Uganda v Onekalit George (Criminal Session Case No. 376 GF 1995) [1996] UGHC 73 (8 August 1996)

Full Case Text

## SHE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT SESSION HOLDEN AT GULU

CRIMINAL SESSION CASE NO. 376 GF 1995

UGANDA PROSECUTOR - VERSUS -

ONEKALIT GEORGE ............. . ACCUSED

## BEFORE: THE HONOURABLE Wf . JUSTICE G,M. OKELLO

## R U L IEN. G

The accused, Onekalit George was indicted on a charge of Defilement contrary to section 123 (1) of the Penal Code Act. The particulars of the offence alleged that Onekalit George on or about the 25th day of June, 1994 at Pece Pawel Village, Gulu Municipality, Gulu District had unlawful sexual intercourse with one Anena Sabella a girl under the age of 18 years.

When the charge was put to him, the accused pleaded not guilty thus setting in issue all the essential elements in that offences That meant that each and every one of the essential elements in the offence charged had to be proved beyond reasonable doubt to secure a conviction. The law places the burden of proving the essential elements in the offence charged on the prosecution. The essential elements requiring proof beyond reasonable doubt in the offence of defilement are:

- 1) that the victim was at the alleged commission of the offence aged under 18 years. - 2) that there was unlawful sexual intercourse with the victim - 3) that it was the accused who had the unlawful sexual intercourse with the victim.

At the close of the case for the prosecution, Counsel for the accused submitted on a no case to answer. He argued that the evidence adduced by the prosecution did not make out a prima facie case against the accused. For that reason he prayed that court should so find and order the acquittal of the accused.

Counsel for the state, however contended that a prima facie case had been made out against the accused to warrant putting him on his defence. The learned Resident State Attorney pointed out that a prima facie case did not mean proof beyond reasonable doubt. That at that stage, court was not to decide finally whether the evidence adduced was worthy of credit or not. But that decision on the credibility of evidence was properly made when the defence case had been given. According to the learned Counsel, the evidence adduced by the prosecution witnesses reached that level. So he prayed that court finds that a prima facie case was made out against the accused and to put him on his defence.

Having heard the above arguments from the learned Counsels, I should like to agree with counsel for the defence as to his exposition of the law regarding what amounts to a prima facie case. It is that a prima facie case must mean one where a reasonable tribunal property directing its mind to the law and evidence could convict if no explanation is offered by the defence. That test has been secepted and followed. In RV Shabudin Murali MB 38/63 it was held that a submission of no case to answer could be upheld:

- a) where there has been no evidence to prove an essential element in the offence alleged. - b) where the prosecution evidence has been so discredited in cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.

I fully agree that while considering the evidence before it, court was not to decide finally on the credibility of the witnesses

at this stage. That was to wait until when the evidence of the defence was given. Yet in doing so, court had to have a "broad view tf the relevant law and must not lose sight of the fact that a mere scintilla of evidence could not make up a prima facie case'4'

Th the instant case, the evidence "before court, the evidence of identification "by the victim is quite weak. It is what amounts to a mere scintilla of evidence. The evidence indicated that the incident took place at night at about 7.30 p..m, when it was already dark. According to the victim she had not known the assailant "before and there was no evidence of the existence of any form of light during the alleged defilement to afford the victim opportunity to observe her assailant. That being evidence of identification by a single witness required corroboration which is not at all available.. No reasonable tribunal reflecting on the law and evidence can properly convict on the evidence even if the defence offered no explanation. For the above reasons, I agree with Mr. Olaa that the prosecution have failed to establish a prima facie case against the accused. He is therefore acquitted of the offence with which charged under section 71 (l) of the T. I. B. He is ordered to be set free forth with unless being hold on some other lawful ground.

G. M. OKELLO Judge 8/08/1996

Ruling delivered in the presence of:

Accused His dounsel Olaa \* j Mr. Kabali for State Mr. Oyaro Court Clerk Assessors: J. P. 0twoda

V. Uma

G. M. OKELLO Judge 8/08/1996