charlcs vs. Uganda, SCCA No. l0 of 1996 where thc Supremc Court held that;

"be/bre druwing an infbrencc of the occused's guill ./io,n circumsl(tnliul evidence, lo be sure lhut lhere ore no olher co-exisling circumslances which would weaken or destroy !he infbrances "

- <sup>I</sup>0.] Counscl for thc appellanl submittcd that thcre are a number of circumstances which should weaken the infcrcnce of guilt on the appellant; first thc appcllant stated that thc mother of the victim had held a grudge against him lor having stopped hcr boyfriend access to the home of the victim's mothcr. Secondly, no mcdical evidence was adduced 10 prove that indccd thc appcllant had pcrformcd an unlawlul sexual act on the victim. - <sup>I</sup>l.] Counscl praycd that this honorable court find that the trial court did not adequatcly evaluate thc cvidencc on the record to comc to the conclusion that the accused had committcd the oflcncc as charged.

## Submissions for thc rcspondcnt

- l2.l Counsel lor thc rcspondcnt submitted that the appellant was propcrly idcntificd and corrcctly tinkcd by PWI to thc scxual assault of thc victim who at thc timc was only 3 ycars. l'hat the inability ol thc victim to teslifo was justilicd by hcr age and the trauma that shc suffcred exhibitcd through nightmarcs as tcstified by I'W3. 'l'hat PWI tcstificd that shc saw thc victim coming court liom the appcllant's room aftcr calling him for a long time. -l-hat whcn shc checkcd her, thc panty was upsidc down. Thc victim told her it was the appellant who was rcsponsiblc. 20 25 - l3.l As rcgards thc evidencc from thc doctor, counsel submitted that the trial Judgc acceptcd the cvidcnce ol PWI in as hr as what shc saw in the examination room. Furthcrmore, that the absence of thc victim's evidence did 4l W

<sup>5</sup> not vitiate the rest ol the evidcnce proving the casc against thc appellant. Counscl citcd Lugcmwa vs. Uganda, Criminal Appeal No. 216 of 2017, where this court rclicd on Badru Mwindu vs. Uganda, Suprcmc Court Criminal Appcal No. l5 of 1997, wherc it was held that hearsay cvidencc is admissiblc and can bc rclied upon if thc totality ol thc prosccution evidcncc points to the guilty of the accuscd pcrson. Court f'urther undcrscored thc principtc sct out in thc case of Bassita Hussein vs. Uganda, Suprcme Court Criminal Appcal No. 35 of 1995, whcre Court hcld that it is not a hard and last rulc that the victim should adducc cvidcncc in court.

l4.l Counscl furthcr cited Kobushcshc Karaveri vs. Uganda, Court of Appeal Criminal Appcal No. I l0 of 2008, whcrc this court convicted thc accused bascd on thc cvidence ol'the mothcr and unclc whom shc told that the accuscd had assaultcd hcr.

#### Considcration of Court

- <sup>I</sup>5.1 Wc arc mindf ul that as a lirst Appcllatc Court, our powcrs arc spelt out in Rulc 30(l)(a) of the Judicaturc (Court of Appcal Rules) I)ircctions S.l l3-10.'t'hc Appellate Coun is mandatcd to rc-cvaluatc the cvidcnce bclorc the trial court as wcll as thc judgmcnt and arrivc at its own indcpendcnt judgment on whcthcr or not to allow thc appeal. A first appellatc court is crnpowercd to subjcct the wholc ol thc cvidcncc to a licsh and cxhaustivc scrutiny and makc conclusions about it, bcaring in mind that it did not havc thc opportunity of sccing and hcaring thc witncsscs fjrst hand. 'l'his duty was staled in Scllc & anothe r v Associatcd Motor lloat Co. Ltd.& othcrs, (r968) E. A r23. - l6.l A first Appcllatc Court has jurisdiction to rcvcrsc or affirrn thc findings ol the trial court. A lirst appcal is a valuablc right of the partics and unless

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- <sup>5</sup> restrictcd by law, the wholc case is thercin open for rehearing both on questions ol fact and law. 'l'hc judgmcnt of thc appellate court, must, thercfore, reflect its conscious application of mind and record findings supportcd by reasons, on all thc issues arising along with the contentions put Ibrth, and prcsscd by thc partics lbr dccision olthc appellate court. - 17.l Considcring thc burden of proof and standard olproof in Criminal cascs and based on the prcsumption of innocencc enunciated in Article 28(3) olthc Constitution olthc Ilcpublic of'tJganda 1995, an accuscd person can only be convicted by a court ollaw on thc strength of the prosecution casc and not on the wcakness of thc dclensc casc. 10 - l8.l Wc have carclully studicd the court rccord and the submissions of both counsel. We shall now proceed to re-evaluate the evidence on record. It is not contestcd that thc victim was subjected to unlawful sexual intercourse. What is contcstcd is the participation ol'the appcllant. The appellant faulted the trial court on thc ground that it rclicd on hcarsay to establish the fact that the appellant was thc onc responsible for the alleged sexual act. 15 20 - 19.] Thc general rule on hearsay is wcll articulatcd in the Evidence Act scction 59 (a) which provides thal:

"oral eyidence must, in oll cases v'halever, be direct: that is to say, If it re/irs lo a./itcl v,hich could he seen, it must be lhe cvidence oJ <sup>u</sup> witness v,ho says he or she saw it"

20.1 In Lugemwa vs. Uganda, Court of Appeal, Criminal Appeal No.2l6 of 2Ol7 , this court held that thc hearsay rule is to the cffect that a statemcnt given in proccedings about somcthing other than that by the person who directly pcrceived it, is inadmissible. The rulc against hcarsay is exclusionary in the scnse that it cxcludcs hcarsay evidencc in thc course of proceedings.

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However, this rule has exceptions clearly stated under section 30 of the Evidence Act which are not applicable to the circumstances of this case.

In making the above analysis the Court made reference to Apea Moses $21.$ vs. Uganda Criminal Appeal No. 0653 of 2015, where this court captured the principle regarding hearsay evidence. It stated that;

> "our understanding of the position articulated in the decision in the Badru Mwidu case (supra) is that in all cases, whether involving hearsay evidence or not, the Court may only convict the accused person if it is satisfied that the evidence adduced justifies such a decision."

In Badru Mwindu vs. Uganda, Supreme Court Criminal Appeal No $22.]$ 15 of 1997, court held that hearsay evidence is admissible and can be relied upon if the totality of the prosecution evidence points to the guilt of the accused person. This position is consistent with the principle set out in the case of Bassita Hussein vs. Uganda, Supreme Court Criminal Appeal No. **35 of the 1995,** where court held that;

> "Though desirable, it is not a hard and fast rule that the victim's evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond *reasonable doubt'"*

- In Omuroni vs. Uganda, (2002) 2 EA 508, court held that evidence of $23.$ people who are not eye witnesses but were told of a crime of defilement is admissible. - In this particular case we find that after re-evaluating the evidence on $24.]$ record, the trial Judge properly evaluated the evidence. The issue of participation rests mostly on proper identification of the appellant. The


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$5$ - l. I'he testimony of u single u'itness regarding identification must be tested wilh the gre1tesl care. - 2. l'he need .[or cuution is even greater when il is knou,n lhal lhe condit ion.; .fcloring a correct identiJication were dif/icult. - 3. Where the conditions were diflicu, whal is needed before convicting is other et,idence poinling lo lhe guilt. - 1. Otheru,isc, subjecl lo certain well knou,n exceptktns, it is lawful to conricl on the identi/ication o/ a single witness so long as the judge warns him or herself of the danger oJ'basing a conviction on such evidence alone. - 25.) In asscssing whcther the trial court adhercd to the above principles we find that on the first issue of caution, the trial Judge properly warned himself on rclying on the evidence of a single identifoing witness. The trial Judge held that;

" During lhe summing up lo lhe rr,rse.rJor.r I warned lhem lo exercise caution u,han dealing with identificcttion evidence. The need for coulion is even greslcr where such evidence is.from a young person. I warned myself similarly. "

26.1 On whcther thc conditions are favorable for proper identification, the court usually looks at the familiarity with the appellant, length of time spent with the victim and the time when the incident occurred. '[he appellant was employcd by thc land Iord ol PWI and PW 3. 'l'he appellant had worked on thosc premiscs for ovcr thrce ycars. However, PWI and PW3 had only spent 1 year as tenants in that place. According to the record it was an agreement that evcry tenant pays IJgx 50,000/: (fifty thousand shillings) as his fee for guarding thc premiscs.

- <sup>5</sup> <sup>27</sup>.l On the lcngth of tirnc whe n testilying, PW I statcd that shc spcnt almost l5minutes looking lor thc child.'l'his was cnough timc to idcntifo thc appellant as thc assailant. Additionally, the appcllant also rcmoved thc victims pant. 1'here was close proximity that lavorcd propcr idcntification ol thc appellant. 'l'he mothcr lound whcn thc victim had put on thc pant the othcr way round and when shc askcd her, she said it was thc appellant that had dressed her up likc that. - 28.1 On that fateful day, according to I)Wl, shc rctumcd home at 6pm and it is the appcllant that opcncd lor hcr. At 6pm, it is still vcry bright lbr propcr identification. As much as shc was scarcd, thc atmosphere was calm for hcr to have good judgment. l:urthermore, whcn shc callcd scveral timcs without rcsponse and alter moving around the house, shc saw her daughter coming out of thc appellant's room. We arc convinccd that the conditions wcrc lavorablc lor proper idcnti Iication. - 29.1 Othcr than the lact that thcrc wcrc propcr conditions ol'idcntilying thc appcllant as thc assailant of the victim, thcrc is corroborativc cvidcnce to that cffcct. 'l'hc appcllant disappcared lrom thc rcsidcncc whcrc hc had bccn working for ovcr a month yct hc was going to work at World l:ood Program as a casual laborer. Thc appcllant raiscd an alibi that he was not being paid that is why he lcft the placc, but this has been rcbutted by thc ovcrwhelming cvidence ol thc prosccution as shown above. Irrom thc cvidcncc on record wc are convinccd that thc trial court properly cvaluatcd the cvidence on rccord and rcached a propcr dccision. - 30.1 Wc find that the trial Judgc gavc a wcll dctailcd judgment on this mattcr and we entirely agree with thc findings therein. - <sup>3</sup>l.l This ground fails. 30

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#### Ground 2 5

That the learned Trial Judge erred in law and fact when he sentenced the accused to 22 years' imprisonment, which was excessive in the circumstance.

#### **Submissions for the appellant**

- $32.$ It was submitted that a sentence of 22 years' imprisonment was 10 excessive in the circumstances of this case. Counsel submitted that they are alive to the fact that the maximum sentence of aggravated defilement is death sentence, which was not preferred in this case. However, in her view imposing custodial sentence on aggravated defilement under section 129(3) and $4(a)$ of the Penal Code and the Constitution (sentencing Guidelines for 15 Courts of Judicature) (Practice) Directions, 2013, the starting point should be 35 years' imprisonment, which could be increased basing on aggravation factors or reduced on account of the relevant mitigating factors. - 33.1 She referred to Ninsiima Gilbert vs. Uganda, Crim. Appeal No. 180 of 2010, where the Court of Appeal opined that the sentencing guidelines have to be applied taking into account the past precedents of court, court substituted a 30year sentence with 15years' imprisonment. Counsel cited Kato Sula v. Uganda, CACA No. 30 of 1999, where court upheld an 8year sentence, in **Bashir Ssali vs. Uganda, SCCA No. 40 of 2003**, the Supreme Court reduced 16 years' sentence to 14 years. And **Tujunirwe v. Uganda**, **CACA No.26 of 2006,** where court upheld a 16year sentence. - Counsel submitted that the seriousness of the offence is mitigated by $34.$ the fact that the appellant was a first offender, remorseful, at 49 he has prospects of reform, he is HIV positive but did not pass the same to the victim.

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- <sup>I</sup>Ie has lamily responsibilitics. 'l'hc period spcnt on rcmand was not deductcd Iiom the custodial 22 years. - 35.] Counsel prayed that this scntencc bc rcduccd to l0years.

# Submissions for thc resnondcnt

- 36.1 Counscl for thc rcspondcnt submittcd that thc Suprcmc court has sct principles under which an appcllate court can interlcrc with thc scntencing discretion of the court. It can only interl'erc if thc trial court applied wrong principlcs while passing the judgmcnt. Counsel citcd Othieno John Vs. Uganda, Criminal Appcal. No. 174 of 2020. - 37.1 Counsel submittcd that thc appcllanl has not dcmonstrated how the scntencc was harsh when the maximum scntcnce lor aggravatcd dcfilcmcnt is death scntcnce. In the Othieno John (Supra) coufl lound no justification to intcrfcrc with 29 years' custodial scntcncc ofan IllV positive appcllant whcrc thc victim was l4ycars. In that casc coufl rcvicwcd cascs of sirnilar facts. Likc Bachwa Benon VS. Uganda Appcal No. 869 of 2014, whcrc the appellant was sentenced to lilc irnprisonmcnt. In llonyo Abdul vs. Uganda Appeal No 07 of 2011, wherc a lilc scntcncc was conllrmcd. Musajjawaza Vincent vs. Uganda Appcal no 366 of 2O14, whcrc lilc imprisonment was substitutcd with 27 ycars' scntcnce. - 38.1 Counscl praycd that scntcncc ol22 ycars' imprisonmcnt was sufficicnt. Counscl also submittcd that thc ycars spcnt on rcmand were considercd by thc trial judgc.

# Consideration of Court

39.] Wc agrce with thc submissions of both partics rcgarding thc position of thc law on sentencing. It has to be noted that the scntcncing guidclines do not

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- take away the power of court to exercise its discretion to pass an appropriate sentence. Counsel for the respondent rightly noted that an appellate court will only interfere with a sentence if the trial court has followed the wrong principles while sentencing. The appellant in this case has not demonstrated any principle flouted by the trial judge while handing down the sentence. - 10

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$40.1$ Therefore, guided by the precedents cited by counsel and the principle of consistency provided for under principle $6(C)$ of the sentencing guidelines, which provides for consistency in passing sentences, and bearing in mind that the offence of aggravated defilement attracts a maximum sentence of death penalty, both the mitigating and aggravating factors, we came to the conclusion that a sentence of 22 years' imprisonment is appropriate in the instant case.

$41.$ It is not true as alleged by counsel for the appellant that the trial court did not consider the years spent on remand. The court was very alive to this fact. The sentencing regime in 2013, did not require the judge to arithmetically deduct the years spent on remand.

$42.]$ This ground fails

$43.1$ Consequently, the appeal fails.

### We so Order

Dated at Kampala this .................................... 25 **RICHARD BUTEERA**

**DEPUTY CHIEF JUSTICE**


**CHRISTOPHER GASHIRABAKE**

**JUSTICE OF APPEAL**

OSCAR KUNIKA **JUSTICE OF APPEAL**

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