Baziriyo v Uganda (Criminal Appeal 15 of 1991) [1992] UGSC 17 (20 February 1992)

IN THE SUPREME COURT OF UGANDA

AT MENGO

MANYINDO - DCJ. ODER - JSC. PLATT - JSC. (CORAM:

CRIMINAL APPEAL NO. 15 OF 1991

BETWEEN

BAZIRIYO BARYOMUNTARO: :: :: :: :: :: APPELLANT

A N D

$UGANDA: :: :: :: :: ::$ $:: :: :: :: :: ::$ RESPONDENT

> (Appeal from the Conviction and Sentence of the $H/C$ of Uganda at Fort Portal (Mr. Justice I.<br>K. Mukanza) dated 5-12-90, in H. C. CR. SS: No. $46/90$ $\cdot$

JUDGMENT OF THE COURT:

The appellant was on $5-12-90$ , convicted by the High Court at Fort Portal of the manslaughter of the deceased. one Richard Kapere, contrary to Section 182 of the Penal Code and was sentenced to 10 years imprisonment. He had been indicted for murder but was convicted of the lesser charge on the ground that he was under the influence of drink when he allegedly killed the deceased. He appealed against both conviction and sentence but at the hearing of the appeal his Counsel, Mr. Akampurira, abandoned the appeal against the conviction.

$\frac{1}{2}$

A\* 2 A

It was brought; So; this appeal is against sentence only\* with leave of this Court\*

There was: ample evidence to support the conviction\* It was that on the fateful day the appellant returned home at about 9.00 p.m. He was in drink\* He abused his; wife Deuniya (PW1) and even wanted to cut her with a panga but was disarmed by his two sons - the deceased and Ragnnr.a, The appellant then went for. went to attack pwl\*. The deceased again went forward to disarm him whereupon the appellant speared him on the left temporal region, frac.turing his skull and injuring the brain\* The 24 year old deceased died almost instantly from the penetrating head injury and internal haemorrhage\* his spear and,. armed with it, He was annoyed with his wife as the neighbours were accusing her of being a witchdoctor\*

With regard to sentence,, the appellant was about, 50 years old when he was sentenced.. He had been on remand He was had killed his own son\* agreed.. Accordingly the appeal is allowed\* aside\* for 4% years awaiting trial.; Ur. Akampurira submitted that, in a first offender and have been appropriate\* We agree that given the circumstances of the case, and the long period the appellant had spent on remand, the sentence of 10 years imprisonment was manifestly excessive. The sentence is set; the circumstances a sentence of 8 years imprisonment would! The State.. Attorney, Mr. Kabalx,.

/5

We. substitute a sentence of 8 years imprisonment.

Before we take leave of this Court we wish to comment on a procedural matter.. At the commencement of the trial two Assessors were selected. case\* the trial resumed one of the Assessors was absent. The trial Judge decided, quite rightly, to proceed with the case with only one Assessor. They took: their places and heard the whole of the prosecution The hearing was then adjourned for two days r When

The appellant chose to make an unsworn statement in his defence and while he was making the statement, the absentee Assessor entered Court and stated "I have been at the Police Station." The trial Judge then allowed him to resume his seat. He was informed of what the appellant. had said, in his defence up to that time. At the end of the case that Assessor, like his co - Assessor, advised that the appellant be convicted of the murder of the deceased.

In our view it is now settled law that to proceed with the hearing of a case in absence of one Assessor is lawful. But it is unlawful to allow the absentee Assessor to resume the Trial on Indictments Decree. See: hi s seat and give his opinion if he has missed an important part of the trial such as the evidence in the case. Where all the evidence was heard by the Assessor then the irregularity may be curable under Section 157 of

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Qbura v Uganda - Criminal Appeal No\* ¹ of 1981 - Court of Appeal, (unreported)« In this case the absentee Assessor did hear all the evidence and statement of defence as welX as the address of Counsels The irregularity of allowing him to resume his seat and give his opinion was therefore. curable But the best course to adopt is, in our opinion\* to exclude him from the case.¹

DATED at Mengo this; 1991.

SIGNED: S. ^T'. MANYINDO

DEPUTY CHIEF JUSTICE

H. G.' PLATT

JUSTICE OF THE SUPREME COURT

A. 'hT 0. ODER

JUSTICE OF THE SUPREME COURT.