Musoke v Uganda (Criminal Appeal 127 of 2020) [2023] UGCA 199 (7 August 2023)

Full Case Text

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# THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

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

## CRIMINAL APPEAL NO. 0127 OF 2020

(Arising from Criminal Session No. HCT-00-CR-CS 099/2017)

## **BETWEEN**

MUSOKE PETER SONKO...................................

**AND**

UGANDA……………………………………………………………… RESPONDENT

(Appeal from the Judgment of the High Court of Uganda Holden at Kampala, by Flavia Senoga Anglin, J. delivered on 23rd September, 2019) 15

#### **JUDGMENT OF COURT**

### **Introduction**

of the Penal Code Act Cap 120.

1.] The appellant was indicted for aggravated defilement $c/s$ 129(3)(4)(a) and (c)

- 2.] The facts in the lower court were that the appellant had sexual intercourse with the victim of 12 years between September and October 2016 at Gitta village, Gomba Sub-county in Wakiso district. The victim is his biological daughter. It was alleged that he had sexual intercourse thrice with the victim whenever the mother was away. The victim told the mother, who in turn reported to the L. C and the Police. The appellant was arrested, tried, convicted and sentenced to 25 years' imprisonment. - 3.] The appellant being aggrieved with the decision of the High Court lodged an appeal in this court. The appeal is premised on three grounds set out in the Memorandum of Appeal as follows;

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- 5 l. That the leorned tial Judge ened in lmt and infact when shefailed to adequately evaluate all the evidence adduced be.fore her thu.s arriving at a wrong conclusion. - 2. That the learned trial Judge erred in lco ond fact when she relied on unreliable retracted and repudiated chorge and caulion stalemenl to convict lhe appellant. - 3, That the learned trial Judge erued in law and fact in sentencing the appellanl lo 25 years' imprisonmenl which senlence was deemed illegol, manifestly harsh and excessive in the circumslances.

#### Representation

4.] At the hearing of the appeal, the appellant was represented by Mr. Emmanuel Muwonge, on State brief. The respondent was represented by Ms. Lilian Omara, Chief State Attomey, from the office of the Director of Public Prosecutions. 15

## Ground I & 2

That the learned trial Judge erred in law and in fact when she failed to adequately evaluate all the evidence adduced before her thus arriving at a wrong conclusion; 20

That the learned trial Judge erred in law and fact when she relied on unreliable retracted and repudiated charge and caution statement to convict the appellant.

## Submissions for the appellant

5.] It was submitted for the appellant that it is a legal requirement that the prosecution has to prove its case against the accused beyond reasonable doubt. (Woolmington vs. DPP, (1935) AC, 462). The prosecution must prove each ingredient of the offence beyond reasonable doubt. Counsel conceded that the prosecution proved the fact that the victim was below 18

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- 5 years, and that the sexual act was performed on the victim. However, the prosecution failed to prove the participation ofthe appellant. - 6.] Counsel stated that the appellant raised an alibi that on the 13'r' day of October 2016, he was not at home with the victim. He was at his work place making bricks. Counsel cited Asega & 4 others vs. Uganda, CACA No. 48 of 201I, where court held that it is trite law that the accused does not have the burden to prove his alibi. That it is up to the prosecution to destroy it by putting the accused person squarely at the scene ofthe crime and thereby proving that he is the one who committed the crime. (See Sekitoleko vs. Uganda, [9681 E. A 531). The burden rests on the prosecution and does not shift. - 7.] Counsel for the appellant submitted that the evidence of the prosecution was littered with inconsistencies and contradictions. Counsel argued that when the Medical Officer, Dr. Kimwero Mohamed, examined her she was pregnant. However, the victim denied ever being pregnant. Counsel argued that the second medical examination did not find the victim pregnant. In counsel's view this was a major contradiction. 15 20 - 8.] On contradictions, counsel cited Candiga Swadick vs. Uganda, CACA No. 23 ol2012, where this court held that contradictions and inconsistencies will usually result in the evidence of the witnesses being rejected unless they are satisfactorily explained away. Counsel also cited Obwalatum Francis Vs. Uganda, Supreme Court Criminal Appeal No.30 of 2015. - 9.] Counsel cited Ndyaguma David vs. Uganda, CACA No. 236 which was cited with approval in Apea Moses vs. Uganda, CACA No.0653 of 015 all cited in the case of Lugemwa vs. Uganda, CACA No. 216 ol2017. - 10.] Counsel submitted for the appellant that the accused retracted and repudiated his charge and caution statement. The appellant stated that the charge and caution statement was taken under unbearable circumstances. The

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5 trial Judge conducted a trial within a trial to establish whether the appellant voluntarily signed the Charge and Caution Statement. Counsel cited Omiat Joseph vs. Uganda, SCCA No. l0 of 2001, where the Supreme Court held that it was a cardinal principle of our common law, that an accused person who confesses to a crime must do so voluntarily and the confession must be read back to him or her in a language he or she understands.

#### Submissions for the respondent

- Il.] Counsel for the respondent raised a preliminary objection that the first ground offends rule 66(2) Court of Appeal Rules in so far as it fails to speciff the points of law or fact or mixed law and fact that the appellant contends were wrongly decided. Counsel cited Sseremba Denis vs. Uganda, Criminal Appeal No. 480 of 2017, where this court struck out two grounds ofAppeal because they offended Rule 66 (2). He prayed that this court strikes out ground one. - 12.) Counsel for the respondent submitted that the prosecution discharged its burden of destroying the appellant's alibi. Counsel cited Jamada Nzabaikukize vs. Uganda, SCCA No. I of 2015 and Moses Bogere vs. Uganda, SCCA No.l of 1997, where court stated that what amounts to putting an accused person at the scene of the crime, means proof to the required standard that the accused was at the scene ofthe crime at the material time. Counsel submitted that the prosecution proved this beyond reasonable doubt and placed the appellant at the scene ofthe crime. - 13.1 Counsel submitted that the appellant was the biological father of the victim. The victim had lived with him in the same home and house for long. She knew the appellant very well and could not have mistaken him for someone else. She identified the appellant in Court by name and their relationship. The offence was repeatedly committed. The victim was very

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- clear and consistent in her testimony as regards the identity of the appellant as the person who had sexual intercourse with her thrice on different dates. At Police, the appellant accepted having defiled the victim. That the victim's evidence was corroborated by that of PW2, who testified that the appellant confessed to him that he had defiled his daughter twice when his wife was not there. It was further corroborated by PW4 who took the charge and caution statement. - $[14.]$ On the issue of repudiated and retracted confession, counsel cited section $23(1)$ and (2) of the Evidence Act, Cap 6, that provides for repudiated and retracted confessions. Counsel also cited **Tuwamoi vs. Uganda**, [1967] **EA 84** cited with approval in **Tumusiime Obed and Another vs. Uganda, Criminal Appeal No. 149 of 2020,** where this court stated that;

"the present rule then as applied in East Africa in regard to a retracted confession, is that as a matter of practice or prudence the trial Court should direct itself that it is dangerous to act upon a statement which has been retracted in the absence of corroboration in some material particular, but that the court might do so if it is fully satisfied in the circumstances of the case that the confession must be true."

- $[15.]$ Counsel submitted that the trial Judge must always satisfy that any confession before them was made voluntarily by the accused person. Counsel submitted that the learned trial Judge complied with this law when she conducted a trial within trial to establish the voluntariness of the appellant's confession. Furthermore, the trial Judge did not base her judgment only on the charge and caution statement but also on the other pieces of credible evidence. - In response to the issue of contradictions and inconsistencies, counsel $16.$ for the respondent submitted that this specific aspect was not raised as a ground of appeal and therefore offended rule $66(2)$ of the Court of Appeal

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5 Rules. Counsel however stated that if this court goes ahead to consider the submissions of the appellant, then there was no contradiction or inconsistencies since the victim clarified the anomaly when she stated that when she did a second test, she was not pregnant. Counsel prayed that this ground fails.

# 10 Consideration of Court

- 17.l We take note of the fact that the respondent raised a preliminary objection that the first ground offends rule 66(2) of the Rules of this court. We agree with the submissions of the respondent that the first ground deserves to be struck out however in the interest ofjustice we invoke Rule 2(2) of this court to proceed to hear the appeal on its merits. - l8.l We are bound by the legal principles laid down in Rule 30( I )(a) of the Judicature (Court of Appeal Rules) Directives and in the cases of R V Pandya 1957 EA 336 and Kifamunte Henry Vs. Uganda, SCCA No I0 OF 1997 and Okena Vs Republic 1972 EA 32, with regard to the role of this court as the first appellate court. The duty of a first appellate court was laid out in the case of Fr. Narsensio Begumisa and 3 Ors V. Eric Kibebaga, SCCA No. l7 of2002 (unreported): thus:

"The legal obligalion of the l"t appellale courl to reappraise lhe evidence is founded in the common law rather than rules qf procedure. Il is a well settled principle that on a l"t appeal, lhe parties are enlitled to obtainfrom the appeal courl ils own decision on issues of.fitct as well as of law. Although in case of conflicting evidence, the appeal court has lo make due allowance -for the /act that it has neither seen nor heard the witnesses."

19.] Our role as the first appellate court is to re-evaluate the evidence on record. The appellate Court is required to peruse the lower court's record

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looking for the alleged legal errors and omission that are stated to have caused a miscarriage ofjustice to the appellant.

20.1 As we re-evaluate the evidence on record, our duty is to establish whether the alibi can stand. In so doing we have to establish whether the prosecution was able to displace the defence of alibi by showing that the appellant was at the scene of the crime and that he is the one that committed the alleged offence. There is no burden of proof on the accused to prove an alibi. Ifthere is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt. In the case of Kiarie v- Republic, ll984l KL The Kenyan Court ofAppeal stated that:

"An alibi raises a specific defence and an accused person who puls forward an alibi as an ans\rer to a charge does not in law thereby assume ony burden of proving that answer and it is sfficient if an alibi introduces inb rhe mind of a court a doubt thot is not unreasonable...... "

21.1 In dismissing the appellant's alibi, the prosecution relied on the victim's testimony. The law on a single identiling witness is well stated in Abudalla Nabulere and 2 others vs. Uganda, Court ofAppeal No 09 of 1978, citing the position of the law in Abdalla Bin Wendo and Another V. R, (1953), 20 EACA 166, cited with approval in Roria v. R, (1967) EA 583. The guiding principles are that;

(a) The leslimony ofa single witness regarding identification musl be tested with lhe greatest cure.

(b) The needfor caution is even greater when it is known thot the conditions fworing a correct identificotion were dfficult.

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5 (c) Were the conditions were dfficult, u'hat is needed before convicting is 'other evidence' poinling to guilt.

> kl) Otherwise, subjecl to certain well known exceptions, il is luwful to convicl on the identifcation ofa single ttitness so long as the judge adverts to lhe donger of basing a conviction on such evidence alone.

22.1 The prosecution further relied on the direct evidence of the victim herself. She testified in the trial Court that she was defiled by her father 3 times and she described all the three times. 10

- 23.1 PW3 stated that the first time her mother had gone to the neighbour and the siblings were watching TV at the neighbours. She was alone at home when her father came and gave her money and defiled her. He cautioned her not tell anyone otherwise he would kill her. The victim further testified that the second time was at night when everyone was sleeping. She said her mother was no longer sleeping with her father. She was sleeping on the floor. The father picked her from the children's bedroom and defiled her from the sitting room. The third time happened when the mother had gone to hospital and asked her to prepare food for her sibling. That her father found her peeling and took her in the house and defiled her. - 24.) PW3 testified that all these times she was scared of telling the mother. But this last time she got tired and told her. She said her mother attacked her father from the garden and because she made a lot of noise, people came among whom was the chairperson who called the police and they arrested the appellant. - 25.) Considering the facts, the victim passed the test of a single identiSing witness; the appellant was the accused's father, she had been abused three times, and on the 14110/16 it was during day just before lunch time. The

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factors for favorable identification had been proved. We are therefore satisfied that there was no mistaken identity.

26.] This brings us to the issue of the inconsistences in the medical report. We want to agree with the submissions of the respondent that there were no inconsistencies because these were clarified by the evidence of the victim PW3. In her testimony she explained why they had two reports. The victim told court that when they received the report and it indicated that she was pregnant, she did not believe it. The mother was advised to go to another clinic to confirm and she was found negative. We find this convincing and not contradictory like the appellant wants court to believe.

27.) The fact of the victim being pregnant or not cannot in itself be used to prove or disprove the participation of the appellant in the commission of the offence. This is because it is not one of the requirements for establishing whether or not there was def-rlement. The test is penetration and not pregnancy. So the inconsistencies of whether the victim was pregnant or not do not go to the root of this matter. This was clearly explained by the Kenya Court of Appeal in Williamson Sowa Mbwanga v Republic, [20161 Eklr. The Court stated : 15 20

> "...it is palently clear b us that whilst paternity of PM's child may prove that the.futher of the child had defled PM, that is no! the only evidence by which deflement of PM can be proved. The fact, as happens in many cases, lhat a pregnancy does not result from conducl thal would olhervise constitute a sexual offence does nol mean lhat the sexual offence has not been committed. In this case, there does not have lo be a pregnancy to prove defilement. A DNA test ofthe appellant would at most determine whether he was the father oJ PM's chiltl, which is a diferent question .from whether the appellant hud defiled PM. As the Court of

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5 Appeal of Uganda rightly stated, in lhe sexual offence of defilement, the slightest penelralion of the female sex orgon by the mole sex organ is sfficienl to conslitute the ofence and that it is not necessary that the hymen be ruptured. (See TWEHANGANE ALFRED V. UGANDA. CR. APP. NO. t39 OF 2001)."

- 10 The allegation of there being a pregnancy or not, therefore, does not have ment - 28.] Lastly on the issue of repudiated and retracted confessions, we agree with counsel for the respondent on the guiding law laid down in Tuwamoi vs. Uganda,1967 EA 84 as follows;

"The present rule then as applied in East Africa in regard lo a relracled confession, is that as a maller of practice or prudence lhe lrial courl should direcl itself that it is dangerous to oct upon a statemenl which has been retrocled in lhe absence ofcorroboralion in some material particular, but that the court mighl do so if il is fully sotisrted in lhe circumstances oflhe case that the confession mu.sl be true. "

29.1 Whenever an accused person disowns their charge and caution statement, it is a requirement under the law that the trial court satisfies itself that the confession was made voluntarily by conducting a trial within a trial. In this instant case, the trial court conducted a trial within a trial and established that the confession was made voluntarily. The trial court made the following findings;

"The Accused was cautioned as required by law and he went ahead to give the slatement.

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5 It is clear that all the requirements laid down under s.23 of the Evidence Acl were followed

> The statement gives clear details of what lranspired on the dale in queslion, lhe victim was away from home and the sexual acl wos performed and what happened aJter the act.

> For all intents and purposes, il is apparenl lhal the slatement was voluntarily made and il is ctccordingly admissible in evidence"

- 30.1 We have re-evaluated the evidence on record and we are convinced that the appellant voluntarily made the statement and as such the trial court properly admitted it in evidence. The procedure required under section 23 of the Evidence Act Cap 6 was followed. When the appellant retracted his statement, the trial Judge conducted a trial within a trial to establish the voluntariness. We find that the trial court fulfilled all the requirements of the law in this regard. - 31.] Grounds I and 2 have no merit.

Ground 3

That the learned trial judge erred in law and fact in sentencing the appellant to 25 years' imprisonment which sentence was deemed illegal, manifestly harsh and excessive in the circumstances.

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## Submissions for the appellant

32.) Counsel for the appellant submitted that the trial Judge failed in her duty when she did not to take into consideration the mitigating factors before sentencing the appellant. That the appellant was a family man with four children, he was also a young man of 36 years with opportunity to reform. Furthermore, the appellant failed to take into consideration the 2 years and II months spent on remand by the appeltant. To buttress his argument counsel cited Moses Rwabugande VS. Uganda, SCCA No.25 of 2014, cited 1 ^ lrlPag W- 30

- 5 in Kakurucu Emmanuel vs. Uganda, CACA No.576 of 2014, where it was held that the sentence is illegal once the trial court fails to take into consideration the period the accused spent on remand. - 33.1 Counsel for the appellant further submitted that his was in violation of article 23(8) of the Constitution which is to the effect that court should consider the time spent on remand when sentencing. - 34.1 Counsel cited Kiwalabye Bernard vs. Uganda, SCCA No 143 of 2001, to the effect that an appellate court cannot interfere with the sentence ofthe trial court unless the trial court proceeded on wrong principles. - 35.] Counsel cited paragraph 6( 1 ) of the Constitution (Sentencing guidelines for Courts ofJudicature) (Practice)(Directions)201 3 that sets out what should be considered when sentencing. - 36.) Counsel considered the principle of consistency and cited Kizito Senkula vs. Uganda, SCCA NO 24 of 2004, where the Supreme court reduced a sentence of l5 years to l3 years. In Bikanga Daniel vs. Uganda, - CACA, No.38 of2000, the sentence was reduced from 2lyears to l2years' imprisonment. The Supreme Court in Katende Ahamed vs. Uganda, CA No. 06 of2004. The Court confirmed a l0-year sentence. 20 - 37.) Counsel prayed that this court invokes its powers in section I I of the Judicature Act to give the appropriate sentence.

## 2s Submissions for the res ndent

38.] Counsel for the respondent submitted that it is settled law that sentencing is a discretion of a trial Judge and an appellate court will only interfere with a sentence imposed by the trial court if it is evident that it acted on a wrong principle or overlooked some material fact or if the sentence is manifestly harsh and excessive in view of the circumstances of the case.

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- 5 (Kiwalabye Bernard vs. Uganda, Supra and Kyalimpa Edward vs. Uganda, SCCA, No.l0 of 1995). - 39.) Counsel conceded that the leamed trial Judge did not comply with Article 23(8) of the Constitution and the decision in Rwabugande as far deducting the year spent on remand is concemed. - 40.] Considering the aggravating factors, that the appellant was the biological father of the victim, abused her repeatedly and needed to protect the victim, 25 years was not illegal, harsh and excessive. It was within the sentencing guidelines. Counsel submitted that aggravated defilement attracts a maximum sentence of death. - 41.) Counsel prayed that this court exercises its power under section I I of the Judicature Act and deduct the years spent on remand. 15 - 42.] Counsel also submitted on the principle of consistency and cited Biryomumisho Alex vs. Uganda, Criminal Appeal No.464 of 2016, restated with approval in Katureebe Boaz and another vs. Uganda, SCCA No. 066 of 201I, where it was held that; "consistency in sentencing is neither a mitigating nor an aggravating factor, the sentence imposed lies in the discretion of the court which in exercise thereof may consider sentences - 43.] In Ntare Augustine vs Uganda, Criminal Appeal No. 053 of 2011, this court found a 25-year sentence as appropriate for aggravated defilement. In Seruyange Yuda Tadeo v. Uganda, Criminal Appeal No.080 of20l0, the sentence was reduced from 33 years' imprisonment to 27 years' imprisonment. ln Kizza Geofrey vs. Uganda, Criminal Appeal No.076 of 2010, the court reduced sentence from 30 years to 28 years of imprisonment. She prayed this court to find that the sentence was neither harsh nor excesslve. 30

imposed in other cases of similar nature. "

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## s Consideration of Court

- 44.) We agree with the submissions of both counsel with regard to sentencing and deduction of time spent on remand by the appellant. It is a legal requirement under article 23(8) ofthe Constitution that the trial Judge must take into consideration the time spent on remand before conviction as was held in Rwabugande Moses vs. Uganda, Supra and Segawa Joseph vs. Uganda, SCCA No. 65 of2016). - 45.) This court however invokes its power under section I 1 of the Judicature Act to give an appropriate sentence. The mitigating factors are that the appellant was a first time offender, a father of four. He had spent 2 years and I 1 months on remand. The aggravating factors are that this was his biological daughter, he repeatedly defiled her when it was him to protect her and the offence is rampant. - 46.) We find that the sentence of 25 years is appropriate and we deduct 2 years and I 1 months. The appellant will therefore serve a sentence of 22 years and I month effective from the date of conviction which is lOth September, 2019.

Consequently, the appeal partially succeeds.

We so Order

Dated at Kampala this dryor....41€ u. 2023

RICHARD BUTEERA DEPUTY CHIEF JUSTICE

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CHRISTOPHER GASHIRABAKE

JUSTICE OF APPEAL

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