Uganda v Okidi (Criminal Session Case 94 of 2022) [2024] UGHC 772 (26 August 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT GULU

#### HCT-02-CR-SC-94 OF 2022

(Arising from Criminal Case No. AA.59/2021, GUL CRB – 774/2021)

#### 10 UGANDAmmuniminiminiminiminiminiminiminiminimin $=$ VERSUS $=$

OKIDI SIMON ::::::::::::::::::::::::::::::::::::

### BEFORE HON. JUSTICE ACELLAM COLLINS

#### 15

# **RULING**

#### **Introduction**

The accused in this case is indicted with the offence of aggravated defilement contrary to section 129 (3)(4)(a) of the Penal Code Act. It is alleged that the accused on the 13<sup>th</sup> day of July 2021 at Pajaa Village Patiko sub county in Gulu District performed a sextual act with LAWINO PRISCA

SUNDAY, a girl aged 12 years. The accused pleaded not guilty to the indictment. In a bid to 20 prove the indictment against the accused, the prosecution called two witnesses and then closed its case.

### Legal Representation

The Accused person was represented by Counsel Ladwar Walter Okidi on state brief, while the prosecution was represented by Mr. Kyomuhendo Joseph, Chief State Attorney. 25

#### The Law:

At the close of the prosecution case, section 73 (2) of The Trial on Indictments Act, requires this 30 court to determine whether or not the evidence adduced has established a *prima facie* case against the accused. It is only if a *prima facie* case has been made out against the accused that he should be put to his defence. Where at the close of the prosecution case a *prima facie* case has not been made out, the accused would be entitled to an acquittal (See Wabiro alias Musa v. R [1960] E. A. 184 and Kadiri Kyanju and Others v. Uganda [1974] HCB 215).

A prima facie case is established when the evidence adduced is such that a reasonable tribunal, 35 properly directing its mind on the law and evidence, would convict the accused person if no evidence or explanation was set up by the defence. (See Rananlal T. Bhatt v. R. [1957] EA 332). The evidence adduced at this stage, should be sufficient to require the accused to offer an explanation, lest he runs the risk of being convicted. It is the reason why in that case it was

$\mathsf{S}$


$\mathbf{1}$

- decided by the Eastern Africa Court of Appeal that a prima facie case could not be established by $\mathsf{S}$ a mere scintilla of evidence or by any amount of worthless, discredited prosecution evidence. The prosecution though at this stage is not required to have proved the case beyond reasonable doubt since such a determination can only be made after hearing both the prosecution and the defence. - There are mainly two considerations justifying a finding that there is no prima facie case made 10 out as stated in the Practice Note of Lord Parker which was published and reported in [1962] ALL E. R 448 and also applied in Uganda v. Alfred Ateu [1974] HCB 179, as follows: - - When there has been no evidence to prove an essential ingredient in the alleged $a.$ offence, or

b. When the evidence adduced by prosecution has been so discredited as a result of cross examination or is manifestly unreliable that no reasonable court could safely convict on it.

Both counsel made their submissions as to whether the accused had a case to answer and left the determination of that issue to court. At this stage, I have to determine whether the prosecution

- has led sufficient evidence capable of proving each of the ingredients of the offence of aggravated 20 defilement and whether such evidence has not been so discredited as a result of cross examination or is manifestly unreliable that no reasonable court could safely convict on it, if the accused offered no explanation. For the accused to be required to defend himself, the prosecution must have led evidence of such a quality or standard on each of the following essential ingredients. - 25 - 1. That the victim was below 14 years of age - That there was a sexual act performed on the victim. $2.$ - 3. That it was the accused who committed the offence.

The prosecution relied on 2 witnesses in an effort to prove the above ingredients to wit; - PW1, 30 Lawino Prisca Sunday, the victim who is a minor and PW2; Okello Labedo, a Senior Clinical Officer based at Awach Health Centre IV who examined the victim on Form PF3A which was admitted and marked as PEX2.

The burden of proof in criminal cases rests squarely on the prosecution and does not shift to the accused unless it is exempted by statute, which is not the case herein. The standard of proof is high.

It is important to note, that for the accused person to be put on defence, court must be ready to convict if he offers no explanation on the credible, admissible and high-quality evidence in support of each ingredient of the offence but not to shift the burden of proof to the accused as any conviction must be based on the strength of the prosecution.

$\mathsf{2}$


- In the instant case, the victim testified that on the 13<sup>th</sup>.07.2021 in Awach in Patiko in Omoti $\mathsf{S}$ Village at around midday her, mother sent her to grind and to buy silver fish. When she reached Abera stream, she found some children bathing. As she was passing, she heard them stopping her, but she continued walking. That Okidi picked a bicycle and started riding after her and asked for her names. She refused to tell him and then he rode and went away a head of her. That - 10 when she was coming back from the grinding mill at Awach trading centre at around 2:00 Pm, she heard a bicycle following her. He came and stopped, and they started moving till he passed Abera stream. That Okidi was the one riding the bicycle after they crossed the stream, and he started asking for her name again. She refused to tell him my name. She told him to leave her to take the flour home. He grabbed her and dragged her to the bush. He told her he wanted to have

15 sex with her. He then started slapping and boxing her eyes and started removing her knickers. However, she heard people talking on the road and made an alarm and he left.

The victim further adds that the accused wanted to sleep with her, but she struggled so he did not do anything. That he touched her private parts and also pushed his hands inside and when she made an alarm, he left.

In cross examination, PW1 emphasized that nobody had sex with her and that is the truth. The victim, PW1 also told this court that she recorded a statement at police, and she was medically examined. She told police the same thing she told court. She adds that she was taken to the hospital the following day on 14<sup>th</sup> July, 2021 and the doctor said there was nothing. There was no HIV, and they also found that they did not have sexual intercourse with her.

The prosecution also relied on the testimony of PW2, OKELLO LABEDO, a health worker based of Awach Health Centre IV. He testified that when he examined the victim, she was found to be 13 years by turner method of assessment which method involved assessment of age by development of breast as 10-13 years, the breast starts shooting. He also told this court that there were marked bruise wounds on the left side of the face but mentally sound. That her genitalia and vulva looked swollen and there was marked remains of semen noted between the thighs, bruise wound also seen on the upper aspect of the vaginal wall and hymen raptured and he states

35 In cross examination, when asked whether he saw any evidence of penetration, he told court that there was evidence of penetration and remains of semen deposits which means that there was sextual intercourse.

that the probable cause was a blunt object /penetration.

## Anaylsis

As already noted, Section 73 of The Trial on Indictments Act (TIA), requires this court to determine whether or not the evidence adduced has established a prima facie case against the 40 accused. It is only when such a prima facie case has been made out against the accused person that he should be put to his defence.

$\overline{3}$

- Suffices to note that at this stage, the court is expected to evaluate the prosecution evidence and $5$ determine whether it is sufficient, credible and capable of proving all the ingredients of the offence of aggravated defilement and whether such evidence has not been discredited during cross examination or that it is manifestly unreliable that no reasonable tribunal or court can safely convict on it. - The prosecution therefore has the duty to prove all the ingredients of the offence preferred as 10 below: - a. That the victim was below 14 years of age - b. That there was a sexual act performed on the victim. - That the offender was a person in authority over the person against whom the offence is $C.$ committed - 15

d. That it was the accused who committed the offence.

### **Evaluation of Evidence**

#### Whether the victim was below 14 years of age

The age of the victim can be proved by production of her birth certificate, the testimony of the parents. However, there are other ways of proving the age such as courts common sense 20 observation of the age of the child. In this case, the victim testified that she was born on the 9<sup>th</sup> October, 2008 making her 12 years at the time of the act. He medical examination report dated 14<sup>th</sup> July, 2021 tendered by PW2 and admitted as PEX2 shows that she was between the apparent age of 10-13 years using the turner method of assessment. This court also looked at the victim and is of the opinion that her apparent age was below the age of 14 years at the time of the 25

# Whether there was a sexual act performed on the victim.

incident and thus ingredient (a) is therefore resolved in affirmative.

Section 129 (7) (a) of the Penal Code Act defines a sexual act to mean penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ or the unlawful use of any object or organ by a person on another's sextual organ. Sexual organ means a vagina or a penis.

The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, sexual intercourse is proved by the victim's own evidence and corroborated by medical evidence or any other cogent evidence. (See Hussein Bassita v Uganda S. C. Criminal Appeal No. 35 of 1995)

Whereas this is the basic standard, the Supreme court in the case of Hussein Bassita v Uganda 35 S. C. Criminal Appeal No. 35 of 1995; observed that,


"Though desirable, it is not a hard and fast rule that the victim's evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt." Emphasis mine.

Proof of penetration is normally established by the victim's evidence and any other cogent $10$ evidence.

In the instant case, there is both the medical evidence and the victim's testimony. For the purpose this indictment, the prosecution is relying on the evidence of the victim herself who testified that the accused did not have sextual intercourse with her but rather slapped her and touched her

- private parts and pushed his hand inside. PW2, a senior medical clinical officer of Awach Health 15 Centre IV who examined her on the 14<sup>th</sup> July found marked remains of semen between the thighs, the vulva looked swollen, and bruised wound on the upper aspect of the vaginal wall which according to him were caused by a blunt object. He also noted that penetration had occurred. - 20 Under the law, a sexual act includes penetration however slight a vagina of any person by a sexual organ or the unlawful use of any object by a person on another person's sexual organ.

In the circumstances there is evidence that there was a sexual act performed on the victim by the accused on the 13<sup>th</sup> July, 2021. The victim knew the accused before the incident, he followed her for some time both as she was going to and while returning from the centre before grabbing her

and dragging her to the bush. The act took place during broad day light leaving no room for a 25 mistaken identity.

I hereby find that a prima facie case has been established by prosecution to warrant putting him on his defence.

30 $\mathrm{Col}\hspace{0.5pt}\mathring{\mathrm{N}}$

Judge.

$\mathsf{S}$

Date: $\partial b / \partial \partial / \partial \partial \partial \phi$

5