Uganda v Ocero (Criminal Session Case 393 of 1995) [1996] UGHC 27 (15 February 1996)

Full Case Text

## THE REPUBLIC OP UGANDA, **ir i** \* itt.**ait• \*—rnr :—** t~l**—i—r—r**

## IN THE HIGH C. OW'. OJ UGANDA . AT SESSION HODDEN

### AT LIRA

CRIMINAL SESSION CASE NO. 393/95

UGANDA ................ PROSECUTOR

-versus-

OCERO GEORGE . . ACCUSED.

BEFORE: - ^lEJOIQURA^.

# JU.\_.5.0 M E N T

Ocero George, the accused was i^di-c-tod - oxi a charge of defilement contrary to section 123(1) of the Penal Code Act. The particulars of the offence alleged that Ocero George on the 17th. day of October, 1994 at Apami village in Lira District had uhlav/ful sexual intercourse with Bunice Adongo, a girl under the age of 18 *years»*

On arraignment, the accused pleaded not guilty. By that plea, the accused' set in issue all the essential elements in the offence charged. The effect of that is that all the essential elements in the offence charged had to bo proved beyond reasonable doubt if a conviction were to be achieved. The essential elements requiring proof • beyond reasonable doubt in the offence of defilement are;-

- (l) that the victim was at the time of the alleged commission of the offence under the age of 18 years. - (2) that there was unlawful sexual intercourse with the victim. In tins connection, there is need for evidence to prove beyond reasonable doubt that there was penetration of the man's penis into the victim,;s vagina. In that regard ejaculation or penetration to the full length of the man's penis is not necessary. The slightest penetration suffices.

(3) that the accused was the man who had the unlawful sexual intercourse with the victim.

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The law places the burden to prove the above ingredients on the prosecution. An accused does not bear the duty to prove his innocence for our law presumes him innocent until proved guilty.

In the instant case, the prosecution called the evidence of seven witnesses in a bid to discharge the burden placed on it by law. The vitnesses were Dr. Okello David PWI whose evidence was admitted at a Freliminary hearing under section 64 of the TID; the victim (PW2) who because of her tender age and her inability to understand the nature of an oath gave evidence not on oath; Achola Anna (FW3) the mother of the victim, Boni Onanga (FW4), Bitu Ayugi PW5, Othembi Frank PW6 and Dr. Andrew Aliao-Ocero (PW7).

The accused gave evidence on cath in his defence.

On the question whether the victim was at the time of the alleged commission of the offence ... under the age of 18 years, there was ample evidence to answer that question in the affirmative. Dr. Andrew Ocero PW7 who examined the victim three/after the alleged defilement testified that his examination revealed that the victim Eunice Akullu was below ten years. The evidence of Achola Anna FW3, the mother of the victim confirmed the testimony of the Doctor. She testified that the victim was born in 1987. Of all the evidence, the birth certificate $(Exn. P3)$ which was admitted at a Preliminary hearing under section '64 of the TID showed that the victim was horn on $23/3/87$ . This was the best of the evidence on proof of ones age. From the above evidence, like the Assessors I had no difficulty in finding that the prosecution have proved beyond reasonable doubt that the victim was at the time of the alleged commission of the offence under the age of 18 years.

As regards whether there was unlawful sexual intercourse/is considered proved when there is evidence of from the penetration of the man's penis into the victim's vagina outset that inlaw however slight. In this regard, there is the evidence her sexof the victim Eunice Akullu PW2 herself. As pointed out ual inearlier, this witness, of her tender age and her inability course to understand the nature of an oath, gave evidence not on

$...3$

however oatn. She was/possessed of sufficient intelligence to understand the difference he tween and the truth and knew the duty to tell the truth. She told court that the accused had sexual intercourse with her under an orange tree. She went further to state that she felt much pain and hied when he inserted his penis into her vagina.

By lav/ the unsworn evidence of a child of tender age requires corroboration. In the instant case, the evidence of Achola Anna PW3 the mother of the victim indicated that when the victim complained to her of pain in her vagina, she examined her and found bruises at the end of the viotii.i's vagina. This evidence showed consistency on the part of the victim's complaint. The evidence of PW5 the women leader of Wigweng LG T showed that at the request of the Chairman DC I of Wigweng she examined the victim who was alleged to have defiled. According to PW5, she found bruises at the victim's vagina. This is yet another evidence of consistency of the victim's complaint.

Then there was the evidence of Dr. Andrew Aliao Ocero PW7. He testified that ho examined the victim three days after the alleged defilement on her and he found that her hynan was recently raptured with bruises two to three days old at . the eA-^rceof the victim' s vagina. According to the Doctor, he concluded that-there was penetration. Mr. Emoru Counsel for the accused, attacked the report made by this Dr. after the examination for stating that the vulva and labia of the victim's vagina were found normal. The Report was at the trial received in evidence and was narked Exn P4. According to the learned counsel, that Report was faulty because in his view, the slighest - penetration could cause inflamation of the labia. In paragraph 3 of that Report Exn P4, the Doctor indicated that there were bruises at the entrance of the victirJ's vagina. This in my view still supports the Doctor's conclusion.

The learned counsel further attacked the evidence of the Doctor (PW7) for not being consistent on whether an hyman could also be raptured by some other objects. I think with respect 'to the learned counsel, that/a^fbSck

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was not well founded because the Doctor (PW7) answered that any other object penetrating the vagina could rapture the hynan. This is what the record revealed. He only denied assertion that mere physical examination to see if the; victim had injury in her privatc/BSSid cause a rapture of the hynan.

z I did observe this witness (Pr/7) as he testified before me and I must say that he impressed ne as a good expert f expert witness who knew what he was talking about and backed his conclusions with sound professional reasons. Dike the Assessors I believe Ms evidence that there was penetration. This provided the requisite corroboration to the unsworn evidence of the victim that • there A -been " . had]/sexual intercourse with her.

> There were of course some descrepancios in the evideno of PW3? PW4 and PW5 as to the posit\* on of the injuries found on the victim, but those are not grave discrepancies since they can be explained on lapse of time and the level of education of the witnesses concerned\* There were also descrepancics in the evidence of PV/2, PW3 and PW5 when they referred to vagina as ''anus". B But this was later satisfactorily explained that in this part of the country women often refer to vagina as 'TTguny" literally meaning "anusn. In fact when the victim, was asked to point at the 11 anus'1 she was referring to, she pointed to her front to mean vagina\*

Dike the Assessors, I do find that the prosecution have proved beyond reasonable doubt that there was an unla^wful sexual intercourse with the victim.

On whether it was the accused who had the unlawful sexual intercourse with the victim, there is the evidence of the victim given not on oath. She told court that she knew the accused. That he•took her under an orange tree where he removed her dross, pulled out his penis and-inserted it into her vagina. According to the victim, the incident happened during day time.

The accused who gave sworn evidence in his defence admitted that the victim is bis grand child.

- 4 -

.... /5\*

According to the accused the victim lives with her nother within his honestead. I think this is sufficient corroboration to the vic tin's story that she had known the accused before this incident. Nonetheless, there is still need for an independent evidence that would connect the accused with the comission of this offence besides the vic'tin's olain.

Counsel for the prosecution sought to show that the conduct of the accused provided the requisite corroboration. There was evidence that the accused wont out to drink soon after the incident and returned very late at night. I discarded this type of evidence because, there was evidence which indicated that the going of the accused to the drinking place was not a sudden and strange conduct. Thas group nalwa was arranged long before- and the accused was a nonber of the group. His going was normal.

The facts of this case clearly differs fron the case of Kaladio Terekabi. . Vs. . Uganda 1975 KCB\_63\_«

Tn that case the deceased was seen running with a cut wound on his head and'was covered in blood. He conplained to two separate people that he was cut by Terckabi. The deceased died a few hours later. The accused who heard of the deceased's death disappeared fron the village for three days. Ho did not attend the inquiry into the death of the deceased.

It was held amongst other things that the conduct of the accused in disappearing fron his village for three days soon after the incident corroborated the dying declaration.

In the instant case, the going of the accused to drink the group I.ialwa (Aid.ba) was planned before this incident and the accused -as a nenber of the group • was expected to be there. His going was therefore not a strange conduct.

There is however, a confession which the accused had made to the Magistrate Grade I (PWo) • In that confession the accused adnittcd having had sexual intercourse with the victim. This confession was retracted.

)

It was however received in evidence after a trial within a trial and was narked Exn. P3,

d irect , . It is purhapds educative to &lt; our rands at this stage to the law governing retracted or repudiated confession. It was held in ilyvvanoi at. Pagp-\_\_9l, that " a trial court accepts ary confession which has been retracted or repudiated with a caution and oust before founding a conviction on such a confession be fully satisfied in all the circumstances of the case that the confession is true"

The above is still good law as it was recently approved by the supreme court of Uganda in Ispya J5i^ui^. Vs^. U^rda Cr^, col Up.&lt; ,.,24/89,/mircpprXodX

I/y understanding of the above principle is that it is not absolutely necessary to look for corroboration in • order to base a conviction on a retracted or repudiated confession provided that the court is fully satisfied in . . all the circumstances of the case that the confession is true. In practice though? courts usually look for -con\*obora'bi on.

In the instant case, counsel for the accused attacked the confession Exh. P3 as not being sufficiently detailed to be true. In the view of the learned counsel, for such a confession to have evidential value, it should have contained how the penis was pulled out and on what part of the body of the girl it was put. It was the contention uf the learned counsel that since those details as hcLenU|0\* A' wore lacl^uig in this confession, the confession could not bo said to be true.

'The relevant portion of the instant confession reads,

> 11 On Monday 17th October nt midday I had sexual intercourse with my grand daughter. There was no body at hone. My wife had gone to her hone village at Apala in Moroto County the previous week. The mother of the child was in another house drunk and aslec-p as she hud been for a beer party. I admit that I had sexual intercourse with ths girl end an now confessing that

I oomitted the offonce\* I pray to God to help me not to commit the sone offence in. future "

*-7 -*

In *riy* view the above confession is sufficiently detailed to bo- true. It showed the time when the incident, took place, whoro^mother and grandmother of the child were at the material timo-lii2&£ the Assessors, I am satisfied that in all the circumstances of the case, the above confession is true. It contained all the nocess.ary details,

Thais provided sufficient corroboration to the unsworn evidence of the victim that it was the accused who had the unlawful sexual intercourse with her.

The ancusod in his defence gave evidence on oath. In that testimony, the accused told court that he had a black out for two hours from 11.00 a.m. to 1.00- p,n, Aocordin/?; to the accused, during that blaok out\* he did not lenow what was happening and could not remember whether he had sexual intercourse with the victim. I understood the accused by that evidence to .be raising a defonec of insanity .

Section 12 of.the Penal Code Act provides in effect that a person who cor-asits an offence at the time when through any disease of the- mind ho was incapable of understanding what he was doing or that what ho did was wrong is not criminally responsible for his act or 1 omission causing the offence. Section 11 of the Penal Code Act however presumes every body to be sane, That meant that an accused who raises a defence of insanity bears the burden to rebut that presumption. He had to adduce evidence to establish the probability of the existence of bis insanity at the material time. The standard of proof required of bin is however low. The la,w states that the burden to establish fact which is required to be established by an accused, is discharged by the accused shoving the probability of its exis tones. see (Pc- sto Shirabu..s/p\_ Pagcingru. Vs 22 PACA A5JJ.

/8.

Rw The story of the accused that ]?e had a block out *Jg /* for two Jiours and that later lie recovered, fully without any trace of/pr^blem is quite incredible to say the least. It is even more interesting that the period of the black out only covered the period "hen the offence was alleged to have been committed. There was no evidence that such incident had happened before. After that the accused was able to go out to attend to his group diinking without any trace of the effect of that black out. Like the Assessors I do not believe this story as it is incredible. I therefore find that the probability of the existence of that insanity at the time had not been established. The presumption of sanity ilieroforo had. not been •'

> The victim had also told court that the accused had been drinking a local brew before the incident. From tliat evidence, the learned counsel for the accused submitted that court should consider the defence of intoxication if abailable to the .accused.

Section 13 of the Feral Code Act provides for the defence due to intoxication\* under section 13(2) (a) of the Penal' Code Act,if the intoxication was caused without the consent of the accused by the malicious or negligent a«t of another person, the accused .shall not be criminally responsible for Iris act or omission resulting into the commission of the offence. Under section 13(2)(b),if the intoxication caused a temporary insanity, the principle relating.to the defence of insanity applies. That meant the accused would haveZprove the existence of the insanity though the standard of proof required is only on the balance of probability.

Ln the instant ca.se, on the. evidence available, --.-I defences . . , , the above possible are not avallaole to the accused. Bi the case of insanity it was up io the accused to show that his alleged black out was caused by intoxication. That was not done.

Section 13(4) of the renal Code creates another defence where by reason of intoxication the accused could not form, the specific intent necessary to corp?it the offence charged. In the instant case ,this defence is even not available to the accused because there is no

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specific intent necessary to commit\* the offence of defilerient, If it vzere, it would have been the duty of the prosecution to prove that the; accused was capable of forming the intent accessary to commit the offence. In the whole, from the evidence on record, the defence of intoxication is not available to the accused. I s^ree with the assessors1 that the defence of insanity raised by the accused was a shara anc£n\*o\*G boon established. It is therefore rejected and the accused is found guilty as charged. Me is accord1ngly convic tcd.

" q \_

JUJXah 15/2/36

#### Sentence,: -

There is no doubt that the offence of which the accused has been convicted is a serious one. It carries maxir-ium sentence of death. But\* court has discretion to give lesser sentence.

In t-iis case the accused is a first offender -» This court has established practice not to impose maximum sentence on a first offender. Accused is an old ran said to be 50 years. lie had been in custody for about a year since 10/11/94. Sentence should fit tlio offence and the offender, I think it is not fair to l^s^potienally punish the accused because the type of offence he was convicted of is rampant.

After considering all the circumstances of. the case, the conditions of the accused-. I consider 6 years imprisonment adequate. So I order.

15/2/36