Mulindwa Robert v Uganda (Criminal Appeal No. 0180 of 2017) [2023] UGCA 396 (14 July 2023)

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT MASAKA CRIMINAL APPEAL NO. 0180 OF 2017

(Coram: R. Buteera, DCJ; C. Bamugemereire & E. Luswata, JJA)

# MULINDWA ROBERT ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# UGANDA :::::::::::::::::::::::::::::::::::

(Appeal from the Judgment of the High Court of Uganda at Masaka, Henrietta Wolayo, J, in Criminal Session Case No. 01 of 2014)

#### **IUDGMENT**

## **Introduction**

The appellant was convicted of aggravated defilement contrary to Sections 129 (3), 4 (a) and 189 of the Penal Code Act, Cap 120, and sentenced to 24 vears' imprisonment.

## **Brief Facts**


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It was the prosecution case that on 28<sup>th</sup> May 2013, Kusasira Eunice, one of the victim's teachers took her for a bath. She got her knicker, washed and realized some slippery substances on it. The teacher found it unusual for a girl that age to have such substances on her knicker. On 1<sup>st</sup> June 2013, they checked her again and found pus. They asked her what had happened and she revealed that while she was still at home, someone called Munana took her to his house and defiled her. He told her to leave and not to tell her mother what had

happened. 25

> On 13<sup>th</sup> June 2013, the victim was issued a PF3A for medical examination at Kalisizo Hospital and she was found to be 4 years and 8 months old. She had

lacerations and reddening in her private parts with excessive pus discharge' It was concluded that these injuries were as a result of foreplay'

The appellant denied having defited the victim but stated that he had <sup>a</sup> grudge with the victim's mother because she had previously falsety claimed that he had stolen a phone. He further told court that at the time of the alleged offence, he was not at home during day time'

The appellant was tried, convicted and sentence d to 24 years' imprisonment, hence this Appeal.

# Grounds of APPeal

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- 1. The learned trial Judge erred in law and fact when she failed to adequately evaluate all the material evidence adduced at the trial and hence reached an erroneous decision which resulted into miscarriage of justice. - 2. The learned trial Judge erred in law and fact regarding summing up to the assessors. - 3. The learned trial Judge erred in law and fact when she sentenced the appetlan t to 24 years' imprisonment, which sentence was illegal, harsh andexcessiveinthecircumstancesofthecase.

# Representation

At the hearing of the Appeal, the appellant was represented by Mr' Sam Ssekyewa, on state brief, while the respondent was represented by Mr. Sam Oola, Senior Assistant DpP. Both counsel prayed that Court adopts their written submissions. This application was allowed. !o

# Case for the aPPellant

Ground <sup>L</sup> 25

> counsel for the appellant submitted that the prosecution evidence was not concluslve as to when the vtctim was deflled. That the evtdence showed that

the victim was on treatment for syphilis during the holidays even before she went back to school. That whereas PW2 testified that the victim had revealed to the doctor the identity of the person who defiled her to be the appellant, the victim told Court that she did not tell the doctor about the defilement.

It was counsel's contention that had the learned trial Judge wholesomely $\mathsf{S}$ considered the evidence on record, she would have come to a different conclusion of acquitting the appellant.

# Ground 2

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Counsel submitted that the learned trial Judge gave the assessors highly summarized and brief directions which offended the legal requirements for summing up as provided for under Sections 82 (1) and (3) of the Trial on Indictments Act.

That the learned trial Judge never alluded to either the law or the facts as led by the prosecution, the contradictions and inconsistencies, if any, the evidence of the various witnesses and their effect on credibility. More so, that the record did not show whether the assessors were sworn in.

It was counsel's contention that that was a fundamental/ major flaw in the proceedings rendering the trial defective. He cited Abdu Komakech v Uganda; S. C. C. A. No. 01 of 1988, in support of the contention.

#### Ground 3 $\Omega$

Counsel submitted that the appellant being 24 years, he was of youthful age and as such, the sentence of 24 years' imprisonment was harsh and manifestly excessive. He cited Guideline 9 of the Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) (Directions, 2013, which provides that in imposing a custodial sentence court shall consider the age

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of the offender and his/ her remorsefulness.

He further argued that the sentence was inconsistent with other decisions where the convicts in similar offences were given lesser sentences. He referred to and urged this Court to follow earlier decisions where convicts of similar offences of aggravated defilement were given lesser sentences. He

cited Ninsiima Gilbert v Uganda; C. A. C. A. No. 180 of 2010, where the Court $\mathsf{S}$ of Appeal set aside a sentence of 30 years' imprisonment and substituted it with a sentence of 15 years' imprisonment for a 29-year-old appellant. He also cited Birungi Moses v Uganda; C. A. C. A No. 177 of 2014, where a sentence of 30 years' imprisonment was reduced to 12 years' imprisonment in respect of a 35-year-old appellant convicted of defiling an 8-year-old girl. 10

He prayed that Court considers the fact that the appellant was a first time offender with no previous criminal record, was still of youthful age and potentially useful to the nation and his family, and sentence him to a lesser sentence.

#### Case for the respondent 15

## Ground 1

Counsel for the respondent submitted that regarding when the offence was committed, the particulars of the offence as per the indictment indicated that the appellant performed a sexual act with the victim, A. L., in the month of May 2013 at Dimo Landing site in the Masaka District. That according to PW1, when the child had completed school holiday and was supposed to return to school, she was bathing her when she noticed pus in her pants and thought that the child had syphilis. She asked the child whether she was sick and she said she was not and that she had no pain. PW1 took the child to a clinic and informed the medical worker that she had syphilis. She was not examined by the medial worker.

PW2, the School Bursar at the victim's school testified that the child was taken for second term and while she was washing her panty, she noticed something slippery thereon. That she together with another lady examined the victim

and saw pus in her private parts. That this was about May or June 2013. She then informed the School Director. She stated that she received the child at school on 28/05/2013 and took her for medical examination in June 2013.

PW3 explained that she was playing with other children in the neighborhood where the appellant lived. That when she went for a short call in the bathroom, the appellant got hold of her and carried her to his house where he removed her panty and his trouser and started to do bad things on her. Court observed during trial, that the victim pointed to the male sexual organ as what the appellant used on her sexual organ. She further testified that in the evening, her mother was bathing her when she saw pus but she did not tell the mother what happened because the appellant had told her not to tell anyone.

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P. Exh 1, the medical examination report on Police Form 3A dated 13/06/ 2013 indicated that the child had genital ulceration associated with reddening. There was also pus discharge from the genitals.

Counsel contended that, put together, the evidence of PW1, PW2, PW3 and P. Exh 1, shows that the child was defiled in the month of May 2013 when she was on school holiday.

On the failure of the child to report to her mother about what had happened to her, counsel submitted that PW3 explained that the appellant had told her not to tell anyone that he had defiled her. He stated that the victim, in crossexamination, explained that the appellant had threatened that if heard anything about the incident, he would know that it was her who revealed it. It was counsel's contention that this explained why the victim could not report to the appellant's land lady who was also the mother of the children she had been playing with.

Counsel admitted that PW1 testified that she thought that the victim had syphilis and when she took her to the clinic, the medical worker did not examine her. PW4, father of the child, testified that the victim had earlier

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been treated by Dr. Matovu of Kalisizo Hospital, and he had advised him to take the child back to Hospital after three months. That it was the same doctor who examined the child on 13106 /20t3 and filled P. Exh l. She was tested for sexually transmitted diseases and the results were negative. To counsel, the suspicion by PW1 that the child had syphilis was therefore ruled out, or it had perhaps healed. He further submitted that whether or not the victim had syphilis infection was immaterial since the medical examination showed that the injuries and pus discharge in her genitals were caused by foreplay and not syphilis.

Concerning the alleged contradiction between the evidence of PW2 and PW3 as to whether the latter told the doctor the identity of the person who had defiled her, counsel cited PW3's evidence in chief at page 10 of the record as follows: 10

> "At school I was taken to see a doctor. I was taken by the bursar. They asked me and I told them Munana defiled me"'

Counsel submitted that, in cross- examination, at page 11 of the record, PW3 stated that she did not tell the doctor about the defilement. That P. Exh. I indicates in paragraph 4 that PW3 narrated the following information to the doctor who examined her:

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"She was atlegedly defiled by a man identified as "Munana" who Found her in Bridget (a friend's home. Removed off her knicker And started foreplaying her on top after later poured ...fluid on Her. Threatened to bit her if she reported." (Sic')

Counsel argued that the contradiction in PW3's evidence was cured by P. Exh. 1, and the question may have been lost in translation. He added that the question of whether or not she told the doctor that she was defiled would not discount the value of her evidence on oath, noting that she was forthright in her testimony and left a good impression on the trial Judge as a truthful witness. 25

It was his submission that there was sufficient evidence to prove that the appellant performed a sexual act with the victim and that the trial Judge properly evaluated the evidence. He added that the appellant was a neighbor to the victim's mother, the incident happened during broad day light in the afternoon when the appellant took the victim to his house. And more so, the victim described how the appellant used his male sexual organ on her sexual organ after removing her panty and his trouser. She reported neither to the mother nor to the school bursar because of the appellant's threats.

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He further submitted that the medical report which was admitted in evidence offered corroboration to the victim's testimony. That further corroboration came from the evidence of pWl and PW2, both of whom noticed that the child had pus discharge from her private parts. PWl testified that she had known the appellant as 'Munana' for about two years'

The appellant himself admitted that he was called 'Munana' because he used to play number g in a football club. Whereas he stated that he was arrested and charged because of the allegation by PWl that he had stolen her phone and therefore pW1 had a grudge with him, counsel submitted that this claim of a grudge had not been put to PWl in cross- examination. And that she had only learnt from pW2 that the child had been defiled since the victim had not disclosed to her mother what had happened. It was counsel's contention that the allegation of a grudge was simply an afterthought, and in any case, had no bearing whatsoever on the case against him' 15 20 O

He submitted that under Section 133 of the Evidence Act, no particular number of witnesses is required to prove a fact. He cited Ntambala Fred <sup>v</sup> Uganda; Supreme Court Criminal Appeal No. 34 of 2015, where it was observed that a conviction can be solely based on the testimony of the victim as a single witness, provided that the court finds her to be truthful and reliable. That the Court stated that corroboration is evidence from other

sources which supports the testimony of the complainant and connects or tends to connect the accused person to the commission of the offence.

He submitted that in the instant case, the trial Judge correctly found that PW3's evidence had been corroborated by the evidence of PW1, PW2 and P. Exh. 1 and that the appellant had been placed at the scene of crime by the victim. He prayed that ground 1 fails for lack of merit.

### Ground 2

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Counsel submitted that the record of proceedings of the trial court did not indicate whether the two assessors took oath before the commencement of the hearing. That, however, it was shown that they attended court until the conclusion of the trial as required by Section 70 of the Trial on Indictments Act (TIA).

Counsel cited Section 139 of the TIA which provides that no finding, sentence or order passed by the High Court shall be reversed or altered on appeal on account of any error, omission, irregularity or misdirection in the proceedings during the trial unless it has in fact occasioned a miscarriage of justice. To counsel, the test was whether the verdict of the trial court would have been different if the assessors had taken oath. It was his view that the oath would not change the evidence in any way and that the omission to swear in the assessors was a mere technicality that did not occasion a failure of 20 justice.

On the second leg, counsel submitted that the TIA neither provides the format for summing up to assessors nor an indication of how detailed the summing up should be. He stated that in summing up to the assessors, the learned trial Judge gave them directions on the indictment against the appellant and its particulars, the duty of the prosecution to prove the case, the ingredients to be proved and that they should consider the evidence as a whole, including the defense case, in giving their opinion. Further, that the assessors were able to render their opinion.

Counsel contended that although the summing up was done in a summary manner, it covered all the aspects of the case and there was nothing on record to show that there was any misdirection to the assessors by the trial Judge. That no failure of justice was thereby occasioned. He prayed that ground 2 should be dismissed.

## Ground 3

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Counsel cited the authorities wherein Courts have stated that an appropriate sentence is a matter for the discretion of the trial court and that a sentence must depend on the facts of each case. That an appellate court will not normally interfere with the exercise of discretion by the trial court unless it is demonstrated that the court acted on a wrong principle, ignored material factors, took into account irrelevant considerations or on the whole that the sentence was illegal or manifestly excessive. He cited Oumo Ben alias Ofwono v Uganda; SCCA No. 20 of 2016 where in the Court referred to Kiwalabye v Uganda; SCCA No. 143 of 2001 and Rwabugande Moses v Uganda; SCCA No. 25 of 2014.

He submitted that the trial Judge considered both the aggravating and mitigating factors; considered that the appellant was a young man in his 30s. That she also took into account the period he had spent on remand by deducting it from the sentence she deemed appropriate. He argued that the appellant omitted a very serious offence when he defiled a 4-year-old girl, shattered her innocence, caused her injuries in her genitals and that as such, the sentence meted by the trial Judge was appropriate.

He cited the case of **Oumo Ben alias Ofwono** (supra), where the appellant was aggravated defilement and sentenced to 26 vears' convicted $\quad\text{ of }\quad$ $25$ imprisonment. He was a biological father to the victim who was aged 3 and a half years. He was aged 27 years. He appealed to the Court of Appeal which upheld the sentence. On further appeal to the Supreme Court, the sentence was confirmed. He also referred to Musabuli Sedu v Uganda; C. A. C. A No. 111 of 2011, where the appellant was convicted of aggravated defilement and sentenced to 25 years' imprisonment. The victim was 9 years old. His appeal against sentence to this Court was dismissed and the trial court sentence upheld.

Counsel thus prayed that this Court finds that the sentence of 24 years' $\mathsf{S}$ imprisonment was neither harsh nor excessive, and that the conviction and sentence be upheld and the Appeal dismissed.

## **Court's consideration**

It is our duty as the first appellate court to re-appraise the evidence at the trial court and come to our own conclusion. See Rule 30 (1) (a) of the Judicature (Court of Appeal) Rules. In doing so, we have to bear in mind that we did not have the opportunity to see and hear the witnesses testify. See Selle and Another vs Associated Motor Boat Co. [1968] EA 123, Pandya vs R. [1957] EA 336, Ruwala vs R [1957] EA 570, and Kifamunte Henry vs Uganda Criminal Appeal No. 10 of 1997 (Supreme Court).

It is the above duty that we shall exercise in resolving the grounds raised in this Appeal.

## Ground 1

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The first ground of appeal reads:

'The learned trial Judge erred in law and fact when she failed to adequately evaluate all the material evidence adduced at the trial and hence reached an erroneous decision which resulted into miscarriage of justice.'

Whereas counsel for the respondent did not challenge this ground for being too general, it is important that this Court does not let the flouting of the 25 Rules of this Court to pass. In the case of Muhereza Bosco & Katureebe Boaz v Uganda; C. A. C. A No. 066 of 2011, this Court found the second ground of appeal too general. It observed:

> "In any event it is superfluous as this court has a duty to reevaluate the evidence as a first appellate court. We would strike it out as it offends Rule 66 (2) of the Rules of this Court which requires that a memorandum of appeal sets forth concisely and without argument the grounds of objection to the decision appealed against specifically the points of law or mixed fact and law which are alleged to have been wrongly decided."

Similarly, the first ground of appeal in this case is too general. It does not point out what specific point of law or fact or mixed law and fact that the learned trial Judge erred in. specificity is very important because then the appellate court is not sent on an expedition of retrying the whole case.

We, therefore, strike out ground one for offending Rule 66 (2) of the Rules of 15 this Court.

## Ground 2

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Counsel for the appellant faults the learned trial Judge for giving an overly summarized version of summing up to the assessors. The law on summing up to assessors is provided for under S. 82 (1) of the Trial on Indictments Act, Cap 23, which provides that:

> "(1) When the case on both sides is closed, the judge shall sum up the law and the evidence in the case to the assessors and shall require each of the assessors to state his or her opinion orally and shall record each such opinion. The judge shall take a note of his or her summing up to the assessors."

It is worth- noting that the above law does not lay down a strict guideline or manner in which the trial Judge shall sum for the assessors. It would appear that what matters is that the assessors are given sufficient information to enable them give an opinion. What then amounts to sufficient information?

5 In the case of Tindyebwa Emmanuel & 2 others v Uganda; Criminal Appeal No. 3g6 of 2017, this Court addressed the question of the manner in which summing should be done. It stated:

> ,,This section has been a subject of consideration in many decisions. In Byamugisha v Uganda (1987) HCB 4 the Supreme Court while discussing the duty of the trial court in summing up held that;

> .. When summing up to the assessors the Trial Judge should not be too sketchy. He should have, when doing so, explained to the assessors ingredients of the offence. .the duty of prosecution to prove their case against the accused persons beyond reasonable doubt, and that the benefit of any doubt had to be given to the accused persons"""

> This court in Yunus Wanaba v Uganda CACA No. 156 of 20OL held that;

> "As this section indicates, the law does not require the judge to write out a detailed essay of her summing up. lt only requires brief notes, as the assessors would have heard all the evidence already. They however need the law explained. . . That is all the ingredients of the offence and the burden of proof...it must be pointed out that there is no set formula of words to use- they must however be directed that the onus is on the prosecution throughout and secondly that before they convict, they must feel sure of the accused's guilt"'

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From the above excerpt, it would appear that courts need to strike a balance between being too sketchy and writing an essay. That balance can equally be hard to determine. It is, therefore, the guidance of this Court that summing up for assessors should be done in such a manner as to capture a clear explanation of the ingredients of the offence, and a guidance to the assessors that they should use the evidence they have heard in court to determine whether the prosecution has proved the ingredients of the offence or not. Court need not reproduce the evidence that was adduced during trial but simply high light the key features. Ultimately, whether the summing up was done would also be reflected in the opinion given by the assessors. That can indicate whether they understood what their duty was or not. As such, the appellate court should consider the whole sum total of the effect of the summing up and not just how the summing was done. After all, the most important thing is to ensure that whatever and however it was done did not occasion a miscarriage of justice or have the effect of disadvantaging the accused person.

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And that equally means that the summing up notes must always be taken down. It is only then that the appellate court can determine whether the summing up was sufficiently done or not. In Simbwa Paul v Uganda; CACA No. 23 of 2012, where this Court noted that:

> "It is a good and desirable practice that the substance of the summing up notes to the assessors appears in the record of proceedings. It is the only way an appeal court can tell whether the summing up was properly done."

Turning to the instant case, we will reproduce the excerpt of the summing $25$ up, for ease of reference. It states:

'Directions to assessors

The accused person is indicted with aggravated defilement. Particulars as per indictment. The state has a duty to prove the following ingredients beyond reasonable doubt.

$\mathbf{I}$ ) Age of the victim

2) Performance of the sexual act

3) Participation by the accused person

Consider evidence as a whole including the defence case and give an opinion on whether the accused is guilty or not guilty of aggravated defilement of Amumpaire Liisa.

Court: case adjourned for assessor's opinion on 10.5.2017.'

From this excerpt, it is evident that the learned trial Judge listed the ingredients of the offence. She did not proceed to sum up the evidence for the assessors. It would be desirable that the summing up of evidence to the assessors is done by the trial Judge.

- In the circumstances of this case, was there an error? Was the error fatal? The 15 trial Judge instructed the assessors to 'consider the evidence as a whole including the defense case and give an opinion on whether the accused is guilty or not guilty of aggravated defilement of Amumpaire Liisa'. - 20

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A look at the record of appeal shows that the assessors were able to give a clear opinion that was based on evidence that they cited and gave as reason for the advice they gave to Court. They advised the trial Judge that the prosecution had proved that the appellant defiled the victim. We find that the manner in which the Trial Judge conducted the summing up, and not incorporating the summary of the evidence adduced by both the prosecution and the defense, did not occasion a miscarriage of justice to justify nullification of the trial.

Counsel wondered whether the assessors had even been sworn in' A look at page 6 of the record of appeal shows that the assessors were indeed sworn in.

In the result, this ground fails for lack of merit'

s Ground <sup>3</sup>

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The Supreme court has held that consistency is no ground for interfering with the trial court's sentencing discretion. See Kaddu Kavulu Lawrence v Uganda; S. C. Criminal Appeal No. 72 of,2OL8'

In the recent times, a trend has consistently cropped up where counsel for the appellant seeks interference with the sentence given by the trial Judge on ground that it is inconsistent with sentences in other cases of a similar nature.

We wish to emphasise that interference with the sentencing discretion of <sup>a</sup> trial court is a very delicate act that appellate courts should not do lightly or even mechanically. Courts have laid down circumstances under which the appellate court may interfere with a trial court's sentence. See Kiwalabye Edward v Uganda; sccA No. 143 of 20oL; Rwabugande Moses v uganda; SCCA No. 25 of 2014.

In Rwabugande (supra), the Supreme court dealt with that issue in great detail. we wilt quote from it extensively, as follows:

> "In Kyalimpa Edward vs. Uganda; Supreme Court Criminal Appeal No.1o of 1995, the principles upon which an appellate court should interfere with a sentence were considered. The Supreme Court referred to R vs. Haviland (1983) 5 Cr. App. R(s) 109 and held that:

> An appropriate sentence is a matter for the discretion of the sentencing judge. Each case presents its own facts upon which

a judge exercises his discretion. It is the practice that as an appellate court, this court will not normally interfere with the discretion of the sentencing judge unless the sentence is illegal or unless court is satisfied that the sentence imposed by the trial judge was manifestly so excessive as to amount to an injustice: Ogalo s/o Owoura vs. R (1954) 21 E. A. C. A 126 and R vs. MOHAMEDALI JAMAL (1948) 15 E. A. C. A 126. (Emphasis ours)

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We are also guided by another decision of this court, Kamya Johnson Wavamuno vs. Uganda Criminal Appeal No.16 of 2000 in which it was stated:

It is well settled that the Court of Appeal will not interfere with the exercise of discretion unless there has been a failure to exercise discretion, or failure to take into account a material consideration, or an error in principle was made. It is not sufficient that the members of the Court would have exercised their discretion differently. (Emphasis Ours)

In Kiwalabye vs. Uganda, Supreme Court Criminal Appeal NO.143 of 2001 it was held:

The appellate court is not to interfere with sentence imposed by a trial court which has exercised its discretion on sentences unless the exercise of the discretion is such that the trial court ignores to consider an important matter or circumstances which ought to be considered when passing the sentence."

In the case of Ogalo s/o Owoura v R Criminal Appeal No. 175 of 1954, the 25 Court of Appeal for Eastern Africa held as follows:

> "The principles upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly

established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless, as was said in James v. R. (1950) 18 E. A. C. A. 147, "it is evident that the Judge has acted upon some wrong principle or overlooked some material factor". To this we would add a third criterion, namely, that sentence is manifestly excessive in view of the the circumstances of the case: R. V. Shershewsky, (1912) C. C. A. 28 T. L. R. 364

Unless the above cited circumstances exist, the appellate court would have no basis for interfering with the trial Court's sentence. It is only when Court finds that the circumstances exist, that it can then exercise the powers and authority of the original court to re-sentence and in so doing, then it may be guided by sentences that have been given in similar offences. That is in a bid to ensure consistency of sentencing so as not to give a sentence that is either manifestly too harsh and excessive or manifestly too low. We hope this position will offer guidance on this subject of consistency in sentencing, going forward.

In this case, the appellant was convicted of aggravated defilement and sentenced to 24 years' imprisonment. Whereas counsel for the appellant cited cases where this Court has given lesser sentences in a similar case, counsel for the respondent also cited a set of authorities where this Court has given sentences consistent with the sentence that the appellant was given. So, the question would be; what should the sentence be consistent with?

Without evidence that the learned trial Judge gave an illegal sentence or did not consider some material factor, or any other of the circumstances laid

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down in the authorities cited above, there would be no basis for interfering with the sentence she gave to the appellant.

In this case, the learned trial Judge considered both the aggravating and mitigating factors and even mathematically deducted the period that the appellant had spent on remand. We accordingly uphold the sentence of 24 years' imprisonment.

This ground equally fails.

On the whole, this appeal fails for lack of merit.

Dated at Masaka this $\frac{1}{1}$ Day of $\frac{1}{1}$ ............ 2023

Richard Buteera

**Deputy Chief Justice**

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**Catherine Bamugemereire Justice of Appeal**

Eva K. Luswata **Justice of Appeal**