Nsubuga v Uganda (Criminal Appeal 16 of 1988) [1990] UGSC 20 (26 October 1990)

# IN THE SUPREME COURT OF UGANDA

## AT MENGO

#### (CORAM: MANYINDO, D. C. J., ODER, J'. S. C., & PLATT, J. S. C.)

# CRIMINAL APPEAL NO.. 16/88

## BETWEEN

EMMANUEL NSUBUGA APPELLANT

#### AND

UGANDA RESPONDENT

(Appeal from the Judgment of the High Court at Kampala (Kikonyogo J.) dated 28th November<sup>1</sup> 1988)

## IN

#### CRIMINAL SEESION CASE NO. 33 OF 1988

# JUDGMENT OF THE COURT

The appellant Emmanuel Nsubuga, was convicted by the High Court on three counts of robbery, contrary to section 272 and 273(2) of the Penal Code on 28/11/88 and sentenced to death# He has appealed against the conviction and sentence.

On 13-5\*1988 at about 9\*^5 a.m., in Kasaala Forest in Mukono District, passengers whom he was driving in his pick-up No. UXS 871 to Katosi Port on Lake Victoria to collect fish. The attackers robbed them of the pick-up and various sums of money, leaving them at the scene\* On the same day at about 11.30 a.m. the pick-up was involved in an accident when it collided with a cyclist near Mukono Police Station in Mukono town. The Motor vehicle was then being driven by another person from the direction of Jinja towards Kampala\* Immediately after the collision, five men some of them armed, alighted from the pick-up, fled and disappeared. The Police and some members of the public mounted a search for the men from the pick-up. The search party found and apprehended the appellant in the a gang of armed men attacked Joseph Nsubuga Sebugenyi (PWl) and five

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bush at ..a spot about 200 metres from the scene of the accident. Later at Mukono Police Station where he was shown to them, and they apparently confirmed him to the police, as one of the armed men who had robbed them earlier. <sup>k</sup> the same day, PW1 and some of his former passengers saw the appellant

<sup>t</sup> The appellant was subsequently charged with robbery of the pick-up • arid some money from PW1 in the first count and with robbery of various sums of money from Godfrey Kyazze, John Musisi (PV/j) and Silivester Katuleme (PW4) in the second, third and fourth counts of the Indictment respectively.

At the appellant's trial, PW1 and those of his passengers who testified for the prosecution claimed that they identified the appellant as having been one of the robbers\* A police officer of Mukono Police Station, Turyagenda, Cadet/ASP (PV/5) also claimed to have identified the appellant as one of the men who had fled from the pick-up after the collision near the Police Station. In his defence, the appellant put up from a native medicine man in Mukono area, and that when he was apprehended he was asleep in the bush as a result of the treatment. an alibi to the effect that from 12.5\*1988 he had been receiving treatment

The learned trial Judge accepted the evidence of identification from the victims of the robbery and PV/5 on which, together with what she found to be circumstantial evidence, she convicted the appellant on three counts. She rejected the appellant's alibi as false. The learned trial Judge acquitted him on one count in respect of which the complainant did not testify for the prosecution.

There is only one ground of appeal, which is that the learned trial Judge misdirected herself in evaluation of the prosecution evidence. In arguing this ground, Mr. Kasirye, learned counsel for the appellant, said firstly, that the prosecution evidence relating to identification was so

contradictory and inconsistent with previous statements of the witnesser that in the absence of an identification parade, which was not held, whe learned trial Judge ought not to have relied on it as connecting the appellant with the robbery incident and the road accident at Mukono Police Station.

There was no doubt that a robbery had been committed against PW1 and the four passengers on his pick-up. The only issue was whether the appellant was one of the robbers. Correct identification was, therefore. vital in the prosecution case. With regard to the principles to be applied in considering evidence of identification the learned trial judge, in cur opinion, properly directed herself. She referred to some of the decisions of this Count, such as <u>Roria v. R.</u> (1967) E. A. 583; Tomasi Omukono vs. Uganda Cr. Appeal No. 4/1977 (UCA) and G. W. Kalyesub J. v. Uranda Criminal Appeal No. 16 of 1977 (UC.). The gist of these decisions is that before a conviction can be based on the evidence of a sole or more identifying witnesses such evidence must be tested as truthful and any possibility of error excluded. There conditions for correct identification are favourable such a task will be easier. Lut where conditions are difficult it would be unsafe to convict in the absence of some other evidence connecting the accused with the offence,

We also think that the learned trial judge properly directed heral? on the law regarding the approach to discrepancies and contradictions in evidence of witnesses, as loid down in Alfred Tajar v. Uganda (""") Criminal Appeal No. 167 of 1969 (EACA). It is her findings of facts on these issues, however, which are the basis of this appeal.

After stating the principles applicable to evidence of identification, the learned trial judge considered the evidence of the prosecution eye witnesses, namely PW1, PW2 (David Lukwago, the turn boy on the pick-vp). PW3 and PW4. She also considered the discrupancies and contradictions in their evidence and said:

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''Admittedly, their evidence relating to the description of the accused and his time of arrest as submitted by the learned defence counsel and noted by the gentlemen assessors had some discrepancies and a bit consistent **with** the statements made to the police (sic).

The approach to discrepancies and inconsistencies in evidence of prosecution witnesses is enunciated in the case of Alfred Tajar y. Uganda Appeal Caso

No. 167 of 1969 cited by both learned Counsels and followed in a number of cases including Bikanikire and another 1972 HCB 44 is that if found grave, the evidence of the witnesses would normally be rejected unless satisfactorily explained away. As for minor or trivial discrepancies and inconsistencies unless the court finds them intended to tell a deliberate lie they would be ignored. Similarly according to the decision in the case of Uganda v Jerm Sessino and 2 others 1971 HCB 274 discrepancies and inconsistencies especially in capital cases like the instant one should not be taken lightly. However, it was further observed that the weight to be placed on them must necessarily depend on how serious they are in relation to what is being investigated.

Applying the above stated test and differing from the opinion of the gentlemen assessors I am of the considered view that the discrepancies and inconsistencies in the evidence of PW1, PV/2, PWJ and PW4 are not so serious as to affect the entire evidence given by them. To my observation they mostly relate to the description of the accused, his clothes and the time of his arrest, which in the light of other circumstantial evidence on record regard are minor. I also found a lot of truth in some of these prosecution witnesses evidence relating to the robberies.

I believe them that one of the assailants was wearing a green military cap and a dirty cream T-shirt although it is not certain whether they identified the assailant as the accused at that time. I accept that their evidence that two of the assailants with big guns sat on the pick-up at the back and that it was driven in the direction of **Mukono.** The inconsistencies with their police statements and discrepancies in their evidence could have been due to the failure of human memory and lack of observation especially as the witnesses were testified at the material time. With some other reliable "evidence, this issue of correct identification can very easily be cleared. On perusal of the evidence on record, there is abundant direct and circumstantial evidence pointing to the guilt of the accused which this court may reasonably \ conclude that although there were some **uncertainty \about** the visual identification of the prosecution .witnesses at the scene of the cri^ could possible ibe accepted as free from possible error".

In the circumstances of this case, we are unable to agree with the learned trial Judge's finding that the discrepancies and contradictions in the evidence of PW1, PW2? PW3 and PV/4 wore minor because they related only to description of the appellant, his clothes and

<sup>A</sup> time of arrest, and that the alleged visual identification of the appellant by the eye witnesses was free from error\* In our view, it is precisely because they related to those matters which were relevant to the issue of identification that the discrepancies and the contradictions in the eye-witnesses<sup>1</sup> accounts of what they saw cannot be regarded as minor\* The robbery victims were attacked by several assailants in broad day light, many of whom performed different roles, during the incident. The possibility of mistaking any one of them for another could, therefore be excluded only be clear evidence of identification, more especially as the assailants were complete strangers to the witnesses. We find that on our evaluation of the evidence, this was not so.

Firstly, it appears that the victims did not give their description of the appellant's arrest. If they were able to identify the appellant because they had observed him at the scene as they claimed was the case they ought to have told the police. So an identification parade ought confirmation or negation of that claim. As it is, none was held and one cannot help thinking that the witnesses' claim in court that they had identified the appellant was due to their having seen him at the police station when already under arrest. AH the four eye witnesses described in detail how the appellant was shown to them as a suspect in the robbery of which they were victims. to have been held to facilitate a

Secondly the eye witnesses' accounts in court of the robbery did not agree with each other; nor with their previous statements to the police on matters such as hoods, caps or hats being on the heads of the It is noteworthy that the statements to the police were made the same day the robberetook place, when the events assailants; how the appellant was dressed; how they were armed; and what part the appellant prayed.

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were still fresh in their memory. In any case, these statements were made after the witnesses had seen the appellant at the police station.

PW1 testified that the appellant had a military cap on his head. His evidence was silent on whether any or all of the other assailants also had anything on his or their heads. PV/2 on the other hand said that all the attackers had hoods on. But in cross examination, he said that they all had winter caps on their heads and that only the appellant had removed his. In his statement to the police, this witness had said that only one gunman was masked. PWJ testified that the appellant had neither said that he did not see the appellant with military cap. statement to the police the contents of which were apparently startling compared with what he subsequently said in Court. This is his testimony in cross examination about that statement: a hat nor a cap. a winter woollen cap or a This witness had made a But, in cross examination, he

> "In my statement, I stated that one man had a pistol, he ordered us to hand in all the money we had. I said that "I was taken up emotionally I was not able to recognise this gun man .... I did not see the alleged assailant". Here in court on oath yesterday I told the court that I noticed the assailants at the scene. I noticed the accused person. I went to the cell and saw the accused person. I told the court what I saw. I have not seen the lies. I agree that the two stories are different, but it is true that we were robbed. Some men had masks on. When I went to the police I told him that I had not noticed all the gunmen that is what I meant. I said all the gunmen had masks\* These were three. In my statement I said that one had a mask on. his face ... .... "

On this point PW4fs testimony was equally inconsistent. He referred to masks, caps and hats only in cross examination. Ho said that he cap or hat, which none of the other assailants also had. He was not able to see whether any of the others had masks. In the next breath, he said that the assailants had masks but not woollen ones. In his statement to the police, PWJ had said did not see the appellant with a

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that gunmen had masks except one who had the headdress and on the face had something like a mask. In re-examination, he said,

> ''There are discrepancies in my statement to the police and my evidence in court as regards the identity of the gunmen. I told the police that "1 did not notice those gunmen except one who had a headdress and on the face he had something like a mask."

As to the appellant's dress, PVJ1 said in his testimony that the appellant was in a dirty shirt the colour of which and of his trousers he could not remember. PW2 on the other hand said in cross examination that the sweater, and so he (PW2) could not see his (the appellant's) shirt. Yet, PWJ claimed to have noticed the appellant's shirt as <sup>a</sup> cream T-shirt and his trousers PV/4's evidence dirty cream shirt and blue jeans trousers. appellant was in a as blue jeans. was that the appellant was in a

The description given by the eye witnesses PW1, PW2 and PWJ and PV/4, in their evidence as to the appellant's mode of dress and whether he had a cap or hat on his head and was, thus contradictory, inconsistent and confusing that it is impossible to tell that they were talking about the same person. We think that their claim to have identified the appellant by what he was wearing must be considered in the light of a bundle of articles which No. J284 Sgt. Mario Ituka Drale (PV/6) said was found near the appellant in the bush where he was arrested. This was one of the police officers who participated in the search for the persons who had allegedly fled from PV/11s pick-up after the collision near Mukono Police station. He testified that the articles, a cream shirt, with the appellant to Mukono Police Station. Though when these eye he was only in pants it is not certain that they uid not see the articles at the same time or were informed about them by the police. There is a cream pair of trousers and a military cap, wore taken together a mask on his face witnesses (PW1, PW2, PWJ and PW4) saw the appellant at the police station

- 7 - no indication on record that they described or identified these articles to the police before the appellant's arrest, nor in court at the trial. which, in our opinion, should have been done.

In the circumstances our view is that the evidence of the identifying witnesses was so unreliable that it was incapable of being corroborated by any other evidence. The learned trial Judge camo to the conclusion that there *were* uncertainties about the visual identification by the prosecution witnesses at the scene of crime, but acted on the evidence because she found it to have been bolstered by circumstantial evidence. With respect, we think that she ought to have rejected the prosecution evidence of identification altogether.

The appellant's second complaint is that there was no link in the evidence of the eye witnesses and the circumstantial evidence. In this regard, Mr. Kasirye submitted that there the incident at the scene of robbery, the accident involving the pick up at Mukono Police Station, and the articles of clothing and the gun, which were found in the bush when the appellant was arrested and that witnesses said he had taken from them. In her opinion, the learned trial Judge misdirected herself in evaluation of these points and wrongly departed from the opinions of the assessors regarding them. was no reliable link between the appellant was not found with any money which tho prosecution

circumstantial evidence. This, briefly, is that circumstantial evidence of that kind may be fabricated to cast suspicion on another. It is therefore necessary before drawing an inference of guilt from circumstantial evidence to be sure that there are no other co-existing circumstances I which would weaken or destroy the inference. See Toper V. P. (1952) A. C. ^80: and Amisi Dhatemwa alias Bibi v. Uganda Uganda Criminal Appeal No. Simon Musoke V. R. (1J58) EA 715\* Yowana Serwadda v. Uganda (unreported) Criminal Appeal No. II of 1977 (Uganda Court of Appeal) We find no fault with the learned Judge's direction on the lav/ **I** evidence must always be narrowly examined, as

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## of 1977 (Uganda Court of Appeal).

In the instance case the learned trial Judge relied cn three main pieces of circumstantial evidence. Firstly, the fact that PW1\*s pick up was the one which was involved in the accident after the robbery and out of which the appellant allegedly fled. The weakness of this piece lapse of about two hours between the robbery and the accident. There was no evidence regarding what happened to the pick-up and where it was between the two incidents, Nor was the identity of the persons who were on the pick up at Mukono Police and of the robbers at the scene of crime shown to be the same. of circumstantial evidence is that there was a

Secondly, the evidence of Cadet/ASP Turyagunande Grade (PW5) who testified that the appellant was one of the three men who jumped out of the pick-up after the collision, and who pulled out a gun and fired in the air; that the appellant was wearing a dirty white T-shirt. PW5 could not remember the type of trousers the appellant was in. The learned trial judge accepted the evidence of this witness and found that he had properly identified the appellant as one of those who was on PW1's pick up at the time of the accident.

Thirdly, the evidence of PV/6 and John Okello PV/7\* Both witnesses were in the search party which arrested the appellant. They said that they found him lying in the grass. He was only in pants. They also found gun (which Pair of trousers and a military cap tied in The trousers were also cream in colour. The shirt, trousers and military cap were taken to Mukono Police Station, but not exhibited. PV/5 PV/6 and PW7 also claimed that the appellant was one of those who jumped out of the pick-up, and fired a gun as he ran away, and was in a cream shirt. nearby a was exhibited at the trial), a a cream shirt.

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We find that the evidence of PV/5, PW6 and PV/7 is also too weak to link the appellant with the scene of the crime and the scene of the accident.

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The learned trial Judge also relied on the gun which was allegedlyfound where the appellant was arrested as linking him with the scene of the crime. The victims of the robbery testified that a gun was fired at the scene. PW6 also testified that alighted from the pick up at Mukono Police Station. the case of the prosecution that the same gun was fired at the scene, and at the police station. If guns were fired at both places, what better procedure could have been taken than to havo the empty cartridges collected from both scenes and tested with the gun by ballistic experts for the purpose of excluding or confirming the gun as the weapon fired at the scene of the robbery? No effort to do so was apparently made by the police investigators of this case. Otherwise visual identification of the gun was not possible. a gun was fired by the men who It was, therefore,

At his trial, the appellant said in his unsworn statement that the cream shirt, military cap and the trousers found in the bush did not belong to him. The learned trial judge rejected the appellant's claim in this regard and concluded that the only inference to be drawn from that conduct was that the appellant had removed his clothes to avoid being identified with the clothes and that the finding of these clothes at the scene of arrest irresistably pointed to the appellant as the man who was seen in a dirty cream T-shirt or dirty white shirt. With respect, wo think that the conclusion about the clothes and about the gun as already referred to. •7e think that had she properly evaluated the evidence of what she found she would have conclusion. banana tree. learned trial judge was wrong in coming to such a not come to such a He had left his own clothes at <sup>a</sup> ''Nakitembe"

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The learned trial Judge also relied on the appellant's alleged confession to Pw6 and -P/C NO. 13953 Faustin Atidi Pw8 who were members of the search party who arrested the appellant from the bush. PW6 ' s

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evidence in this regard was:-

"as we continued searching, I saw a man lying down. He was wearing a red underpant. I jumped on to the man without wasting any time. I asked him 'where is the gun you were carrying?' He said "do not kill me the gur is under this grass". I removed the grass which was lying over with my foot and I saw the gun."

PV/8's evidence was:-

''The accused was pleading with Seargeant Drale not to kill him because he had been broguht by his friends\*n

Of this alleged confession the learned trial Judge said this:-

"Another incriminating piece of evidence is his plea to pv/6 not to kill him because he has been allured into the robbery by his friends who had escaped® I believe PW6 and PW8 that the accused spoke swahili. They had no reason to frame him up."

This alleged confession was inadmissible in that it was made to Police suspect. It was not apparently made in accordance with the provisions of Section 2^+ of the amended by the Evidence (Amendment) Decree No. 28 1985, which provides that no confession made by any person whilst ho is in police officer shall bo proved against any such person unless it is made in the immediate presence of a police officer of or above the rank of Assistant Inspector or Officers who were arresting the appellant as a custody of a Evidence Act, as a Magistrate.

Secondly the learned trial Judge did not make a finding as to whether it was voluntarity made.

of the opinion that the learned trial Judge erred in relying on the alleged confession. In the circumstances, we are

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Finally, one other matter we think important to consider in this His alibi was contained in his unsworn statement as follows: appeal, is the learned trial Judge's finding regarding the appellant's t apparent alibi.

> ".... I know nothing about the allegations labelled against me. On 12/05/88 I left my home and went to Mukono to visit a native doctor due to my illnos we spent the night in "ssabo" in Luganda that is a small hut or house built by native doctors where they usually see patients or treat them, sort of medicine house - perhaps a shrine. I explained my ailment to the native doctor (medicine man). The following day of 15/05/88 he gave me herbs with strict instructions to comply with. I was to fetch water from a well using Iwendo ( a kind of calabash or gourd used to draw water from the water pot). I was then told to remove all my clothes and leave them on a banana tree (stoal) known as Nakitembe tree. I was further directed to cut two banana leaves and then pour water drawn from the well with the gourd or calabash on the two banana leaves and put there a native herb called ''bombo" in Luganda. Then I was to sprinkle water over my body using the bombo that is what I did. As I had spent the night in the sabo medicine man's shrine, <sup>I</sup> decided to lie down in the bush when I had bathed myself with the medicine. I woke up and at first I did not know what was happening. Next people gathered and started beating me with sticks7'.

The learned trial Judge rejected the appellant' words: s alibi in the following

> "On the evidence before me I reject the accused's alibi as false and a mere concoction There was nothing at the scene where he was arrested that supported his story. There were no herbs, gourd or untorn banana leaves visible at the scene. He never spent the night at the medicine man's shrine. The prosecution evidence on the other hand puts him right at the scene at the material time."

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banana leaves. We think that the learned trial Judge misdirected herself on this point. In any case, there was no evidence to negative his claim that he had been to a witch doctor on the night of the incident. But such claim did not prove that he could not have committed the crime, which occurred during the day. V/e do not understand that when he was lying in the bush, the been appellant should have/necessarily found with herbs, medicine and

The learned trial Judge's finding that the appellant was put at the scene of the crime at the material time is not supported by evidence as we have shown. For the reasons given, we think that the ground of appeal is well founded. It must succeed. The appeal is, therefore, allowed, and the appellant's conviction for robbery contrary to section 272 and 273 (2) on all three counts is quashed and the sentence of death is set aside. He should be released forthwith unless held on some other lawful ground.

DATED at Mengo this 26th day of October, 1990.

Sgd:

S. T. MANYINDO DEPUTY CHIEF JUSTICE

A. H. O. ODER JUSTICE OF THS SUPREME COURT

H. G. PLATT JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL.

B. F. B. BABIGUMIRA REGISTRAR SUPREME COURT