Uganda v Ssenyonga (CR-SC 157 of 2020) [2022] UGHCCRD 90 (16 September 2022)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT ENTEBBE $HCT - 00 - CR - SC - 157 OF 2020$

UGANDA ……………………………………………………………………………………………

#### **VERSUS**

SSENYONGA STEPHEN...................................

$\mathsf{S}$

# BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK, JUDGE

## Ruling

The accused was indicted with the offence of Aggravated Defilement contrary to 10 **Section 129 (3)** and **4 (a)** of the Penal Code Act.

It is alleged that the accused in the months of May and June 2019 at Nasere-Ganda Village in Wakiso District performed a sexual act with Nassali Hajarah a girl aged nine years.

The accused pleaded not guilty to the indictment. In a bid to prove the indictment 15 against the accused, evidence of one witness was admitted during the preliminary hearing and the prosecution called seven additional witnesses then closed its case.

At the close of the prosecution case, **section 73** of The Trial on Indictments Act, requires this 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 20 has been made out against the accused that he should be put to his defence. (See: section 73 (2) of The Trial on Indictments Act). 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). 25 - A prima facie case is established when the evidence adduced is such that a reasonable tribunal, 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. The prosecution at this stage is not required to have proved the case beyond reasonable doubt since such a determination can only be made $5$ after hearing both the prosecution and the defence.

There are mainly two considerations justifying a finding that there is no prima facie case made out as stated in Uganda v. Alfred Ateu [1974] HCB 179, as follows:

- a. When there has been no evidence to prove an essential ingredient in the - alleged 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.

The state and defence did not make any submissions at this stage and instead left it to this court to make its own findings on whether a prima facie case was 15 established or not.

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 defilement. 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;

- a. The victim was below 14 years of age; - b. The sexual act was performed on the said victim; - c. Participation by the accused person.

The victim was below 14 years of age: 25

> In Uganda v. Kagoro Godfrey HCCS no. 141 of 2012, it was stated that the age of a child may be proved by production of a birth certificate or testimony of the

parents. Other ways can be equally conclusive such as the court's own observation of the victim and common sense assessment of the age of the child.

In the instant case PW3 Dorcus Nyanchama, the Clinical Officer who examined the victim on the 08/07/2019 stated that she was of apparent age of nine years

basing on physical development, 22 set of teeth and no pubic hair as well as the $\mathsf{S}$ immunization card which was tendered in and marked PEXHI which stated that the victim was born on the 26<sup>th</sup> March 2010. PF 3A was admitted as PEXH2.

The testimony of PW3 was further corroborated by the testimony of the biological mother of the victim who confirmed that the victim was born on $26/3/2010$ .

I also had the benefit of observing the victim and saw that she was beloe 14 years 10 of age. I therefore find that the prosecution led sufficient evidence capable of supporting a finding that the victim was below the age of 14 years.

#### Sexual act performed on the victim:

Section 129(7) (a) (b) of the Penal Code Act defines 'sexual act' as penetration of the vagina, mouth or anus, however slight, of any person by a sexual organ or 15 unlawful use of any object or organ on another person's sexual organ.

Sexual organ means vagina or penis.

The law on proof of sexual intercourse was stated by the Supreme Court in the case of Basita Hussein v. Uganda SCCA no. 34 of 1995 (unreported) as follows: The act of sexual intercourse or penetration may be proved by direct or circumstantial 20 evidence. Sexual intercourse is proved for instance by the victim's own evidence and corroborated by medical or other evidence. It is not a hand first rule that the victim's evidence and medical evidence must always be addressed in every case of defilement. The medical report PF3A was admitted and exhibited as PEXH1. PW3

stated that the hymen was rupture and there was ulceration of the labia caused by 25 penetration.

That the rupture was not recent (two weeks ago), bruises around the private part and probably caused by being sexually penetrated, meaning that there was a sexual act committed as per the said PF3A. This was corroborated by the testimony of PW4 that when she saw the girl limping, she asked the girl, what had happened. That she refused to tell her until she checked and found sperms and bruises around the private parts. That she then took the victim to a certain clinic and the nurse said she had been defiled. This evidence was further corroborated by PW1 who narrated to court how the accused used to defile her in the bush and in an unfinished house several times after school.

I therefore find that the prosecution led sufficient evidence capable of supporting 10 a finding that a sexual act was performed on the victim.

### Participation of the accused:

$\mathsf{S}$

Lastly, there should be credible direct or circumstantial evidence placing the accused at the scene of the crime as an active participant in the commission of the offence. In the instant case, the evidence adduced was that the accused was known 15 by the victim however, she was unable to connect the accused to the commission of the offence starting with the number of cases she was defiled and the scene of crime. She told court that she could not recall where she was defiled from yet she at the same time stated that she was the one that led the investigating officer to the scene of crime. An identification parade was said to have been conducted however,

20 no identification report was adduced in evidence. All the prosecution witnesses gave different recounts of what happened to the victim.

In the circumstances, there is no direct, circumstantial or other cogent evidence implicating or showing that the accused participated in committing the offence. I

have formed the opinion that if the accused chose to remain silent, this court would 25 not have evidence sufficient to convict him for the offence of aggravated defilement.

I therefore, find that no prima facie case has been made out requiring the accused to be put on his defence.

I accordingly, find the accused not guilty and hereby acquit him of the offence Aggravated Defilement contrary to Section 129 (3) and 4 (a) of the Penal Code Act.

$\mathsf{S}$

He should be set free forthwith unless he is lawfully held on other charges. $\mathsf{S}$

### OYUKO ANTHONY OJOK

JUDGE

16/09/2022 $10$