Uganda v Nuwamanya (HCT-11-CSC 13 of 2013) [2014] UGHC 108 (30 May 2014)

## THE BEPT]BI/IC OF' UGAI\IDA

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# INTHE HIGIH COUBT Of' UGAI\IDAAT KABALE

HCT-1 1-CRTMTNAL CASE-oo-CR-CSC-1 3 / 2013

KAB-O0-CR-AA - 043 / 20tt

cRB- 601/2010

PROSECUTOR UGANDA

### VERSUS

NUWAMANYA CHRISTIOPHER ACCUSED^

### BEFORE HON. JUSTICE MICHAEL ELUBU

#### JUDGMENT

The accused person NIIWAMANYA CHRISTOPHTR, 20, is charged with the offence of defilement contrary to Section L29 l3l and 4 (d). The Indictment was amended from 129 (3) (b) and 4 (a) at the commencement of the hearing.

The particulars of offence are that Nuwamanya Christopher on the 8th of day of March, 201O at Nyakakiri Cell in Kabale District, had unlawful sexual intercourse with ORISHABA YUDITA a girl aged 15 years and being a person living with a disability.

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At his arraignment the accused person, pleaded not guilty to the indictment thereby calling all the ingredients of this offence into issue. The prosecution called 4 witnesses to prove its case.

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Briefly, the prosecution facts are that PW 1, TEIOPISTA EKYENSIRIKORA is the mother of the victim, ORISHABA YUDITA, 17 (PW 4). ORISHABA YUDITA, the victim, is mentally disabled.

On the 8th of March, 2010 at 9:00 a.m PW 1, TEOPISTA EKYENSIRIKORA went to her garden to harvest sweet potatoes. She left the victim in the house asleep but asked one Flora, <sup>a</sup> neighbour, to take care of her when she wakes up.

PW 1 returned from the garden between 11:OO a.m and 12:OO p.m and was told by Flora that the victim had been locked in the house of the accused person. The accused lived in the sarne compound as PW 1. (PW 1 was a tenant of the accused person's parents).

PW 1 called out to the victim who answered from inside the house of the accused person. The door was locked. This prompted PW I to ask the accused to open the door or PW 1 threatened to break it down with a hoe.

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At this point the accused opened the door and ran away jumping over the fence of the homestead. PW 1 started making an alarm as the accused ran.

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PW 2, JOHN BISHIINGWA, a neighbour on the other side of the fence and an uncle to the accused, saw him running and arrested him. He handed the accused to one of the area Councilors.

Meanwhile, PW 1 who had the ability to communicate with her daughter asked her what had happened? The victim told her that the accused person had defiled her. The victim's private parts were wet when PW 1 checked them.

The victim was medically examined and found to be mentally disabled and with a raptured hymen. The medical reports were tendered as P. E 1 (a) and (b).

The accused person was the only witness for the defence and gave a sworn testimony.

He stated that PW 1 was a tenant of his family but had lost a hundred thousand shillings and a sack of sorghum shortly before his arrest. He added that PW 1 alleged it was he who stole these items.

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It was his evidence that there was a long standing grudge between his family and PW 2 who had arrested him. He stated that PW <sup>2</sup> did not arrest him from his compound but from the stage where the accused was doing boda-boda trade. He denied committing the offence.

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As a Criminal Prosecution the burden of proof lies on the prosecution and does not shift. The Prosecution must prove all the ingredients of the offence to a standard beyond reasonable doubt.

In the instant case, the ingredients of Aggravated defilement of a person with a disability are:

- (i) That a sexua-l act was performed on the victim. - (ii) That the victim had a disability. - (iii) That the victim was below 18 years of age by the time of offence. - That it is was the accused who performed the sexual act. (iv)

I shall turn now to the first element of this offence, which is whether the victim was below the age of 18 years at the time.

First the mother of the victim told Court on 19th February, 2Ol4 the day she testified, that her daughter was 17 years old. This would mean that she was definitely below 18 years at the time of the commission of the offence on the Sth of March,20 10,

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The victim was medically examined on the 9th of March, 2OlO at the Kabale Regional Referral Hospital and the Doctors conclusion was that she was 15 years ofage.

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I had the opportunity to see the victim in Court. She was not able to testify coherently and I was thus unable to have testimony from her. By observation however, she was about 17 or 18 years. From O the above therefore I find that the victim was below 18 years of age at the time of the alleged commission of the offence. The first element has therefore been proved.

The second element is whether a sexual act was performed on the victim. A sexual act means the penetration, of the vagina by a sexual organ or the unlawful use of any object or organ on another person's sexual organ. (See Sectlolo 129 of Penal Code Act)

In this case, the mother of the victim told Court that she returned from a garden between 11:00 am and 12:00 pm and found her daughter in the house of the accused person.

That the accused ran out but PW 1 was able to talk to the victim who told her that the accused had put something in her private parts.

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The victim attempted to testify in Court at which time the Court chose to discontinue her testimony because she was incoherent.

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The Courts have dealt with this precise situation and held sexual intercourse need not be proved by testimony of the victim. This is the position the Supreme Court considered in Bassita Hussain vs Uganda; Criminal Appeal No. 35 of 1995 (unreported) and held as follows;

oThe act of sental intercourse or penetration maA be proued bg direct or circumstantial euidence and corroborated bg medical euidence or other euidence. Though desirable, it is not a hard and fast ntle that the uictim's euidence and medical euidence must always be adduced in euery case of defilement to proue sexual intercourse or penetration, Whqteuer euidence the prosecution mag wish to adduce to proue its case, such euidence must be such that it is sufficient to proue the case begond reasonable doubt. "

Here the Court is relying on the testimony of the victim's mother and other pieces of circumstantial evidence. She told Court that she had no difliculty in communication with her daughter and can even send her to fetch items which she will bring. She also told Court that, at that time, she checked her daughter's private parts and found them to be wet.

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?b The victim is said to have spoken to a Police officer, but considering the experience of the Court with her, I am not inclined to rely on the Police oflicer who recorded her statement and said he could communicate with her.

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There is also the Medical evidence in which it was found that the victim's hymen had been ruptured,

As pointed out earlier, this is a case where there is no direct evidence of sexual intercourse and the Court is relying on circumstantial evidence. The inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than guilt (See Mureeba J. and Others Vs Uganda S. C. C. A 13/2OO3)

The victim was in the house of the accused and she told her the accused put something in her and she pointed to her private parts when her mother asked her what happened in house. Then when the accused came out of the house he ran off. The victim's private parts were wet when her mother checked her. Lastly the doctor found that the victim's hymen was ruptured.

The accused denied either being in the house with the victim let alone having sexual intercourse with her.

The foregoing evidence, however, taken together shows a sexual act on the victim and the third ingredient is proved.

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I will look next at participation. The accused denied committing an offence and states the matter is tramped up by PW I and PW 2. He states both held a grudge against him.

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I am mindful that the burden of proof lies with the prosecution but in this case the alleged grudge was never put to any of these witnesses. Therefore I did not believe the story that the mother of the victim lost 1OO,O0O/= and sorghum blaming it on the accused; or that PW 2 had a grudge stemming from a piece of land.

As seen from the resolution of the last ingredient the accused was placed at the scene. The evidence of his conduct is inconsistent with innocence and points to his participation and I find that he participated in this offence.

The last element is whether the victim was a person with a mental disability.

Section 129 (71of the Penal Code Act defines disability as

'a substantial functional limitation of dailg life actiuities caused bg..............menta|-............barriers resulting in limited participation.'

The Court saw the victim and attempted to take evidence which was futile owing to disability. There is also a medical report from Kabale

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hospital verifying the mental state of the victim which report was tendered as exhibit P. E 2.

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Certainly mental barriers have caused the victim to have a limited participation in daily life. I am satislied that the victim is a person with a mental disability.

The accused told court he was 2O years old when he testified making him 16 years in 201O. However a medical examination had found him to be 19 years of age on the 9th of March 201O. This would make him at least 23 today. I therefore do not find that he was a juvenile when the offence was committed.

The lady assessors advised the Court to acquit the accused person but for the foregoing reasons I respectfully disagree.

In the result the accused Nuwamanya Christopher is found guilty of the offence of Aggravated defilement contrary to Sectlons 129 (3) and (41 (d) of The Penal Code Act and is accordingly convicted.

Dated at Kabale this z"T fil f'^l day of 20t4.

MICHAEL ELUBU JUDGE

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Mr. Aduti Timothy holding brief for Baguma Batson.

Mr. Mutungi Kenneth for the Accused.

Accused is present.

Ms. Ampaire Evelyn for Interpretation.

State: The matter is lor Judgment.

Court: Judgment is delivered in open Court.

MICHAEL ELUBU JUDGE 30lsl2oL4

### State:

- r The convict is a first offender. - . He has been in custody since 2OlO. - r He has been found Cuilty of an offence that carries a maxirnum sentence of death. - . Took advantage ofa disabled person. - r His actions should be punished and pray Court imposes a long custodial sentence.

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. I pray for 30 years.

#### Defence:

<sup>a</sup> The convict is a l"t offender.

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- . He is 23 years old. - r At time of arrest he was self-employed. - . This nation needs such young and innovative people. - r He is mentally found normal and can lead to better life here after. - . He is youthful. - r He has future prospects for self and family. - o He can reform given the chance and be a better citizen. - o We pray for lenience

### Accused:

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I am an orphan who was taking care of my mother and sisters.

I pray for a lenient sentence.

# Victim:

### Teopista Ekvensirikora:

I will go with what Court decides.

As a result of this defilement my daughter is now incontinent and her urine just passes.

I took her to a Mental Hospital and she was found to have been damaged.

#### SENTENCE:

- . The convict is treated as a l"t offender. - o He has been on remand since March,2OlO, which is four years.

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. He is a young man.

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- e The Court has taken into consideration his family situation. - r The convict took advantage of a helpless mentally disabled person. - o His actions have caused both the victim and her family great distress and victim is said to be incontinent. - o The Court takes a very dim view of this. - o The actions of the convict must be punished. Those of a like mind must be determined. - o The convict has shown no remorse for his actions. - o In the result this Court finds that a sentence of 30 years is appropriate it shall be reduced by the 4 years on remand and he shall senre 26 years.

MICHAEL ELUBU JUDGE 30lSl2OL4

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