Ntwirenabo v Uganda (Criminal Appeal 15 of 92) [1993] UGSC 30 (5 February 1993)

<4 •' <sup>&</sup>lt; IN THE SUPREME COURT OF UGANDA

# AT MENGO

(CORAM: MANYINDO, D. C. J., ODER, J. S. C. & PLaTT, JrS. C.)

# criminal APPEAL -HO, 15/92

# BETWEEN

FUKUZI NTWIRENAEO APPELLANT

AND

UGANDA RESPONDENT

(Appeal against conviction and sentence of the High Court.decision holden at Kabale (Hon. Mr, Justice Tsekooko) on the 20th of January 1992).

IN

# HIGH COURT CRIMINAL SESSION CASE NO. 48/8?

# JUDGMENT OF THE COURT

This is again an appeal depending on identification, the evidence for the prosecution being of minimal quality. It is again an appeal where Section 64 of the Trial on Indictments Decree was operated during the course of the trial.

The trial Court hield that on the night of 31st March 1984 the Appellant and another man, not before the Court, broke and entered the house of Edward- Bano'ba, using a deadly weapon to steal a radio cassette. The< wife of Edward Ba'noba, the witness Immaculate Kyomugisha (PV/J) was in the house at the time. When the door was broken open, this witness related that the Appellant entered carrying a long gun . -T'- ' while his friend carried a pistol. The gun wai.s used to assault the witness on the face. She responded to a demand for the radio cassette and money by giving up the radio cassette. At about this time the Appellant Fukuzi had left the house. It seems that Mr. Edward Banoba was returning home at this time. He found the muzzle of a gun pointing at him as he began to enter the house. He had heard cries for help and the rear door was wide open. Instinctively he pushed

2/....

the barrel aside but the gun was fired and injured his right hip. He fell down with his head inside the house and legs outside. The gunman jumped over him and fired a second time. But the second bullet missed him. Then a second person jumped over him holding a radio cassette. The mcn went down the steps. There was a third shot. Edward Banoba continued to lie where he fell until his wife Immaculate came to him. She told him that he had been shot by Fukuzi who had had the gun. But Edward did not identify the man who shot at him. Nor indeed the second man.

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How then did?Immaculate identify the gunman? She had turned on the electric light when the banging on the door had started. There was therefore light in the house. She recognised the Appellant because she had known him in the Skyline hotel in 1981 when she went there to have some food twice a week. The trial Court accepted this evidence as against the Appellant's alibi. Consequently the trial Court with the concurrence of the assessors, convicted the Appellant for his part in this joint venture of robbery contrary to Sections 272, & 273(2) of the Penal Code Act on the first count and with attempted murder contrary to Section 197 (1) of the Penal Code Act on the second count. The Appellant was sentenced to death on the first count but sentence was postponed on the second count. $\mathcal{A}^{(1)}\mathcal{A}^{(2)}$

The Appellant appeals against conviction on both counts, but of course the question of his identification is the main ground of appeal. Ground 1 takes up the aspect that the evidence was not weighed carefully enough both for the prosecution and defence. The Appellant asserted that Immaculate had not properly identified him. Her evidence was not weighed against the alibi defence sufficiently since it was not strong enough to outweigh the defence (ground 2). The defence witness Andrew Mugisha (DW3) should not have been rejected (ground 3) and Immaculate's evidence contained inconsistencies in relation to her statement which

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the defence witness D/IP Mugume (DW1) had recorded (ground ^). These latter inconsistencies were not minor.

It would appear that the Appellant is right in objecting to the way in which the trial Court dealt with the evidence of the single identifying witness. The learned Judge stated the law concerning identification by a single witness. He knew from Roria vs R (1967) E. A. 585 (which relied on Abdullah Bin Wendo (1953)20 E. A. C. A. 166) that such evidence must be carefully scrutinised and only received with great caution. What Careful scrutiny was given at the time that the witness gave evidence? It was too late when writing the judgment to note the questions which might have been put to the witness. It was for the prosecution to demonstrate that the witness was not only honest but also not mistaken. It was for the Court to examine the witness to satisfy >itself on this most dangerous type of case.

There was electric light. The Appellant allegedly held a gun to her face and assaulted her. The incident took about 30 minutes before the alleged robbers left; but the Appellant had left earlier before the second person got the radio cassette from the bedroom and went... away. Immaculate was certain that she had seen the Appellant at Skyline Hotel in early 1981. That was how the prosecution left that point. The Judge asked how she knew him. Immaculate replied-that, she came to see the Appellant in Skyline Hotel because she used to have her meals there on Mondays and Fridays. To the assessors Immaculate answered that this occurred over a period, of about two months. That was how that position was left. That was in 1981. The alleged robbery took pierce in March 198(+^,f. One wpndersfi why person who. h^d/jJ^sHal. jneals **at a hotel would .recognise one of the staff whom the witness described** as being made up of many waitresses and workers in the Hotel.

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is a much wear, recognise one of the reading when the withers described

to tell and of any with water age codes in the fotol.

. . The defence was that the Appellant worked in the kitchen in いきっぱつ November 1980. But Andrew Mugisha (DW3) who worked with the Appellant in the kitchen left in January 1981. The witness came to Kabale in February 1981. What employment did the Appellant have then? The Appellant stated that he had left the Hotel in December 1980. shape (NACTO) It follows that the witness was talking of someone by the Appellant! name, but how she came to know him is not clear. The learned Judge thought that this omission to clarify the situation could be made the fault of the defence, because the situation was not put fully to the Ja Witness. He observed: I in it in heavened alone for the counter The matters of the section or part where accused and DW3 worked in the hotel were not put to PW3 in Her testimony to establish where exactly in the hotel she used to see the state of the Accused. In fact she was not crossexamined as to whether she saw $D. W.3."$ $-010$ $\mathbb{R} \rightarrow \mathbb{R} \cup \mathbb{R} \cup \mathbb{R}$ With respect that is misguided. How could Mugisha (DW3's) evidence $\{1\}_{n\in\mathbb{N}}\cup\{1\}$ **Find 2100** be put to Immaculate when Mugisha had left the Hotel in the month before Standard $A$ . i.d. Immaculate used the Hotel? How could the defence cross-examine on

where the Appellant worked at a time before Immaculate used the Hotel? The cross-examination by the Appellant suggested by the Judge on this

part of his defence was not possible without contradicting the defence.

What could be put elicited the answer:-

$\mathcal{A} \models \mathcal{A}^{\star} \mathcal{A} \rightarrow \mathcal{A}^{\star}$ mitted to death. "I saw the accused working in Skyline Hotel in 1981. I have not forgotten I don't know if he worked there in 1980. But I saw him

in $1981$ ." $\overrightarrow{M}$ of the LAGS has been the

It was not for the defence to establish where exactly in the Hotel,

Immaculate thought that the Appellant worked. That would be reversing The burden of proof. It was solely for the prosecution to establish

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As that procedure seems to be a somewhat hazy notion amongst all concerned in the Courts below, we would set out how the prosecution should have set about its task.

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1. The witness said that she recognised the Appellant in Skyline Hotel for two months after February 1981. Evidence should then have been called from the witness and the Hotel management to show:-

a) When the Appellant worked in the Hotel and in what part of the Hotel? If there were records, when did his employment begin and end? What type of employment was it? If the prosecutor did not call this evidence the Court should have used its powers under Section 37 of

different states to be Trial on Indictments Decree to call for this evidence, the duty of the Court itself to scrutinise as addition. Of course the evidence of identification. Of course the evidence may not have existed at the time of the trial 10 years $\mathcal{X}^{n_{\mathrm{av}}}$ later in 1991; but the attempt should have been made. $\mathcal{L} = \mathcal{L} \mathcal{L}$ The witness should have been called upon to explain how $\mathbf{b}$ ) she came to know the Appellant and his name; and when her association ceased. How many times did she see him and for how long? 12 Straffight

> If the prosecution did not call this evidence, the Court should have examined the witness on this point, $430.22$ 12 The Court must scrutinise the evidence. It has ample powers in Section 37 of the Trial on Indictments Decree and Section 163 of the Evidence Act is explicit;-

> > "The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form at any time, of any witness ..... and may order the production of any document or thing;"......

2. Evidence of consistency. The witness and her husband Edward Banoba agreed that the witness said that Fukuzi had shot Edward, Were there any other reports? The summary of a da there and gate with the P $6/$ ....

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evidence indicated that a neighbour was able to describe what happened, and a report of a suspect was made. This evidence was not called. There was a report to a Police officer. He tried to trace Fukuzi. This evidence was admitted. The witness made a statement to the Police. The prosecution did not call for it. Fortunately the Defence did.

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There were two types of evidence of consistency according to the summary of evidence from the neighbour and the recording Police officer which was not called. V/e cannot possibly imagine why it was not called. This might apparently be more cogent than that of the report to Edward Banoba. <sup>17</sup> o should once again set out the principles established so long ago as 19^2 in Mohamed Bin Allui (19^2) 9EACA 72 to the effect that:-

"... in every case in which there is a question as to the identity of the accused, the fact\_o£\_\_.there having been a description given and the terms of that description are matters of the highest importance of which evidence ought always to be given; first of all, of course, by the person or persons who gave the description and purport to identify the accused and then by the person or persons to whom the description was given:-

It was further said that:-

If the description is recorded at the time in an Occurence Book, Diary or in any other form, such as a book or writing it should be put in evidence, if admissible. Similarly everything that an accused says, if admissible, should be put in evidence, so that the Court should be in possession of all facts whether they support or discredit the accused's defence• There were important discrepancies in the witness's Police statement which the prosecution might have cleared up. Was there an identification parade? If so, what v/as the result? 7/\*•••

The Judge ought to have called for the recording Police officer's statement. Luckily, the major discrepancy related to the identification of another man, not the Appellant.-

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3- Evidence of corroboration.

The learned Judge thought that the fact that three months later in June 1984, the Appellant had a false identification card was corroborative by virtue of his tryijig to conceal-,;his identity. This **offeace 'h-a had allegedly .comitted\* 'Whilo it** might well have been more immediately connected with other matters, it would be useful in this case for the Appellant to conceal his identity.

There is perhaps some misunderstanding about the meaning of the decision in Abdullah Bin Wcndo (1953)20 E. A. C. A. 166

> ''Subject to certain well-known exceptions, it is trite law that a fact may be proved by the testimony of a single witness but this.rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification especially when it is known that the condition favouring -identification wore difficult. In such circumstances, what is needed is other evidence, whether it be circumstantial or direct, pointing to the guilt, from which a Judge or jury can reasonably conclude that the evidence of identification, although based on the evidence of a single'witness, can safely be accepted as free from the possibility of error."

It is a general rule that the Court ought .always look for supporting evidence, if possible, in tiie case of a single prosecution witness giving evidence against the defence of an accused. It is always wise for the prosecution to escape from the risk of failing to prove the case beyond reasonable doubt when it is one person's word against another. In the case of identification that need is much greater. Where identification is based on a situation in which the circumstances were difficult, it is very important to look for corroboration. If there is none the Court must scrutinise

8/....

the- evidence. This is where evidence of all the surrounding circumstances becomes very important if not vital. How can a Court demonstrate its scrutiny of the evidence unless all the circumstance is considered. Even if there are circumstances which afford a good opportunity to identify a person, mistakes can still be made. The evidence must still be scrutinised'/ all the circumstances considered, especially first reports, and corroboration sought if possible. The- impression that cases such as this leave is that the rules are seen as merely mumbo jumbo, simpler state them and forget them, and rely upon the single witness without any background. Even the matter of corroboration was decided with the statement:-

''Even if there had been no corroboration <sup>I</sup> could\*have accepted and acted on her evidence." Was there any actual warning of the danger.of join . so; so as to illustrate that great caution had .been,taken?

As we stated at the beginning,.this case rests upon the least possible evidence. The identification of the Appellant was by way '"of recognising him in reasonable circumstances. The recognition was in some way from the use the.witness Immaculate made of Skyline Hotel. She know his name. She reported his name to tne -witness Edward Banoba \* « ■\* and two days later to the Police officer. The Appellant was using a false identification card three months later. 'The assessors and the Judge were satisfied with the evidence. We have considered the absence of safeguards and other evidence. It has been an onerous task.

Counsel for the 'Appellant has put before us all the proper considerations by which we should Judge the matter. 'Jo agree that there wore misdirections in the learned Judge's approach to the burden of proving the facts which the prosecution ought to have proved. We agree that the discrepancies in the statement

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of Immaculate could not be brushed aside as easily as the learned Judge dido We agree that other evidence ought to have been called.

On the other hand there was evidence which the assessors and Judge could accept if they had been properly directed. The identification parade related to another man possibly the other robber. But ho was not charged. It could not affect the Appellant because he had gone to Kenya- The corroboration found was not strong. There was vconsisteney in the early reports such as we have then. At the end of our deliberations wo came to the conclusion that the evidence on the record was just sufficient''for' the Court to convict the Appellant since much,must have depended on the way the- witnesses testified;'Tthe' Ta'tter is a factor upon which we must defer to the trial Court. Jia ye wondered wh-e-ther there should be. *a-* reatrial , sb that a full record of what happened could- be gathered together, Vie noticed that the medical evidence was admitted towards the end of the prosecution case,. It ought.not to be. allowed at that stage. It ought only to bo allowed at the preliminary hearing. That is quite clear from Section 64 of the Trial o-n Indictments Decroo. But the medical evidence, though :'worth having, did not interfere with the proof of identification, the vital issue. It could relate, to the animus on'count 2, but there Was other evidence **to** p&ove that.

Once the APP®Hant was identified and his alibi defence rejected as raising no doubt as to his identification, then there was a theft, and the use of a deadly weapon to, effect that theft. The conviction on Count <sup>1</sup> was proved.and the appeal against that conviction is dismissed.

On Count 2 the intent to kill was a reasonable inference. The • .... . •- • • • ' v • ..... . ■. ;. <sup>i</sup> conviction on Coiiht 2 is confirmed and the appeal dismissed. . ..< ' - 10/..,.

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The sentence on count <sup>1</sup> was apparently mandatory for a man of the Appellant's age which he gave as 26 years at the time of the trial in November 1991\* That would mean that he was 19 years old at the time of the offence in March 1984. But the Appellant was not medically examined as he ought to have been. Therefore as at the time of the offence his age was near the limit he ought to be examined. The Registrar shall undertake to have the Appellant examined as to his age. The appeal is stood over to the 27th day of January, 1993 for that to be done.

Delivered at Mengo this 14th day of January 1993.

Sgd: S. T. NANYINDO DEPUTY CHIEF JUSTICE A. H. O. ODER JUSTICE OF THE SUPREME COURT H. G. PLATT JUSTICE OF THE SUPREME COURT

5/2/1993

# ORDER

Court: The medical report of Dr. Kawooya is inconclusive about the age of the Appellant as at March 1984 when he committed the offence. According to his own evidence he was just above 18 years. But he did not state his actual date of birth. We cannot say for sure that he was more than 18 years old at the time. Tn the result the ■'.sentence of death is set aside. The Appellant is to be detained in Upper Prison Luzira pending the order of the Minister of Justice under Section 104 of the Trial on Indictments Decree.

Dated at Mengo this 5th day of February, 1993\*

Sgd; S. T. MANYINDO DEPUTY CHIEF JUSTICE A. H. O. ODER JUSTICE OF THE 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 10 -