Uganda v Oribariho (Criminal Session Case 64 of 1993) [1994] UGHC 104 (25 May 1994)

Full Case Text

## TUR DREADHIA AL ARTINE

IN THE HIGH COURT OF UGANDA AT KAMPALA

## HOLDEN AT KAMPALA

CRIMINAL SESSION CASE NO. 64/93

$\ldots$ $\cdot$ PROSECUT UGANDA...

## VERSUS

.. ACCUSED ORIEA HILO JED . . . . . . . . . . . . . . . . . . .

BEFORE: THE HONOURABLE MR. JUSTICE G. TINYINONDU

## JUDGMENT

The accused was indicted on two counts of defilement of two girls each under 18 years age. The particulars of the first count were that on $2/1/1992$ at Nyakabungc village, in Kabale District the accused unlawfully had sexual intercourse with Niwagaba Hope a girl under the age of 18 years. In the second count the accused was alleged to have unlawfully had sexual mill intercourse with Magnushaba Judith, a girl under the age of 18 years at Myakabungo village, in Kabale District, on 2/1/19

The prosecution called five witnesses. The accused gave sworn evidence on his own behalf. $\lambda_1 = \lambda_2 = 2$

PW1, Dr. Isaiah Biryabarema; testified that on $5/1/92$ he was requested by Kabale Police Station (per police form 3) to examine Miwagaba Hope. ne made these findings:

- (a) the child was aged 5 years; the state of the child was aged 5 years; - the hymen was raptured and there was a fresh wound $(b)$ on the entroitus:

(c) the surrounding parts of the vagina were inflamed; (d) there were no other injuries on the rest of the body (e) the child was incapable of putting up resistance; $(f)$ No V. D test was done.

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*k* uie'dical reports, Exhibit P1, was receiver} by consent. The court 4 whs •• ick ' inquire • i th • doctor\* wh .th r 1 w-' profession al (expert) evidence wichir th. -a..-bit c • t •... ■. The doctor owner . :o f 11 11 . polio '■■■. "s : . ' 'curt . ill Indore these so-called findings as rot findings at all.

The witness further testified that on the same day he examined Nkamushaba Judith again on request by the police. He found -

(a) the child was 7 years old;

I (b) the hymen was raptured;

(d) v *ic* priva- v, j ort . force: */*

(e) No other injuries;

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1 (f) the child is too young to offer ivSistance;

(g) No test for VP.

During corss-examination the doctor stated that by the word, ''recent" he meant with 24 hours ard clarified that " iftarnation" can be cuased by many things.

Niwagaba Hope was PW2. A voire dire was first conducted. I Wormed the view fhat she was intelligent enough to give an unsworn Shu see?'.\*.-: . d the ? o u.L of ar. oath after a lot of questions.

She stated that she was 8 years ol •, ard goc.; to school where she is in Primary h •>? <. knv. th. ;■/•;■) had [•■•arr.nl](%25e2%2580%25a2%25e2%2596%25a0%25e2%2580%25a2arr.nl) knowledge of'her when he found her on a hill picking firewood. It was about midday when this happened. She was with her elder sister, ITkamushaba Jude. They were collecting firewood in a thicket of blackwattle when the accused came and asked them to

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collect brooms for She further stated that the accused her tack d her hands horizontally go\* on top of her and without telling her what he was going itjcfidb pain. to her, unzipped his black trousers and put his penis in her vagina. That she felt a'lot of pain and cried because of the

left the scene and stood some little distance away to wait for her w That the accused got off her and went for her sister. She saw the accused have carnal knowledge of her sister. The witness,

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Th further 11 court that she then left and reached at about 1.00 pm. found her mother to whom she related the her mother called her uncle, Wilberforce by merely observing round, examined her by inserting his fingers in her private parts went that the following day she was taken to a doctor who, this time That her uncle also put his fingers in her privatepacts stand up, undressed, her and examined her ord0al. That without inserting their fingers in her private parts. She stated thereupon I 1 i i Nkeija,' who made iher |i;

Fkamushaba. The court was of the opinion that she knew th difference between telling the truth and lies and was suffijeien^ ly intelligent to make ar unsworn statement. Another voire dire was conducted in respect of PWJ?iJudith

She stated that she was told by her mother that she was gger 18 years (This is hardly surprising because her younger sister-,:I PW2, stated that she was 8 years old and in primary 3 while the witness was in primary one; and their mother did not know neighbours with the accused. That they live on the foot of Rushekyera hill while the accused live atop it. That they live her own age. The witness further stated that they are village

a calling distance. That she and her sister had gone to pick firewood in a blackwattle tree plantation at Omuruhanga where the accused found them and asked them to collect sweeping brooms for his sister. That they tried to refuse whereupon the accused threatened to burn them with match fire. That they obliged following these threats. When they handed in the brooms the accused told them to spread them on the ground and lie down on them. That when they refused he again forced them to

The witness then related how the accused started with her younger sister. That she did not see clearly how he had carnal knowledge of her but that he lay her down and lay on top of her. That he pulled his trousers doen his legs, pulled her sister's dress up her body, got hold of his penis and put it into her sister's vagina. That while the accused did this the witress stood by, crying. That when she tried to make an alarm the accused got off her sister, came for her, lay on her on the ground and had carnal knowledge of her by putting his penis in her vagina. That while he took a short time on her sister, the accused took a longer time on her and that she felt a lot of pain. That this took place in broad daylight with the sun overhead.

The witness stated that after they were defiled they went home and told their mother, Beatrice. That their mother called the Resistance Committee Chairman, Bamugaya, who directed that the victims be cleaned up and be taker to the Gomborora head-That their private parts were washed and the victims quarters. were taken to the Gomborora headquarters where they were examined by a doctor who examined the witness and PW2 by inserting his fingers in their private parts and wrote down notes.

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PW4, Jane Nyinabugari, testified that she was the mother of the two victims. She did not know her age. But she had eleven children - six boys and five girls. She knew the accused as the person who ravished her girls - PW2 and PW3 on a date and year she did not know but that it could have been three years ago. That they were village neighbours with the accused and relatives. That he ravished them in a tree plant# ation where they were collecting firewood. That she was then at home when the girls came back crying at about the time school children go for lunch. She gave them food but they failed to eat and continued crying. When she asked them why they were crying they told her that the accused had ravished them. That she observed them and found them covered with blood and their private parts swollen. That she then took them to an RC official called Bamugaya who in turn took them to the police post where they directed him to go and arrest the accused. That thence the girls were taken by their brother to Kabale.

During cross-examination the witness testified that she examined her daughters in the kitchen. Bikaja did the same in the same place. She testified that she observed them by making them lie down with their legs astride and did not insert her fingers in their private parts. She also stated that they reported to her that it was PW2 who was ravished first.

The prosecution called PW5, Enock Mdyomugenyi, DIP, to testify to a charge and cautioned statement which the learned Resident State Attorney called a confession. Learned Counsel for the accused objected to it as not being a confession and. in any case, as being inadmissible. I ruled that the document was a confession and directed a trial within a trial to be held Why did I rule that the statement be deemed a confession?

In the statement the accused is alleged to have stated as follows:

"After one mile I saw two young girls collecting firewood. I went there and threatened them that the trees were mine and the trees were not for my parents. After that I managed to grab one of them and put her down. Due to threat and fear not to be beaten by me both consented to have sexual intercourse with them. I only had sexual intercourse with one called Judith only. The one who is older....."

What is a confession? A confession is not merely a formal admission of guilt taken down in writting and signed by the accused but any

> "admission of his guilt or of any fact which may tend to the proof of it to any person other than a judge or magistrate seized of the charge against him."

See: ARCHBOLD (33rd Ed.) p.407 and ONYANGO OTOLITO VS. R. (1959) EA 966. In view of the foregoing I ruled the document to be a confession at least in as far as count No.2 of the charge is concerned and was made before an Inspector of Police: See S.24, Uganda Evidence Act.

At the same time of raising the objection that the statement was not a confession Learned Counsel for the accused raised another objection that the statement was made in circumstances that made it inadmissible. I directed to trial within a trial. At the end of which I ruled that the document was inadmissible. I promised to give my reasons in the main body of the judgment. I do so now.

PW1 DIP Ndyomugenyi testified that on $4/1/92$ accused was brought to his office at about midday. That the accused was physically and mentally normal. Then the witness told the accused to sit on a chair and the escort of the accused was asked to go out. That the accused then started voluntarily to tell the witness what had happened. After which the witness

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tola the accused neither to hide any information nor to fear since the two were Bakiga speaking the same language.

The witness further testified that he read the charge to the accused and cautioned him. That the accused then made a statement which the witness reduced into writing. That after the statement the witness read back the contents to the accused That the accused is illiterate. That after reading the statement back the accused confirmed it and put down his name by signing. That the accused was taken back to the cells.

During cross-examination the witness testified that when he first saw the accused the accused was in the cells of the Kabale police Station. That the policeman from Kashambya police post was the one who identified the accused to him. Later the witness change? his story to say that the said policeman had merely told the witness that he had brought a suspect called Abdu but did not infact identify him.

The witness stated that at that time he already had the file about the case. That he saw the accused in their office before perusing the file but after the Kashambya policeman had That the file was given to him by an O. C. of CID whose left. name he did not recollect. Then the witness plunged into answers in the negative. That he did not know that the accused was made to sweep the compound. That he did not see the accused being assaulted by six policemen as he swept. That he did not tell the accused that if he did not admit the offence the witness would kill him. That he did not burn a black polythene bag and drip the hot liquid on the accused's right leg. That he did not induce or force the statement nor its signature without reading it back to the accused.

The accused gave evidence. he was in P4 at Kitunga Primary School and he first saw th' aforesaid Fdyomugenyi on 4/1/92 at Kabale Police Station at witness when the latter was being assaulted by six policemen. him he sustained several injuries, scars of which he exhibited in That they were using cypres tree branches from a nearby hedge. Before the assault they asked the witness about the sexual and threatened to cut the witnesse's testicles. Upon which the cried. That he was in pain for one week. That as a result accused got terrified, Fdyomugenyi then, offered the witness drip on the witnesse's right leg. He felt a lot of pain anA sleeping the police compound. That Ndyomugenyi talked to the about 8.00 in the morning. That Myomugenyi found the accused names to him. That that is when Udainugenyi came with a poly-Ndyomugenyi had never taken the witness to any office, greeted court. After burning the witness Udyomugenyi picked a parga He testified, inter alia, that in Kukiga an^ done as he claimed. The witness identified |'his back, and Ndyomugenyi burnt the bag and lot the hot liquid papers to sign without being told of its contents. That ene bag,. The six police got hold of the witness lay him on i| H|| intercourse he had had with two girls without disclosing their

his signatures on the document.

the witness testified that he was about 5oOO pm< while he was crossing a small valley from his brothers of the of his mother and sister. That he did not go to Mparo that day That he in fact had father at home for the greater part of that day. post from where a policemen brought was arrested by three was not arrested while in the company stayed with his Mik his father defiled girls. That he died. That he was taken to Kashambya police home to Omukatojo trading centre. That he During cross-examination arrested on 2/1/92 at abale police station

That on the day he was brought he did not speak to Ndyomugenyi1, That he never toW NdyornWgenyi his village names and the names of igned while standing. his sisters before he was made badly beaten he did net recollect being taken to Kabale hospital to sign the statement. That he They spoke the following day of the torture. That he was so

DIP Ndyomagenyi toln lie him the accused at Kabale police Later in his evidence he asked court to be allowed to change and be recorded as having stated that that policemen did not identify the accused to him containing such stigma and having been repudiated in court by the compound and later by six together with Ndyomugenyi made to sign the statement<. . Such evidence was not called. jlicemen from Kashambya identified, to still in the compound and later the accused must be corroborated by other independent evidence to this court. He told that the He offered no explanation for this change of mind\* Evidence arrest he was in primary school. I do not know in what class Hdyomugenyi would grace pupils with literacy. Ndyomugenyi ' ailso II' told the lie that as illiterate. The accused testified that before his in material respect TIPMOI VS. UG: (1967) LA 84 P The policeman | who escorted the accused into Fdyomugenyi's office was not called, ,J-'his was absolutely necessary to counter the accused's'll^ allegations that he was first tortured by the six policemen' inl; ii:''

A confession is admissible if made voluntarily without Ndyomugenyi telling the accused that the accused need not hide anything or fear regarding the matter of defilement since the accused m violence, force, threat, inducement or promise calculated to cause on untrue confession to be made. What we have here and Fdyomugenyi spoke Rukiga and were Bakiga both In this court's view this amounted to an inducement given the fact that the accused came under the escort of another policeman from Kashanbya and was within the awesome walls of another (Kabale) police Station. In determining the admissiblity of a confession, the state of mina of an accused is of paramount importance. See Sections 25 and 26 of the Uganda Evidence Act. For the reasons above enumerated the alleged confession was held to be inadmissible.

The defence opened its case and called the accused alone He testified that he was 19 years old and that before te was arrested he was studying at Kitunga Primary School that he knew Hope and Judith, the alleged victims, as villagemates. That on $2/1/92$ the witness stayed at home with his father, the late Ndyanabangyi cleaning the compound. That that day he did not see either of the girls. That he did not recollect the date of his arrest. That he was arrested by the brothers of these girls as he was going to Katojo trading centre. That he was not informed why he was arrested. That the captors took the witness to Kashambya police post where the policemen set upon beating him. That the policemen showed him to children -Wliot and Rurantu - and asked him if he knew them. He replied he did not. That these children were girls. He further testified that it was because of these that he was now in court and that he had in fact seen them during the hearing. He also testified that in court he had heard Elict being referred to

The accused further testified that while he was at Kashambya police post he was told that he had raped these girls but that he had denied. That he stayed in Kashambya police post cells for two nights before he was brought to Kabale police station

as Judith Mkamushaba while Miwagaba was referred to as Rurantu.

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on a date he dfd not remember. That at Kabale police station and late told to sweep the compound. that while he was sweeping six policemen witness he knew them. re- i asked if he knew anything further about the gi replied that he did not the police mem continued beating him. girls were brought and thfejhj The witness admitted !'l they-; ; he was briefly put in the cells started beating him. Then the two He ••■.as

*a* u was Niwagaba H© stated that he did not know why he was arrest d He did not go scious by the beating police station and only recra&jb id. consciousness in The witness .stated that Pw5 gave him t the of the defence case and the: e in the whole case. while the witness was being taken to the hospital. He stated he was rendered uncon Luring cross-examination the witness testified that one of the girls wqs Rurantu who, in court, was called Judith Kamushab He denied that in his evdierce-in-chief he had said that Rurant to court

Learned Counsel for the accused informed the court that til) did rot intend to make any subwas however not clarified evidence was very clear and he mission. The learned Resident State Attorney, however, made hi submissions. What was ''clear"

related t e the Henal Nil Code Act, as being ingredients of the offence as provided for in section Mr. Murumba, the leanred Resident State Attorney 123(1)' of

- the age of the victim being below 18 years - (b) taken plac e sexual intercourse by the accused must have

Learned Counsel submitted that on the first issue RW1 ' evidence, common knowledge that in this area children molasse

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3 and 1 are normally of tender years and the physical appearance of the victims in court satisfied the first ingredient.

On the second ingredient learned Counsel reviewed the evidence of PW2 PWJ and Pw'4, and that of the accused. He submitted the evidence of PW2 and PW3 was corroborated by that of PW4 and Pw1. He further submitted the evidence of the accused was so riddled with cuntr'-•\* i c bions that it boiled down to mere lies and that the accused had no defence to this crime. Learned Counsel prayed for a finding of guilty and conviction accordingly.

This court directed the lady and gentleman assessors on the essential elements of the offence as provided for in section 1230) of the Penal Code Act. They are-

- (a) the victim must be below 18 years of age; - (b) unlawful sexual intercourse by the accused must - have taken place.

I also directed the assessors and reminded myself of the burden of proof in criminal cases. It is on the prosecution throughout. The prosecution must prove every ingredient of the offence beyond reasonable dOubt. The prosecution must negative every possible defence whether directly or indirectly raised by the accused or from the evidence. If after consideration of the whole evidence any reasonable dOubt arises, it must be resolved in the accused's favour. The 'accused can only be convicted on the strenght of the prosecution case but not on the weakness of his defence. See WOQLBAIHGTOF VS. DPP (1933) AC 462; REP. VS. ACHIETU (1934) EACA 166.

The first ingredient of the offence is normally proved by a birth certificate with some identification or by someone who knows the girl.

See R. Vs. Cox (1898) I QBD 179. In the present case the evidence of PW4, their mother, revealed the parents to be The court. illiterate. She herself could not gues her age. therefore, resorted to its observation of the physical appearance of the victims and their own evidence, Pw2, the youngem sister, stated that she went to school at Kantare Primary sch where she was in Frimary three. The elder sister, PW3, stated that she also went to the same school and was in primary one. The physical appearance of each of the victims left no doubt in my mind that each of them was under 10 years and certainly under 18 years. I find the first ingredient proved beyond reasonable doubt.

In order to establish the second essential of the offemed the legal burden is discharged when the prosecution adduces evidence of "th slightest penetration .. and it is not necess ary to prove that the hymen was rapture": See ARCHBOLD'S "CRIMINAL PLEADINGS EVIDENCE AND PRACTICE" (38th Ed.) para graph 2878. According to the evidence of PW2 -

> "He (the accused) got atop of me He unzipped his tro He put his penis in my vagina. I felt pain."

PW4's evidence was that when her girls came crying and failed to eat she asked them why they were crying. The replied that they had been ravished. She then took them in the kitchen an observed their private parts and found them covered with blob and they were swollen. I find PW4's evidence corroborative of $P_{ii}$ 2's evidence.

On the evidence of PW4 this court is satisfied that unlawful sexual intercourse took place with PW2. For her part PW3 stated that when the accused laid her on the ground he gold hold of his penis and inserted it on her vagina. She felt pain.

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PW4's evidence was similar in all respects to that in rega to Pw2fs case Pw4's evidence corroborated that of pvv'3-

Again this court finds that it has been proved beyond reasonable doubt that sexual intercourse was experienced by the witness, PvVJ. A word needs to be said of pwl ' s evidence.

Pw1 ' s evidence is untruthful. The victims were defiled on 2/1/92. He examined them on 5/zl/92. During cross-examination he testified, that by ♦•recently" inflamed he meant within a range of 24 hours. Clearly there had been a lapse of over 48 hours and his examination results were\* either simply filled .on; the -form without any examination or they referred, to another patient. In this court's view this is a grave contradiction which required reconcilation or an explanation. There was none

The doctor also alleged to have observed that the hymen in the two girls was missing. He did not state when they could have been lost. This again renders his evidence unreliable. Be that as it may the breakage of the hymen need not be proved in defilement cases. All that is required is evidence of ''the slightest penetration" to which I will revert by and by.

It is trite law that while medical evidence and opinion are of great help, courts are not bound by such evidence. Courts may act on other available evidence to come to any conclusion. See ELLIS VS. B. (1963) E. I have therefore arrived at the above decisions without reliance being placed on pvrTs evidence.

Thfe next issue for consideration is whether the sexual intercourse experienced by Pi/72 and PWJ was prepetrated by the accused. Here I directed the assessors and reminded myself of the requirement of corroboration of a child's evidence. In

sexual offences and in dealing with the evidence of young persons a conviction is unsafe if certain precaustions are not taken into account. In TUTU VS. R. (1934) I EACA 183 the Court of appeal stated:-

> "Accomplices and children require corroboration because their evidence is unreliable and although this unreliability may spring from different reasons the reasoning which logically renders one accomplice unable to corroborate another obtains equally between accomplice and child.'

In R. Vs. BASKE Corroboration must implicate the accused. VILLE (1916) 2KB 658 it was stated:

> We hold the view that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words it must be evidence which implicates him, that is, which confirms in some material particular, not only the evidence that the crime has been committed, but also that the person committed it."

Can it be the law that in no circumstance should a court convict unless the evidence of a young person has been corroborated? The relevant statutes are the Oaths Act and the TID. Section $38(3)$ of the PID reads:

> "3 Where in any proceedings any child of tender !!! years called as a witness does not in the opinion of the court, unaerstand the nature of an oath. his evidence may be received, though not given on oath, if, in the opinion of the court, he is possessed of sufficient intelligence to justify the reception of the evidence, and understand the duty of speaking the truth.

Provided that where evidence admitted by virtue of this subsection is given on behalf of the prosecution, the accused shall not be liable to be convicted unless such evidence is corroborated by some other material eviaence in support thereof implicating him." (Emphasis mine)

It is my considered view that the provisions of the prociso are permissive and not mandatory. If the court warns itself of the requirement of corroboration it can still convict on the uncompo borated evidence of a child if that evidence appears truthful and the possibility of any error has been excluded by the

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circumstances of the case. This was so stated in CHILLA VS. R. $(1967)$ EA 722.

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Allied to this rule is an equally very important consideration which is $-$

> "It is true, as a general rule, that evidence which itself requires corroboration cannot provide compoboration for other evidence also requiring corroboration

See MORRIS "EVIDENCE IN EAST AFRICA page 174 and the cases In other words PW3's evidence here cannot corroborate quoted. PW2's evidence.

I will now proceed to apply these principles to the evidence of PW2 and PW3. After a voire dire in each case the court formed the view that although the victims, with a lot of questioning, understood the nature of an oath and were possessed of sufficient intelligence. The court decided they each make unsworn statements. Each witness gave a graphic description of the events at the scene of the crime. They each knew the accused as a neighbour in the village. The accused admitted in court that he also knew both. The two victims described, in agreement, the time the incident took place as about midday. They described, in agreement, how the accused assigned them the task of collecting sweeping brooms for his sister. They were at one in describing the scene as a thicket of black wattle. They were in agreement as to the turns the accused had sexual They gave similar evidence that intercourse with each of them. they were ravished each within view of the other. The only two flaws in their statements were these: Pw3 stated that when they indicated they would not gather the brooms the accused threatened to burn them with match fire and that before he had sexual intercourse with them the accused required them to spread the brooms they had collected on the ground. Otherwise they

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told the same story about when they got home crying. Pw4 supported their story that they arrived home crying at about lunch time and when they continued crying and failed to eat she asked them what the matter was. They told her that the accused had raviabled them.

The two flaws I have pointed out above are minor. Them were omitted by PW2 and mentioned by PW3. In either case the omission or mention was not intended to mislead this court. Nor can they be viewed as deliberate lies. Given the lapse of time, the tender age of these girls and their humble background which cannot, with respect, inspire intellectual exertion, these omissions of mentions may be ignored without any miscampiage of justice having been committed. I am of the considered view that the statements each of PW2 and PW3 were truthfull independent of the other. I did not believed one because it was corroborated by the other. $P_{\text{W4}}$ 's evidence on the other h and corroborated Tw2's and FW3's evidence.

In his sworn evidence the accused testified that he the material day at his home with his late father cleaning the compound. On that day he neither saw nor ravished any of the two girls. Further in his evidence the accused stated that he was arrested at about 3.00 pm. In his evidence in a trial within a trial he testified that he was arrested at his home. Later in his evidence-in-chief he stated that he was arrested in Omukatojo trading centre and yet again that it was in a valley between the trading centre and his home. In other works he was putting up the defence of alibi. I directed the assessors and reminded myself that an accused is entitled to have the property explore all the defences directly put forward by him or indicated. ly arising from the proceedings. It is this courts view that $... / 18$

once the defence of alibi materialises the burden of provising that 'the accused was at the scene of the crime does rot shift from the prosecution. However,''the accused should place before the court by cross-examination of the prosecution witnesses or I\* i il ; | by evidence-m-chief or on his behalf or by a combination of the two such material as makes (the alibi) a live issue ... It is then for the prosecution to eliminate the issue and prove •h • 11 I J j the constituents of the offence charged," See HALSBURY1S LAWS 'Vf' OR EM^LAFD (supra) paragraph \58. I observed the demeanour of the witness. He was extremely evasive and unsettled in the i witness stand. He panicked about the identities of PvV2 and P'«7 and he was also evasive about what he signed in what location and how many times he did it. These\*' inconsistencies and contradictions were very grave, in my view. I find that the accused was squarely placed at the scene of the offences. The second |'j| | Essential ingredient, therefore, stand proved beyond reasonable Jiij-j-j doubt.

;:i' | ' The assessors advised as follows: The victims were ilijiljU; intelligent and truthful; their ind.ivid.ual evidence was corrobprated by that of JPW1 and p\$4. The accused's alibi was destro; ed. Therefore the accused should be convicted as charged.

> In agreement with the assessor's opinion and for the above reasons the accused is found guilty of the offences as charged. He is accordingly convicted on both counts.

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