Namusoke v Uganda (Criminal Appeal 39 of 2018) [2023] UGCA 219 (16 August 2023)

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

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

(Coram: R. Buteera, DCJ, C. Gashirabakc, jA, @ Kihika, JA.)

### CRIMINAL APPEAL NO. O39 OF 2OI8

(Arising from Criminal Session No. IICT-}1-CR-CS 0 l 1 76/20 1 6)

#### BETWEEN

## NAMUSOKE ZAINA....... .............. APPELLANT

#### AND

## UGANDA.... RESPONDENT

(Appeal from the Judgment of the lligh Courl of Uganda llolden at Kampala, by Moses Kazibwe Kawumi, J. delivered on l"t l.-ebruary, 2018) 15

#### . IUDGMENT OF COUR. T

#### Introduction

- 1.1 The appellant was indicted for Aggravated Defilement c/s 129(3)(4)(a) and (c) ofthe Penal Code Act Cap 120. - 2.)On 22"d July, 2016 at Kiwalimu zone, Kasangati, thc appellant whilc HIV positive performed a sexual act with 1-. J. K who was aged llyears. The victim and accused person were neighbours in Kiwalimu villagc. Thc appcllant returned home to her room while the victim's parents werc away. She banged the wall between their houses, thc victim and his sibling feared, got out oftheir house, sat on their veranda and the appellant invited them into her house which was lit with a solar lamp. She laid a mat on the floor of her bedroom for the victim's sister to sleep and told thc victim to sleep on her bed behind the curtain. The appellant slcpt on top of the victim, extinguished thc solar lamp, held the victim's mouth, told him to kcep quict, pulled out thc

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<sup>5</sup> victim's penis and inserted it in and out of her vagina for about 8 to l0 minutes. 'l'he appellant warned the victim against disclosing the ordeal. The victim inlormcd his sister who told their other neighbour. 'lhe neighbour took the victim and sister to Kasangati Police, later informed the victim's parents and the appellant was arrested. The victim was examined on Police Form 3A which showed he was l2 years old. The appellant was examined on Police Form 24A which showed she was 23years old and HIV positive. She was indicted in the IJigh Court for the offence of Aggravated defilement, tried, convicted and sentenced to I 2 years and six months' imprisonment.

3.1 Thc appcllant being aggricved with the decision of the Fligh Court lodged an appeal in this court. 'l'he appeal is premised on four grounds set out in the Memorandum of Appeal as follows;

- l. 'l'hal lhe learned triol .ludga erred in lav, when he shiJied the burden o/ proo;f to the accused/ appellant. - 2. l'hat the laarned trial ,Judge erred in lctw and Jttct when he convicled the appellant on lhe hasis of uncorroborated <sup>c</sup>i r c u m s I u n I i ct I e t' i tle nc e. - 3. 'l'hat the leurnetl trial ,ludge erred in law and \_facl when he failed lo properly evaluate the evidence on record as a whole lhus utming to u wrong conclu.rion occusktning misturriuge ofiustice.

## 2s ReDrcsentation

4.] At the hearing of the appeal, the appellant was represented by Ms. Shamim Rukiyah Nalule, while thc respondent was represented by Ms. Caroline Marion Acio, Chief State Attorney assisted by Ms. Kaya Jescinta.


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## s G.rounds 2 and <sup>3</sup>

That thc learncd trial Judgc errcd in law and fact whcn he convictcd thc appcllant on the basis of uncorroborated circumstantial evidencc.

That the learncd trial Judgc erred in law and fact whcn hc failcd to propcrly cvaluatc the evidcnce on rccord as a wholc thus coming to a wrong conclusion occasioning misca rriage of justice.

#### Submissions for the appcllant

- 5.1 In the submissions lllcd on thc 22 March, 2023 thc appcllant abandoncd thc first ground and submittcd on thc sccond and third grounds. - 6.1 It was the submission of thc appcllant's counscl that in ordcr lor thc prosecution to securc a conviction in dcfilcmcnt cascs it rnust provc all ingrcdicnts of the ollcncc.'l'hc main contcntion was that thc trial Judge lound that a scxual act was pcrlbrmcd on thc complainant by relying on his uncorroboratcd cvidcncc. - 7.] Counscl submittcd that corroboration is indcpcndent cvidcnce which supports the testimony of the complainant. Counscl subrnittcd that it has to bc confirmation lrom other sourcc that thc witness is telling thc truth in somc pafl ol the story which gocs to show that thc accuscd has committcd an ofl-cncc. 'l'his principlc was wcll laid down in Uganda vs. Ocorgc Wilson Simbwa, SCCA No. 37 of 1995. Counscl lurthcr statcd that thc evidcnce ought to havc bcen corroboratcd by mcdical cvidcncc. Counscl citcd Hussein Bassita vs. Uganda SCCA, No. 35 of 1995 whcrc thc Suprcmc Court held that;

"lhe acl o.f :;exual intcrcourse ()r pcnclration may be provad hy'direct or circumslanlial cvidence. Usuully the saxuul inlercoursc i.s proved by

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### the victim's own evidence and corroborated by the medical evidence or other evidence."

Counsel also cited Lawrence Kizza vs. Uganda, Criminal Appeal 192 of **2002**[2007], where court held that;

"it is our considered opinion that the whole purpose of subjecting the victim to medical examination was to enable the prosecution confirm that penetrative sex had taken place between the victim and a male *human being. it was not an academic exercise."*

- 8. Counsel submitted that the prosecution ignored Police Form 3A which indicated that the complainant did not have any injuries to support the fact that a sexual act occurred. That the prosecution invited court to find that there was a sexual act when there was no evidence with regard to injuries contending that it is rare for a male victim to have physical injuries as result of a sexual act. - 9. Counsel for the appellant argued that the State Attorney is not a witness in this case and neither is she an expert in the anatomical differences in the sexual organs of boys and girls. That the complainant was examined by the doctor on this PF3A, and was found to be in a general good condition, mentally stable and well oriented in time and place. Counsel submitted that PF3A should not be ignored by the trial Judge for it brings out major inconsistencies as to whether the sexual act happened and should have been used in the favor of the appellant. Since PF3A could not collaborate the complainant's testimony, the prosecution was left with the evidence of PW3 and PW4 to corroborate PW2 as to whether the sexual act happened. It was the testimony of PW3 that she was sleeping therefore did not know what happened. PW4 told court that the appellant admitted the offence but did not tender in evidence of a charge and caution statement. In counsel's view the evidence of these two witnesses as per the test in **Uganda vs. George Wilson**

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Simbwa, SCCA No. 37 of 1995, could not corroboratc thc complainant's tcstimony.

#### Submissions for thc resJrondcnt

- 10.] Counsel for thc respondcnt submittcd that the appellant was indicted and convictcd of the offcncc ol aggravatcd dcfilcmcnt contrary to scction 129(3) and (4)(a) of the Pcnal Codc Act Cap 120. Counscl submittcd that the prosccution must prove that; - 1. 'l'he victim was bclow l4 ycars at thc timc thc ollcncc was committed. - 2. 'l'hat a scxual act was pcrforrncd on the victim - 3. 'l'hc accuscd pcrson performed the scxual act or participated in it.

#### (Counscl cited llassita Hussein vs. Uganda SCCA No.35 of 1995).

- ll.l 'l'hc rcspondcnt's submissions will bc rcstrictcd to grounds 2 and 3. Counscl submitted that the evidencc of scxual act, was bascd on direct evidencc of thc victim. Counscl submitted that thc Judgc properly evaluated thc cvidcncc rcgarding pcrlormancc ol scxual act and arrivcd at the right dccision. - 12.) On thc participation of thc appcllant, counscl submittcd that this too was dircct evidcncc. Counscl citcd thc evidcncc of PWI and PW2. Counsel for the rcspondcnt citcd Abdallah Nabulcre vs. Uganda Criminal Appcal No.9 of 1978, which considered that propcr idcntification can bc gathcrcd from thc lcngth of time thc accuscd was undcr obscrvation, the distancc, the light, thc familiarity olthc witncss with the accuscd. In counscl's vicw PW2 was a ncighbor of thc appcllant, they communicated bclorc thc incident and during thc incidcnt which lastcd bctwccn tl to l0 minutcs, thcre was solar lamp which thc appcllant cxlinguishcd aflcr cntcring bcd with I'W2 and it was only them in thc samc bed. I']W3 was on thc mat.

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- $13.1$ That considering the above, there was proper identification and the Judge properly evaluated the evidence on record and reached the right decision. - $[14.]$ On corroboration, counsel for the respondent submitted that the evidence of PW2 did not require corroboration since there is no legal requirement for corroboration. Counsel cited section 133 of the Evidence Act which states that subject to the provisions of any other law in force, no particular number of witnesses shall in any case be required for proof of any fact. Counsel relied on Ntambala Fred vs. Uganda, SCCA No. 34 /2015, where the Supreme Court held that;

"*Consequently, a conviction can be solely based on the testimony of*" the victim as a single witness, provided the court finds her to be truthful and reliable. As stated by this court in Sewanyana Livingstone vs. Uganda SCCA No. 19 of 2006) "what matters is the quality and not quantity of evidence."

- $15.1$ Secondly, counsel for the respondent submitted that the evidence of PW3 provided an independent corroboration of the evidence of PW2 in as far as it placed the appellant at the scene of the crime on the fateful date and time. - $16.1$ In conclusion counsel submitted that the judge properly evaluated the evidence and rightly found PW2's evidence sufficient to prove the sexual act performed against him

#### **Consideration of Court**

$[17.]$ We have carefully studied the court record and also considered the submissions of counsel for both sides and the law and authorities cited. This is a first appeal.


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The duty of a first appellate court was laid out in Rule $30(1)(a)$ of the $\cdot$ 18.] $\mathsf{S}$ Judicature (Court of Appeal Rules) Directions and in the case of Fr. Narsensio Begumisa and 3 Ors V. Eric Kibebaga, SCCA No. 17 of 2002 thus:

> "The legal obligation of the $1^{st}$ appellate court to reappraise the evidence is founded in the common law rather than rules of procedure. It is a well settled principle that on a $1$ <sup>st</sup> appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses."

It is trite that all criminal offences require proof beyond reasonable $19.$ 15 doubt. Lord Denning in Miller vs. Ministry of Pensions, (1947) 2 All ER, **372** stated as follows:

> "That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but *nothing short of that will suffice."*

Similarly, in *Bakare vs. State*, (1987) 1 NWLR (PT 52) 579, the Supreme Court of Nigeria emphasized on the phrase proof beyond reasonable doubt, stating:

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"Proof beyond reasonable doubt stems out of the compelling *presumption of innocence inherent in our adversary system of criminal* justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency *consistent with an equally high degree of probability.*"

The above principles will guide this court in the determination of the $20.1$ grounds of appeal.

$21.1$ The appellant argued that PF3A showed that the victim was normal with no injuries. Therefore, there was no penetration. Proof of any offence or penetration can be either by direct evidence or by any way the prosecution can use to prove their case beyond reasonable doubt. What the court seeks out in every case is cogent evidence. We are guided by the Supreme Court position in Bassita Hussein vs. Uganda SCCA No. 35 of 1995, where court held that:

> " the act of sexual intercourse of penetration maybe proved by direct or circumstantial evidence, usually the sexual intercourse is proved by the victim's own evidence and corroborated by the medical or other evidence ..." through desirable it's not a hard and first rule that the victims evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse of penetration whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that its sufficient to prove the case beyond reasonable doubt"

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- <sup>5</sup> 22.1 In this case PW2 testified clearly what happcncd when the appellant bangcd her wall and thcy werc scarcd. Shc lound them at the veranda and asked thcm to comc in to thc housc. Shc then told I'W3, tlabiryc, to slecp on the mat. Hc then said that the appellant slept with him on thc bed behind the curtain. PW2 stated that 3 minutcs latcr, thc appellant startcd touching him and slcpt on him and told him to kccp quict whilc holding his mouth. PW2 also told court that the appcllant thcn switchcd ol'f thc tight. I Ic bccamc so scarcd and kcpt quict because thc appcllant had promiscd to kill him ifhc told anyonc. 'Ihcn she rcachcd fior his pcnis. Smoothcd it pushing it and scratching from the vagina. I Ic statcd that this took about 8 to l0 minutcs. 10 - 23.) 'l'his was corroboratcd by thc tcstimony of PW3 who stated that whcn they rcached the house thc appcllant told PW2 to slcep on the bcd then hcr on thc mat. PW3 statcd that she hcard thcm spcak but shc did not hear thcir convcrsation. So thc lollowing morning whcn shc inquired lrom him, he told hcr what happcncd. Shc was scared shc told llrcnda who rcportcd to thc policc. 15 - 24.1 Prosccution cvidcncc was vcry consistent contrary to the cvidencc of the appcllant. Iror insistencc, whcn it camc to how shc lbund the two children, she contradicts hcrsclf. Shc said shc found thcm out when shc had come back home. I Ier horne was lockcd. Yet on thc othcr hand shc brought in a Nakamya in thc wholc picture. 'l'his was an afterthought by thc appcllant to dcfeat the ends oljusticc. 'l'he trial Judge held that;

"Section 129(7) o/ the Penal (lode /cl de.fines o sexual acl as lhe slightest penclrotion of onc sexuul orgun into unother. 'l'he accuscd held thc nusuth ol the utnrplainant, extinguishad the lamp, smoochcd his pcnis und used itjbr hcr sexuol grolificution

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by pushing it in and out of her genitals which amounts to the performance of a sexual act.

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The accused admitted to being with the complainant and PW3 in her house on the 22 July 2016. Her alibi as to the sleeping arrangement was however discredited by the contradictions in her own evidence. The presence of a visitor in the house could not be explained away since the accused told Court that she opened for the complainant and PW3 when she came back at about 8,30 pm. The sleeping arrangement coherently described by PW2 and *PW3 clearly points to the intention to commit the sexual act since* the accused should have logically slept with PW3 and not the male complainant and PW3 more acceptable.

The complainant was the single identifying witness produced by the Prosecution. I have duly warned myself that there was no mistaken identity as to the accused being the perpetrator of the crime. The conditions surrounding the commission of the offense *were conducive for the proper identification of the accused.*"

$25.1$ Considering the Judge's finding above and the record of appeal in relation to the law, we find that the trial Judge properly evaluated the evidence on record and there was no miscarriage of justice. We disagree with the assertion of the appellant. We agree with the finding of the trial court that the proof of penetration was direct evidence.

- Grounds 2 and 3 fail 26.1 - $27.$ Consequently, the appeal fails.

## We so Order 30

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$\mu$ Dated at Kampala this ....................................


$R$

RICHARD BUTEERA **DEPUTY CHIEF JUSTICE**

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**CHRISTOPHER GASHIRABAKE**

**JUSTICE OF APPEAL**

OSCAR KIHIKA **JUSTICE OF APPEAL**

$10$

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$20$