Ochwo v Uganda (Criminal Appeal 407 of 2019) [2024] UGCA 155 (12 July 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGN{DA AT I(AMPALA

lCoram: Barishaki, Obura & Luswata, JJAI

# CRIMINAL APPEAL NO. O4OZ of 2OL9

(Aising from the judgment of the High Court of Uganda [Kanaesa, J], in Criminal Session Case No. 0039 of 2019 at Mpigi, deliuered on 20th dag of September, 2019)

OCHWO RONALD ====== ===== ========== ===== ======= =====flppellant

#### VERSUS

UGANDA = == = = = = = = = = = = = = = == = = = = == = = = = = = = = = = = = = = = == = = = = pg5pOndent

### JUDGMENT OF THE COURT

# Introduction

- [1] The Appetlant was indicted for the offence of aggravated defilement contrary to sections 129(3) and (a) of the Penal Code Act Cap 120. The particulars of the offence were that on the 30th June 2OI7, the Appellant while at Katale Busawula Village, Kyengera Town Council in Wakiso District, performed a sexual act with NJ, a girl aged 7 years old. - [2] The learned trial Judge, on 26th June 2OL9, convicted the Appellant. On 2oft September 2019, the learned trial Judge sentenced the Appellant to serve 20 years imprisonment to run from the first date of remand. - [3] The Appellant Appealed against conviction and sentence. Three grounds of Appeal were raised.

i) That tLrc learned Tial Judge eted in Law uthen he tied the Appellant at Mpigi High Court Circuit for an offence committed in Wakiso Distict.

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ii) That the learned Tial Judge erred in lana and fact uthen he failed to properlg eualuate the euidence that the Appellant performed a sexual act utith the uictim, therebg wrongly conuicted the Appellant'

iii) Ttnt the learned Tial Judge erred in lant and fact uthen he did not deduct the period the Appellant spent on remaltd and thereby meted out a manifestlg harsh and excessiue sentence.

[a] The Respondent opposed the Appeal on grounds that the learned trial judge properly evaluated the evidence thereby arriving at the right conclusion. Further, that the creation of circuits did not oust the original jurisdiction of High Court. In regard to the sentence, the Respondent contended that a sentence of 20 years falls within the sentencing range of up to 35 years provided for in the sentencing guidelines, and was neither harsh nor excessive.

#### Submissions

## Appellant's Submissions.

- [5] At the hearing of this Appeal, Mr. Seth Rukundo an Advocate on State Brief appeared for the Appellant while Ms. Caroline Marion Acio, Chief State Attorney in the Office of the Director of Public Prosecutions appeared for the Respondent. - [6] Counsel for the Appellant contended that the learned trial Judge sitting at Mpigi, had no territorial jurisdiction to handle a case allegedly commiitted in Kyengera town Council Wakiso District because the Judicature (Designation of High Court Circuits) Instrument,2016, S.1 55 of 2016, did not include Wakiso in the circuit of Mpigi. Counsel submitted that Mpigi circuit was created by the instrument since 14ft

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July 2016, before the alleged offence was committed in 2OI7. That a Court acting outside its jurisdicition may occasion a miscarriage of justice.

- [7] Relying on Section la(1) of the Judicature Act, counsel contended that High Court Circuits operate within the local limits of areas designated. He further relied on paragraph 3 of S. I 55 of 2OL6 which provides that a trial shall be held where the act was done or where the consequence ensued. He submitted that the trial of the Appellant was an illegality. - [8] Counsel further challenged the admission of PF3A, the medical examination report of the victim, without ttre oral testimony of the Senior Clinical Officer Asiku Denis. That the report which described the injuries on the victim's genitals and draw the conclusion that the injuries were occasioned by sexual assault without subjecting the medical officer to cross examination fell short of the required standard of proof of defilement, rendering the conviction unsafe. Counsel for the Appellant also challenged the evidence of Pw2 and Pw3, the Victim's mother and the Victim respectively, on grounds that it was fabricated for purposes of securing a conviction. - [9] In respect to sentence, the Appellant challenged the failure by the learned trial judge to take into account mitigating factors and to deduct the period spent on remand resulting into an excessive sentence. He cited the case of Kiwalabye Benard Vs. Uganda Criminal Appeal No. 143 of 2OOl for the preposition that the appellate Court is not to interfere with a sentence imposed by a trial Court which has exercised its discretion on sentence unless the exercise of discretion is such that

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it results into a manifesfly harsh and excessive sentence, or so low a sentence as to amount to a miscarriage of justice, or where Court ignored to consider an important matter or circumstance which ought to be considered in passing a sentence or where a sentence passed is wrong in principle. He therefore prayed that this ground be allowed and the sentence be reduced to 10 years'imprisonment.

### Respondent's submisslons.

- [10] The Respondent submitted that the creation of circuits was not intended to limit the Jurisdiction of a High Court Judge. That no injustice was occasioned to the Appellant by reason of being tried at Mpigi Court. In respect to admission of medical evidence in absence of the testimony of the Clinical Officer, Counsel cited section 66 of the Trial on Indictment Act and subsection 3 thereof, which provides that admitted documents and evidence shall be deemed to have been duly proved except if during trial, the Judge form an opinion that such admitted facts or evidence be formally proved. Counsel contended that in this case, the trial Judge did not form an opinion that the contents of P EX 1, the medical examination report needed formal proof beyond its admission by both parties. - Fll The Chief State Attorney further submitted that the trial judge evaluated the evidence of prosecution witness and the defence to prove all the ingredients of the offence, before convicting the Appellant. She referred Court to Pages 11 to 15 and page 19 of the record of Appeal where the evidence of Pw2 and Pw3 was analysed to prove a sexual act and the participation of the Appellant. Counsel averred that the case of

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Malna V R [19701E. A cited by Counsel for the Appellant to discredit the evidence of Pw3 for lack of corroboration was no longer applicable because corroboration was no longer required to prove sexual offences. She referred to the case of Sentbuga Joseph Vs Uganda, COA CA No.

## 747 of 2OO8

[12|- The Respondent submitted in response to ground 3 of the Appeal, that the sentence of 20 years'imprisonment was far below the maximum sentence of death prescribed for the offence of aggravated defilement, and fell within the sentencing range of 35 years'imprisonment provided for by the Sentencing Guideline. Further, that the trial Judge did not overlook any material facts and that he considered both the aggravating and mitigating factors. She cited the case Anguyo Sllua V Uganda Crlmlnal Appeal AIo. O38 of 2074 where Court of Appeal imposed a sentence of 2L years for the offence of aggravated defilement, and Magoro Husseln V tlganda Crlmlnal Appeal No. 0267 & 3OS of 2076 where Court of Appeal upheld a sentence of 20 years for defilement of a S-year-old girl. She prayed that the Appeal be dismissed.

## Court's consideration.

[13] The duty of the first Appellate Court is to re-appraise the evidence at the trial Court and come to its owrr conclusion. See Rule 30(1)(a) of the Judicature (Court of Appealf Rules. However, we have to bear in mind that we did not have the opportunity to see and hear the witnesses as they testified. See Bogere Moses Vs Uganda [19981 UGSC 22; Selle

& Another Vs Associated Motor Boat Co [19681 E. A 123, Pandya Vs R [1954 E. A336 and Kifamutwe Henry Vs Uganda [19981 UGSC 20 @ound. 7

- [14] The Appellant contended that the trial judge did not have the territorial jurisdiction to handle a case committed in Wakiso District because the Judicature (Designation of High Court Circuits) Instrument, 2016, S. 1 55 of 2016, did not include Wakiso under the circuit of Mpigi. The Respondent avered that the creation of circuits was to streamline administrative case management but not to oust the unlimited Jurisdiction of a Judge of the High Court. - [15] Section 19 of the Judicature Act cap 13 provides that High Court shall hold sessions in various areas of Uganda to be designated High Court circuits for the trial of civil and criminal causes. S. I 55 of 2OL6 defined the geographical coverage of Mpigi High Court Circuit to include Butambala, Gomba and Mpigi. Clearly, an offence committed in Katale Busawula Village in Wakiso District, did not administratively fall within the territorial jurisdiction of Mpigi. The question however is whether the trial at Mpigi occasioned a miscarriage of justice to render interference by this Court? The Respondent contends that the creation of circuits was not intended to oust the unlimited jurisdiction of High Court but to streamline the management of cases by ensuring orderly disposal and reducing conflicts over cases by different Courts. - [16] In the case of Muteslguta Robert V Uganda, Crlmlnal Appeal 247 of 2079 Court observed that:

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"It is also trite that euen where the Court has erred, the appellate Court interferes uith the decision of the lower Court only uhere there has been a miscarriage of justice to ang of the parties inthe proceedings. The appellate Court is guided bg the presumption of innocence under Article 28(1)(a) of the 1995 Constitution of Uganda and the burden of proof as articulated in the case of uoomimgton V DPP, 1936AC 462".

lLTl We have perused the record of Appeal and note that the issue of territorial jurisdiction was not raised throughout the trial. We acknowledge that the offence was committed in Wakiso District, which is outside the designated coverage of Mpigi High Court Circuit, where it was heard. But for this Court to interfere with the decision of the lower Court it must be demonstrated that the omission led to failure ofjustice as provided in section 139 of the Trial on Indictment Act.

The Section provides that;

"L39. Reversibility or alteration of finding, sentence or order because oferror, etc

(1) SubJect to the provisions of any written l,aw, no flnding, sentence or order passed by High Court shall be reversed or altered on Appeal on account of any error, omlssion, irregularlty or misdirection in the summons, warrant, indictment, order, judgement or other proceedings before or during the trial unless the error, omission, irregularity or misdirection has in fact occasioned a failure of Justice.

PageT of L4 l2l In determining whether any error, omisslon irregularity or misdirection has in fact occasioned a fallure ofJustice, the Court shall have regard to the question whether the obJection could and should have been raised at an earlier stage in the proceedings.'

[18] As indicated earlier, the Appellant and Counsel did not raise the issue of jurisdiction at all. It has not been proved that the trial at Mpigi occasioned a miscarriage of justice. And as righfly submitted by the Respondent, the creation of circuits did not oust the unlimited jurisdiction of High Court.

Ground 1 of the Appeal fails.

#### Ground 2

- [19] The trial Judge was faulted for admitting medical evidence without hearing the oral evidence of the Medical Practitioner who examined the victim and the accused. He was further faulted for not properly evaluating evidence and improperly convicting the accused based on uncorroborated evidence of Pw2 and Pw3. - l2}l At pages 1O and 11 of the record of Appeal, PF3A was admitted as an agreed document and was marked PEX1 while PF24A was marked PEXI. Section 66(3) of the Trial on Indictment Act provides that any fact or document admitted or agreed upon shall be deemed to have been duly proved. Once a document has been admitted, the contents thereof are also considered proved unless, during the course of the trial, ttre Court is of the opinion that it has to be proved formerly.

# l2ll In Etoma Vs Uganda, Criminal Appeal No.4O4 Of 2016, this Court held that;

"A memorandum of an agreed facts speaks for itself, that is, the contents of the docum.ents conceded thereunder u-tould amount to conceded facts. If the Appellant taas not comfortable with the findings in the medical report or the credentials of the author thereof, as is the contention before lts nou), he should neuer haue conceded to its admission under memorandum of agreed facts. That is ttrc import of Section 57 of the Euidence Act, uthich obuiates the needforfurther proof of fact that has been admitted by consent of the parties"

l22l No error or miscarriage ofjustice was occasioned by reason of not summoning the medical practioner in view of the admitted facts.

[23l The Appellant further faulted the trial judge for re\ring on evidence on Pw2 and Pw3, the mother of the victim and the victim on grounds that women tend to give false testimony in sexual offences. He relied on Maina V R 1O7O E. A. Counsel for the Appellant reproduced the evidence of Pwl and Pw3 in his submissions. He stated that the victim should have narrated the fact of penetration herself and not the mother. I have looked at the record of proceedings. At pages 11 to 13, Pwl narrates that she sent her daughter to fetch firewood. Nyakato returned home while Nyangoma did not. Pwl went in search of the daughter while calling out her name and at a nearby building, she saw the Appellant who used to work there, peeping. When she asked the Appellant about Nyangoma the Appellant responded that she had gone to buy ice cream and cassava.

- [24] When the mother did not find the daughter at the vending stalls, she returned to search around the building and saw her daughter running away. She caught up with her and the daughter revealed that she had been defiled by the Appellant. The victim testified that tl.e Appellant took her to a building upstairs, removed her knickers and inserted his penis in her vagina. Pw4, rescued the Appellant from a mob that intended to harm him. The Appellant denied committing the offence, denied knowing the victim but also admitted that he had no grudge with them. - [25] In his judgement at page 19, the trial judge stated that PEX1 was corroborated by the testimony of Pw3, the victim. The trial Judge also believed the evidence of identification of the Appellant tendered by ttre victim and the mother noting that the offence occurred in the afternoon in broad day light, with ample opportunity to correcfly identify the Appellant. Court further found the evidence of Pw4 a police officer whom the victim led to the scene of crime for reconstruction unrebutted. - 126l We have reviewed the evidence on record and affirm that the trial Court rightly analysed the evidence leading to the conviction of the Appellant. The Maina case cited by Counsel for the Appellant is no longer good law in respect to corroboration in sexual offences. In the case of Sentbega Joseph V Uganda CACA No. 747 of 2OO8, Court stated that it was no longer mandatory to require the evidence of a victim of a sexual offence to be corroborated. The Justice's quoted with

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approval the decision in Ba,soga Patr-lck V Uganda Crlmlnal Appeal No. 42 of 2OO2 where Court of Appeal held that ". decisions which hold that corroboration is essential in sexual offences before a conviction are not good law as they conflict with the constitution."

The 2"d ground of Appeal fails.

#### Ground 3

l27l The law that governs appellate Courts in regard to sentencing is well settled. In I(amya Johnson v Uganda; SCCA No. 16 of 2OOO, the Supreme Court held:

> '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.'

The learned trial Judge's sentencing order was couched as follows;

### "Sentence and Reasons for the sentence

. . . the offence is rampant and must be deterred. It carries a maximum of death. The aggravating factor is that the victim was only 6 years. The mitigating is that the offender is young and remorseful and willing to reform. Given the circumstances of this case, the accused needs a reformative sentence, which can also deter others. The accused is

# sentenced to a custolli€llsenle

## l.t date of remand."

- 128l Counsel for the Appellant challenged the failure by the trial Judge to consider the period the Appellant had spent on remand. The Respondent did not rebut the Appellant's contention. The above excerpt from the sentencing notes shows that the learned trail Judge indeed did not consider the period the Appellant had spent on remand. That therefore makes the sentence illegal in as far as it contravenes Articte 23(8) of the Constitution. It is hereby set aside. The Court is enjoined to invoke its powers under section 11 of the Judicature Act and sentence the Appellant. Court is mindful that the maximum punishment for the offence of aggravated defilement is death. Whereas there is need for consistency and uniformity, each case presents unique facts and circumstances. - l2el Both Counsel cited cases in favour of the arguments advanced for either reduction of the sentence in the case of the Appellant and for upholding the sentence in the case of the Respondent. Counsel for the Appellant suggested 10 years' imprisonment while the Respondent prayed to maintain 20 years imprisonment. In Bacua Benon Vs Uganda; CACA No. 869 of 20 74 Court confirmed a sentence of life imprisonment upon the Appellant who pleaded guilty to aggravated defilement. In Luangaga Joseph Vs Uganda CACA 535 of 2076 delhrcred on 7h June 2023 Court sentenced the Appellant to 22 years imprisonment for aggravated defilement. - [30] In the instant case, the Appellant was 25 years at the time of commission of the offence while the victim was 6 years old. The Prosecution had prayed that ttre offender be sentenced to 30 years because of the seriousness of the

offence, for which no remorse has been shown. The convict on the other hand prayed for leniency on account of being a first offender and a young man capable of reforming. The trial Court in arriving at a sentence of 20 years noted that the age of the victim was an aggravating factor while the youthful age of the offender was a mitigating factor.

[31] Given the need for uniformity and consistency in sentencing for similar offences, and regard being paid to cases highlighted above in respect to sentencing, we find that 20 years imprisonment would be an appropriate sentence under the circumstances of the case. Neither the Appellant nor the Respondent submitted in respect to the period the Appellant spent on remand. However, the original record shows that the Appellant was first remanded on $10th$ July 2017 when he first appeared for plea taking. He stayed in custody till the date of conviction on 26th June 2019. This is a period of 1 year 10 months and 16 days on remand. This period shall be deducted from 20 years. The Appellant shall serve 18 years 1month and 14 days' imprisonment. The sentence shall run from the date of conviction. The Appeal therefore succeeds in part to the extent that the conviction is confirmed and the sentence substituted as ordered above.

Dated at Kampala this $\frac{12}{2}$ day of $\frac{12}{2}$ day of ...................................

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-- L t

Barishaka Justice of Appeal

Hellen Obura Justice of Appeal

.t Eva Luswata \

Justice of Appeal