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Uganda v Twinomuhwezi & Anor (Criminal Case Ruk. 00-cr-csc-006/2011) [2012] UGHC 288 (13 December 2012)
- Citation
- [2012] UGHC 288
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- High Court of Uganda
- Panel
- Kwesiga, J
- Case number
- Criminal Case Ruk. 00-cr-csc-006/2011
- Language
- English
More details
- Court
- High Court of Uganda
- Panel
- Kwesiga, J
- Case number
- Criminal Case Ruk. 00-cr-csc-006/2011
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The prosecution failed to discharge the burden of proof required in a murder trial. The only evidence placing the accused at the scene was the unsworn testimony of a child witness, which was not corroborated by any other material evidence as required by law. Furthermore, the prosecution did not challenge the accused persons' alibi during cross-examination, and no evidence was adduced to disprove it. In accordance with established legal principles, the absence of corroboration for the child witness's unsworn evidence and the unchallenged alibi meant that the prosecution's case was insufficient to support a conviction. The accused persons are therefore acquitted of the charge of murder.
Court disposition
acquittal
Orders
- The accused persons, Twinomuhwezi Amon and Mujuni Alex, are acquitted of the charge of murder.
02
Material facts
Parties
Uganda
Applicant Counsel: Mr. Baguma BatsonTwinomuhwezi Amon
Defendant Counsel: Mr. Bwagi JonathanMujuni Alex
Defendant Counsel: Mr. Bwagi Jonathan03
Procedural history
Posture
Criminal Trial / Judgment
04
Questions and positions
Legal issues
- 01
Whether the prosecution proved beyond reasonable doubt that the accused persons murdered Barinda Cosma.
- 02
Whether the accused persons' defence of alibi was disproved by the prosecution.
- 03
Whether unsworn evidence of a child witness can be relied upon for conviction without corroboration.
Party arguments
- Applicant
- The prosecution argued that the accused persons, Twinomuhwezi Amon and Mujuni Alex, murdered Barinda Cosma on 7th February 2011. The State relied on the testimony of five witnesses, including a child witness who claimed to have overheard the accused planning the attack and saw them follow the deceased after a party. The prosecution asserted that the post-mortem evidence established the cause of death as multiple cut wounds inflicted by a sharp instrument, and that circumstantial evidence placed the accused at the scene.
- Respondent
- The accused persons denied being present at the party and raised the defence of alibi, asserting they were elsewhere at the time of the alleged murder. They argued that the prosecution failed to challenge their alibi during cross-examination and that the only evidence implicating them was the unsworn testimony of a child, which lacked corroboration and could not form the basis for conviction.
05
Court’s reasoning
Legal principles
- 01
Article 28(3)(a) Constitution of Uganda; Bogere Moses and Another v Uganda (1996) HCB 5; Ssekitoleko v Uganda (1967) EA 531
The burden of proof in criminal cases rests on the prosecution to prove the accused's guilt beyond reasonable doubt.
- 02
Ssekitoleko v Uganda (1967) EA 531; Akol Patric and others v Uganda (2006) HCB 4
Where an accused raises an alibi, the prosecution must adduce evidence to disprove it; the accused has no duty to prove the alibi.
- 03
Section 40(3) Trial on Indictments Act; R v Campbell (1956) 2 All ER 272
Unsworn evidence of a child must be corroborated by other material evidence before it can be relied upon for conviction.
06
Ratio, limits and disposition
Ratio decidendi
The prosecution failed to discharge the burden of proof required in a murder trial. The only evidence placing the accused at the scene was the unsworn testimony of a child witness, which was not corroborated by any other material evidence as required by law. Furthermore, the prosecution did not challenge the accused persons' alibi during cross-examination, and no evidence was adduced to disprove it. In accordance with established legal principles, the absence of corroboration for the child witness's unsworn evidence and the unchallenged alibi meant that the prosecution's case was insufficient to support a conviction. The accused persons are therefore acquitted of the charge of murder.
Obiter and limits
- The opinion of the assessors did not address the inadequacy of the evidence of the child witness, whose unsworn testimony cannot be a basis for conviction without corroboration.
- An omission or neglect to challenge the evidence in chief on a material or essential point by cross-examination leads to the inference that the evidence is accepted, subject to its being assailed as inherently and palpably incredible.
Court disposition
acquittal
- The accused persons, Twinomuhwezi Amon and Mujuni Alex, are acquitted of the charge of murder.
Source and reliance status
High Court of Uganda
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court of Uganda
Judgment
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT RUKUNGIRI
HCT-CR-11-CSC-072/2012
CRIMINAL CASE RUK. 00-CR-CSC-006/2011
CRB 141 /2011
UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PROSECUTOR
VERSUS
1. TWINOMUHWEZI AMON 2. MUJUNI ALEX :::::::::::::::::::::::::::::::::::::::::::ACCUSED
BEFORE HON. MR. JUSTICE J. W KWESIGA
JUDGMENT
Twinomuhwezi Amon and Mujuni Alex are jointly indicted for Murder contrary to Sections 188 and 189 of the Penal Code.
It is alleged that the Accused persons on 7th February, 2011 at Ahakibungo Cell Kanungu District murdered Barinda Cosma. The Accused persons pleaded not guilty and the State Proceeded to prove the case against the Accused persons. The State adduce evidence a total of five witnesses and each of the Accused persons gave sworn evidence that was total denial.
The burden of proof is upon the state to prove the whole case against the Accused person beyond reasonable doubt. Every person charged with a criminal case has no burden to prove his innocence because he or she is presumed to be innocent until he pleads guilty or he is proved guilty. This is enshrined in Article 28 (3) (a) of The Constitution of The Republic of Uganda and was settled in Bogere Moses and Another Vs Uganda (1996) HCB 5 and Ssekitoleko Vs Uganda (1967) EA 531.
The Prosecution in a case of Murder has a duty to prove the essential ingredients of the offence namely; deceased, the unlawfulness of the death, presence of malice aforethought in causing death and participation of the Accused person.
Before determining whether or not the above elements have been proved I will summarize the adduced evidence before I evaluate it. The evidence jointly admitted of PW 1 Dr. Mutamaini is that she did post-mortem examination of the dead body of Barinda Cosma on 7th February, 2011. The body had several cut wounds on the head and skull, the arm and shoulder. The cause of death was bleeding from open wound injuries. The injuries were caused by a sharp instrument.
PW 2 Musaazizi Adron, the deceased’s brother found the deceased killed on the roadside. Identified the body for post-mortem examination and buried the deceased.
PW 3 Mbabazi Faustine, the Chairman of Kigarama trading centre participated in village operation to arrest several suspects including the two Accused persons.
PW 4 Tumugabirwe Pascal, visited the scene of crime pursuant to the information that murder had been committed. The suspects were hunted by villagers. He did not participate in arrests. A total of the four suspects were arrested. He forwarded them to the district police headquarters for further action.
PW 5 John Bosco Tukamushaba 10 years old gave unsworn testimony because of his tender age. He did know God and could not take oath. He told court that he knows A1 and A2 and he was seated behind the two in a party and he heard them conspiring and planning to attack the deceased. That at the end of the party after music machines and the lighting generator was switched off he saw the Accused persons follow the deceased. He did not explain how he saw them at night after light was switched off. This was the total prosecution evidence. The two Accused person’s denied ever being at the party as alleged by PW 5 and each set up a defence of ALIBI.
The Prosecution did not challenge the Accused person’s defence of ALIBI in course of cross-examination. It is trite that once the Accused person puts up a defence of Alibi he does not assume the duty to prove it. The duty is upon the prosecution to adduce evidence that disproves it. See: Ssekitoleko Vs Uganda (1967) EA 531 and Akol Patric and others Vs Uganda (2006) HCB 4.
The Prosecution did not, in cross-examination, ask the Accused persons about the validity of their ALIBI. The Supreme Court of Uganda settled in a number of cases the inference to be drawn in the following words:-
“*Whether the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. Therefore an omission or neglect to challenge the evidence in chief on a material or essential point by cross-examination would lead to the inference that evidence is accepted subject to its being assailed as inherently and palpably incredible**.”* See: James Sowabiri & Another Vs Uganda Cr. Appeal No 5 of 1990 OR Bwire Wycliffe & another Vs Uganda Cr. Appeal 12 of 2002.
The only evidence that would have put the Accused near the scene of crime would have been that of PW 5 John Bosco Tukamushaba, a child of tender age who gave evidence not on oath for the reasons that despite being a brilliant boy he did not know the duty of giving evidence on oath. Section 40 (3), Trial on Indictments Act settled that *“...... where evidence admitted by virtue of this subsection is given on behalf of the Prosecution, the Accused shall not be liable to conviction unless the evidence is corroborated by some other material evidence in support thereof implicating him or her.”* In R Vs Campbell (1956) 2 All E. R 272 Lord Goddard held that unsworn evidence of a child must be corroborated by sworn evidence and if the only evidence implicating the Accused is that of unsworn children the judge must stop the case.
In view of the above authorities and law the evidence given by PW 5 John Bosco Tukamushaba has no value on its own as it stands un corroborated.
The evidence of PW 1, PW 2 and PW 3 proved the death of Barinda Cosma. There is no doubt that he was killed by multiple cutting with a sharp weapon. I am satisfied that the evidence adduced by the State proved that murder was committed by any of the two Accused persons.
The opinion of the Assessors did not address the in adequate evidence of PW 5 a child of tender age, who gave unsworn evidence which cannot be a basis for conviction with being corroborated. For this reason, I am not able to agree with their opinion and advice, I find the two Accused persons not guilty and I do Acquit the Accused persons.
....................................
J. W. KWESIGA
JUDGE
13/12/2012
*In the presence of* *:*
*Mr. Baguma Batson, RSA for the State.*
*Mr. Bwagi Jonathan for the Accused.*
*M/S Ampaire Everlyne- Court – Clerk.*
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