Uganda v Onencan (Criminal Session Case 190 of 2023) [2023] UGHC 494 (20 December 2023)

# THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT NEBBI

CRIMINAL SESSION CASE NO. HCT-08-CR-SC-0190 OF 2023

UGANDA...................................

#### **VERSUS**

ONENCAN INNOCENT....................................

**BEFORE:** HON. MR. JUSTICE GEORGE OKELLO 20

#### **JUDGMENT**

## Introduction

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The accused person is indicted with the offence of aggravated defilement, contrary to section 129 (3) (4) (a) of the Penal Code Act Cap 120. It is alleged that during the month of May, 2022 at Puyang West Village in Pakwach District the accused performed sexual act on N. Shallot, a girl aged about 12 years. The accused pleaded not guilty.

## Legal representation

At the hearing the accused was represented by Mr. Pirwoth Michael on 35 State Brief while the State was represented by Mr. Naguyo Emmanuel and Mr. Acwica Samuel, State Attorneys from the Office of the Director of

HhAodu.

$\mathsf{S}$ Public Prosecution. At the close of the Defence, parties addressed court orally. Court is grateful for the submissions.

## The proceedings

During the preliminary hearing conducted pursuant to section 66 of the Trial on Indictments Act the parties agreed on PF 24 which is medical $10$ examination of suspect of sexual assault (PEX1); PF 3A which is medical examination of the victim of sexual assault (PEX 2 (a) and HIV Negative test result slip of the accused (PEX 2 (b). Two assessors were appointed and sworn with the agreement of all parties. The State opened its case 15 and called three witnesses namely, the girl's father, the mother and the girl herself. A voire dire was conducted in respect of the girl. At the close of the prosecution case Court found a prima facie case had been made out and put the accused to his defence and proceeded to explain his rights as at law. The accused opted to make an unsworn statement and did not call 20 any other witness. After the parties' oral submissions, Court summed up the law and the evidence to the assessors. The assessors gave a joint opinion.

## Ingredients of the offence

25 The offence with which the accused person is indicted being aggravated defilement, contrary to section 129 (3) (4) (a) of the Penal Code Act Cap

HUADDW

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- 120 (hereafter, PCA), the prosecution has to prove the following $\mathsf{S}$ ingredients; - $i$ The girl was below the age of 14 at the date of the alleged sexual assault - ii) A sexual act was performed on the girl - $10$ iii) It is the accused who performed the sexual act

### The burden and standard of proof

Given that the accused pleaded not guilty and enjoys a constitutional right of presumption of innocence embedded under article 28 (3) (a) of 15 Constitution of Uganda, 1995, the burden is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. Other than insanity and a few statutory exceptions which are not applicable to the case at hand, the burden of proof never shifts to the Defence. See: Woolmington Vs. Director of Public Prosecutions [1935] A. C 462; Chan

#### $20$ Kau Vs. R [1955] A. C 206; Uganda Vs. Dick Ojok (1992-93) HCB 54.

The Prosecution must, therefore, prove each of the ingredients of the offence listed, beyond reasonable doubt. Proof beyond reasonable doubt, however, does not mean, proof beyond the shadow of doubt. The degree of proof thus need not reach certainty. A court is thus not permitted to consider fanciful possibilities that could deflect the course of justice. What is required, is strong evidence against the accused person that leaves only

Hurodi.

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$\mathsf{S}$ a remote possibility in his favour. Thus if court finds on the evidence that, what a person is accused of, is possible, and not in the least probable, then the standard of proof would have been met. But nothing short of that suffices. See: Miller Vs. Minister of Pensions [1947] All ER 272, at 373-374, Lord Denning.

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The accused person does not assume any burden of proof, a position rooted in section 101 (2) and section 103 of the Evidence Act Cap 6. Thus where there is any doubt in the prosecution case the accused takes the benefit of the doubt. Further, any defence, even if not raised by the accused, but where there is evidence of it, must be availed to the accused person. See: Abdu Ngobi Vs. Uganda, SC. Crim. Appeal No. 10 of 1991; Obwalatum Francis Vs. Uganda, SC Crim. Appeal No. 030 of 2015; Mancini Vs. DPP (1942) AC 1; Didasi Kabengi Vs. Uganda (1978) HCB $216.$ An accused can, therefore, only be convicted on the strength of the prosecution case, and not because of the weakness of the defence. See: Ssekitoleko Vs. Uganda, [1967] EA 531. Therefore, even if an accused person leads no evidence and keeps quiet, the court must still, at the end of the case, ask itself: Is the legal burden discharged? Has the Prosecution proved the guilt of the accused beyond reasonable doubt? In a criminal case, all matters must be strictly proved. The State cannot, for instance, solely rely on concessions made by the accused person. See: FW Crowie

### Vs. R [1961] 1 EA 38 (CAN).

Hhrolu

All items of evidence on record must be considered and evaluated by court. That is, both the prosecution and the defence evidence. Thus in Abdu Ngobi Vs. Uganda, S. C Crim. Appeal No. 10 of 1991, the Supreme Court of Uganda had this to say:

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"Evidence of the prosecution should be examined and weighed against the evidence of the defence so that a final decision is not taken until all the evidence has been considered. The proper approach is to consider the strength and weaknesses of each side, weigh the evidence as a whole, apply the burden of proof as always resting upon the prosecution, and decide whether the defence has raised a reasonable doubt. If the defence has successfully done so, the accused must be acquitted; but if the defence has not raised a doubt that the prosecution case is true and accurate, then the witnesses can be found to have correctly identified the appellant as the person who was at the scene of the incidents as charged."

Evaluation of the evidence

Regarding the ingredient relating to the age of the girl being under 14 at 25 the time of the alleged sexual assault, court's view is that age can be proved in any of the followings ways;

> i) Birth certificate, immunization card, school records, if any

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Hurodu.

- ii) Testimony of the parents of the child - iii) Child's testimony regarding her/his age - $iv$ Medical evidence e.g. dentition - Observation of the child and common sense assessment by court. $v)$

# $10$ See: Uganda Vs. Kagoro Godfrey, H. C Crim. Session Case No. 141 of 2002; Uganda Vs. Fulawak, Crim. Session case No. 85 of 2018.

Furthermore section 88 (2) and (3) of the Children Act Cap 59 offers a useful guide on how age of a child can be determined. Although the section is concerned with determination of age of a child for the purposes of 15 criminal responsibility, I am of the view that the section offers a useful guide where a child is also a victim of an alleged crime. Thus section 88 (2) and (3) of the Children Act provides that, court can determine the age of a child by giving full assessment of all available information, giving due $20$ consideration to official documentation including birth certificate, school records, health records, statement certifying the age from the parent or child, or medical evidence. In my view, one or more of the methods outlined above, could, depending on the circumstances of each case, help in proving age of a child.

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In the instant matter PW2 Fuacan Harriet testified on 8<sup>th</sup> December, 2023 that N. Shallot, the alleged victim of sexual assault is 13 years. PW2 stated

HhAodu.

- $\mathsf{S}$ that she gave birth to the child from Kampala in 2012. The girl testified as PW3 and stated that she was born in 2013. The girl's father Keuber Felix (PW1) stated that his daughter is 13 years old. The medical report vide PF 3A (PEX 2 (a) indicate the age of 12 years as at $1^{st}$ November, 2022. In spite of the contradictions regarding age which court finds minor, court $10$ also observed the child while in chambers during the in-camera proceedings and is in agreement that as in May 2022 (the month of the alleged sexual offence) N. Shallot was well below the age 14. Accordingly and in agreement with the joint opinion of the lady assessors I hold that the girl was below the age of 14 as in May 2022. - 15

As far as the ingredient of sexual act is concerned, sexual act, to begin with, is widely defined in section 129 (7) of the Penal Code Act. For the purposes of the instant case, it is alleged that the sexual act took the form of sexual intercourse. To my mind this comes within the scope of the definition in section 129 (7) of the Penal Code Act. A sexual act thus include penetration of the vagina of any person, however slight, by a penis. In the case of Wepukhulu Nyuguli Vs. Uganda, SC. Crim. Appeal No. 21 of 2001, the Supreme court of Uganda held that penetration however slight suffices to prove sexual intercourse. This was also the position reached by the Court of Appeal in the case of **Adamu Mubiru Vs. Uganda;**

Hursen.

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C. A Crim. Appeal No. 47 of 1997.

- $\mathsf{S}$ Turning to the matter at hand, the pertinent question to be resolved is, how penetration is proved. Courts have held that penetration can be proved either by the victim's evidence, medical evidence, or any other cogent evidence. See: Remigious Kiwanuka Vs. Uganda, SC Crim. Appeal No. 41 of 1995; Uganda Vs. Sunday Herbert, HCT-01-CR-SC- - $10$ $162/2021$ . It is, however not a must that medical evidence be produced to prove a sexual act a position reached in the case of **Hussein Bassita Vs.** Uganda, SC Crim. Appeal No. 35 of 1995. Nevertheless once medical evidence is adduced by the prosecution court will consider it. Court may also consider medical evidence alongside other cogent evidence.

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In the present case, N. Shallot testified that on a date she does not recall but in the month of May, 2022, at 8:00PM while passing by the accused's house (compound) and heading to the home of the accused's mother (nearby) where she used to sleep with other children, the accused was 20 inside his own house. The accused saw N. Shallot passing by and called her. He then sent the girl to buy for him a cigarette from the home of the accused's brother, a one Oweki. It was "sports cigarette". The accused gave the girl shs.200. Oweki used to sell cigarettes from his home and had no shop. After bringing back the cigarettes, the accused held the hands of N. 25 Shallot, removed her clothes and had sexual intercourse with her. She did not shout, because allegedly the accused threatened to kill N. Shallot with a knife. The accused had no knife. N. Shallot had an under pant which the

HUADDAM.

- $\mathsf{S}$ accused removed. The accused also removed his own clothes. The girl saw the accused's penis although it was dark. She was in the house of the accused and the whole incident lasted for 03 minutes. She then moved out. She felt pain in the vagina and thigh. N. Shallot went into the room where there were other girls but did not tell them what had happened. She - $10$ also did not tell the accused's mother about the incident. N. Shallot continued sleeping at the home of the accused's mother thereafter. The incident happened only that night (once) and did not happen again. N. Shallot did not tell her mother what had happened. In July, 2022 N. Shallot travelled to Entebbe to live with her paternal Aunt a one Amondi, 15 to study while helping the Auntie take care of a young son. She then revealed to the Auntie what had happened to her way back in May 2022 while still in Pakwach. The Auntie then relayed the information on phone

to the mother of N. Shallot. The mother asked the Auntie to send the girl back home in Pakwach. On returning in November 2022, N. Shallot was 20 examined from a health facility in Pakwach.

PW2 Fuacan Harriet (mother of N. Shallot) testified that she knows the accused performed sexual intercourse with her daughter in May 2022. She did not find the accused red-handed but it was N. Shallot who told PW2 in November, 2022. N. Shallot did not tell PW2 directly but told her Auntie (from Entebbe). The Auntie then called the parents of N. Shallot on phone and spoke to PW2 in November 2022. The girl was still with the Auntie in

Hussal.

$\mathsf{S}$ November, 2022. N. Shallot returned from Entebbe in November, 2022. The Auntie revealed to PW2 that N. Shallot had narrated that Onencan (the accused) had had sexual intercourse with her. The girl had reportedly told the Auntie that even PW2 (the mother) knew about the incident because PW2 had even taken her to a medical facility over the matter. PW2 $10$ then told the Auntie of N. Shallot that PW2 did not know about the incident. PW2 then asked the Auntie to send N. Shallot back home (Pakwach). Before the girl was sent back, PW2 told the Auntie that, "it is *true because my daughter one time came back complaining of pain and I* took her to health facility." According to PW2 when the Auntie sent back 15 the girl, PW2 spoke to her and she revealed what happened. On the day the girl reached home at 6:00PM PW2 took her to Dr. Ajal who advised PW2 to report to Government Authorities. The matter was then reported to Pakwach Police Station. N. Shallot was examined at a Health Centre. Police of Alwi Sub County then arrested the accused. PW2 conceded, it 20 took her six months from May to November, 2022 to hear that her daughter had been defiled. She recalled that when the girl was treated in May 2022 she had pain in the thigh but the girl did not tell the mother anything, and the pain was coming by itself but the girl was moving with difficulty. PW2 had asked her daughter (in May 2022) about the cause of 25 the pain in vain. She then suspected a thigh sprain. PW2 stated that, at the time (May 2022), N. Shallot used to sleep at the home of the accused's mother. The girl did not report the incident to the fellow girls whom she

HUADRIN

$\mathsf{S}$ used to share the house with. She also did not report to the accused's mother.

PW1 Keuber Felix (the father of N. Shallot) testified that the accused is a cousin to PW1 (son of PW1's Auntie). He stated that the accused was a $10$ married man but at the time of his arrest he was living with one wife who left after his arrest. PW1 then detailed what N. Shallot told him, that is, that the accused had had sexual intercourse with her. According to PW1, the Doctor to whom the girl's mother took the girl for medical examination, confirmed the fact of sexual intercourse. PW1 claims he had seen the girl 15 walk with difficulty but she refused to tell him the cause. The girl later told her Auntie what happened. The girl returned in November 2022 and was taken for examination at Pakwach Health Centre IV. Whereas it was alleged that the sexual assault happened in May 2022, PW1 learnt about it in November 2022. The Auntie of the girl (a sister to PW1) called PW1 in $20$ November 2022 while still living with N. Shallot, complaining about her misbehavior that the girl was playing with the Auntie's kids in a sexual manner. She could play with the penis of the kid of the Auntie when bathing the kid. The Auntie asked PW1 about where he thought the girl had learnt such bad behavior from. PW1 requested the Auntie to return 25 the girl home. The girl returned and was examined at Pakwach Health Centre IV. In cross examination, PW1 stated that, in May 2022, when he

Hudolin.

$\mathsf{S}$ saw the girl walking with difficulty, the girl was treated from Alwi Health Centre III and she healed.

In his Defence the accused (DW1) denied having had sexual intercourse with N. Shallot. He denied ever sending her to buy for him cigarettes $10$ although he admitted being a smoker and that his brother sells cigarettes. He said he used to send only his brother's children to buy cigarettes from their father (a brother to DW1). He also claimed that he had had a grudge with the brother of the complainant (PW1) who had threatened to "eat" the accused. Allegedly the brother said the 'meat' of the accused would be "pasted" and eaten. DW1 also claimed the threat that he would be "eaten" was reported to elders who convened meetings which never happened because the brother of PW1 dodged the meetings.

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In my analysis, I do note that whereas the alleged victim of sexual assault $20$ spoke about what she says befell her, being a child of tender years, that is, being of the age or apparent age of below 14, the child's evidence requires corroboration under section 40 (3) of the Trial on Indictments Act. In this case, the most reliable corroborative evidence, in my view, is not what the parents claim they learnt from Auntie Amondi. That claim 25 becomes hearsay as Amondi did not testify. Of course the claim by the victim was later shared by her telling the parents, on her return from Entebbe. However still, that claim needed independent corroborating

Hussolu.

- $\mathsf{S}$ evidence. The claim that the girl was treated for difficulty in walking in May 2022, also needed supportive evidence from Alwi Health Centre III where PW1 claims the girl was treated from and healed. The medical experts from that health facility might perhaps have shed more light on the treatment they administered to the girl. That evidence unfortunately is - $10$ lacking. Secondly, court notes the evidence of medical examination at Pakwach Health Centre IV which was done on 1<sup>st</sup> November, 2022 on the girl (on returning from Entebbe). That evidence is unhelpful because it does not link the results to the alleged sexual assault of May 2022. Court notes that the medical evidence vide PEX $2$ (a) which is PF 3A merely 15 claims "*raptured hymen*", when describing the condition of the genitals. It - says nothing more. This is too cryptic as it does not state the age of the raptured hymen, whether it was recent or old. In the further space within the exhibit (PF3A), indicating the probable cause of the injury, it is written thus "penetrating object". Again court finds this inconclusive as the medical notes does not clearly state whether a sharp or blunt object 20 penetrated the vagina. As noted and with great respect, the medical examination of November 2022 could not give a clue or build a nexus with the alleged sexual assault. Thus the medical evidence of November 2022 is not corroborative of the testimony N. Shallot. I note that the date of the alleged examination was 1st November, 2022 yet PW1 and PW2 claim 25 Auntie Amondi informed them about the incident in November 2022 and sent the girl back to Pakwach that very month. So the issue that arises is,

Herada.

$\overline{5}$ when did N. Shallot return from Enterore given that she is shown to have been examined on 1<sup>st</sup> November, 2022? Court finds it difficult, from the material on record, to reconcile the date of the events. Could the medical document have been backdated or could the alleged victim have returned much earlier, say in October 2022 and was, therefore, examined on 1st $10$ November, 2022? It remains a puzzle. Elsewhere PW2 contradicted herself by stating that the family used to live in Kampala and that all the family members only returned to Pakwach in November 2022, meaning as of May 2022 N. Shallot was not in Pakwach with her parents but in Kampala with the rest of the family members. However, on realizing that she had 15 materially contradicted herself, PW2 retracted and claimed, indeed, the family returned to Pakwach in May, 2022. No specific return date was mentioned, just as none was mentioned regarding the alleged sexual assault. PW2 also stated that she left her marital home on the arrest of the accused person as she was being blamed for his arrest. She did not 20 expound on this, for example, she has not shown that the accused had a hand in her being blamed or that the accused person attempted to interfere with the due process of the law. PW2 also stated that PW1 (her then husband/ Felix Keuber) even beat her for arresting the accused on the basis of the allegation of sexual assault of their daughter. Does this, 25 therefore, mean some form of pressure was made to bear on PW1 (father of the girl) hence the testimony he gave against the accused before court? Does PW1 honestly believe in the allegations? Could the accused have been

Hhrolm

- $\overline{5}$ framed? These have not explained by the Prosecution witnesses. In the circumstances, given the nature of evidence adduced by PW1 and PW2 I do not find them corroborative of any sexual intercourse alleged by the girl (PW3). The girl's refusal to disclose to her mother, or fellow girls whom she used to share the same house with and the failure to disclose to the mother - $10$ of the accused, is very telling. The alleged victim admitted that she continued sleeping at the home of the accused's mother after the alleged sexual ordeal. I find the conduct of the child inconsistent with that of a real victim of a sexual assault. Her non withdrawal from the vicinity of the accused's home, leaves more questions than answers. The accused's home and the mother's house, evidence show, were proximate. By the alleged 15 victim continuing to go to, and sleeping at the place where she allegedly suffered sexual assault, in addition to being allegedly threatened with death by the accused (in case of disclosure), with respect, is inconsistent with the theory chronicled surrounding the alleged sexual ordeal. In any $20$ case, as noted, the evidence of the child needed corroboration before court could safely rely on it. The child also testified that her Auntie did not blame her for anything, meaning the alleged sexual playfulness with the penis of the Auntie's son, needed corroboration by the Auntie Amondi. Having allegedly disclosed her sexual ordeal to the Auntie, the Auntie was a - 25

Hadoly.

relevant witness for the Prosecution but she was not called to testify. In

the upshot, Court does not believe the child's version of events and yet

other independent corroboration is lacking. In light of my analysis, I find

$\mathsf{S}$ that the fact of sexual intercourse has not been proved beyond reasonable doubt. I agree with the assessors in that regard, although they reached the same conclusion after first agreeing there was penetration but ended alluding to contradictory pieces of evidence and concluded that penetration was not proved.

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Regarding the alleged participation of the accused I find it not proved. It is also a little puzzling that a sexual encounter could have happened in just 03 minutes from the time the girl and the accused allegedly interacted. It was conceded, the accused had a spouse at the material time. It is thus $15$ not demonstrated how the accused was able to allegedly use his house to sexually assault the girl, in the circumstances. The other children whom N. Shallot used to share a room with, remained oblivious of the alleged incident, just as their grandmother (mother of the accused person) and yet the victim continued spending her nights there normally thereafter which $20$ is inconsistent with the conduct of the victim of sexual assault. I note the accused's defence of denial. Although he conceded that he smokes and would occasionally send his own brother's children (room-mates of N. Shallot) to buy for him cigarettes from his own brother's home, the concession does not mean the fact of sexual assault was proved. The 25 concession shows the accused's honesty in making concessions where it is true. The State counsel, with respect, expected the accused to deny everything, including the fact of being a smoker. The accused's acceptance,

HLADQ.

$\mathsf{S}$ in the circumstances, cannot be used against him to conclude that, ipso facto, he must have defiled the girl- after all he sent her for cigarettes, and has admitted being a smoker. Such a concession would defeat logic. Crucially the accused's brother was not called to testify and corroborate the version of N. Shallot that she was sold some cigarettes by the vendor $10$ for onward transmission to a customer- the accused person herein. It is also not clear how many sticks of "sports" cigarettes, as the child describes it, the shs. 200 could buy as at May 2022. The child claims she bought cigarettes for the accused worth shs. 200. In the circumstances I am

unable to use the accused's concessions which is honourable thing to do,

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against the accused person.

In conclusion, I find that the prosecution has failed to prove the ingredients of sexual intercourse and participation of the accused, beyond reasonable doubt. I fully agree with the assessors' opinion in that regard. Therefore, I find the accused not guilty of aggravated defilement contrary to section 129 (3) (4) (a) of the Penal Code Act and accordingly acquit him. The accused Onencan Innocent shall be released from Prison forthwith unless held on other lawful charge.

25 Dated, signed and delivered at Nebbi this 20<sup>th</sup> December, 2023 Hursen. 20112/2023 George Okello JUDGE HIGH COURT

## Judgment read in Court $\mathsf{S}$ 3: 25 PM 20<sup>th</sup> December, 2023

## **Attendance**

$10$ Accused person in Court

Mr. Pirwoth Michael, on State Brief, for the accused

Mr. Acwica Samuel, and Mr. Naguyo Emmanuel, State Attorneys, for the Prosecution

Ms. Malen Ruth and Ms. Cwinyaai Grace, Assessors

$15$ Ms. Lilian Okech, Court Clerk/ Alur Interpreter

## HUADON 20/12/2023

George Okello **JUDGE HIGH COURT**