Sesawo s o Kermesi v Uganda (Cr.Appeal No.8 of 1978)

Court of Appeal · [1978] UGCA 3 · 1978 Conviction Quashed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Criminal appeal from a High Court conviction for murder

Decision

Murder conviction quashed and manslaughter conviction substituted; appellant sentenced to 5 years' imprisonment

The full judgment

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Holding

The Court of Appeal held that the privilege of non-compellability of a spouse under s.119 of the Evidence Act is personal to the witness; failure to warn the witness is not a fatal irregularity and the accused cannot take advantage of it. Identification of the appellant by his wife and son was properly accepted. However, given the appellant's prolonged drinking before the killing and the absence of any motive, the court held that intoxication under s.13(4) of the Penal Code raised doubt as to whether malice aforethought was proved. The conviction for murder was quashed and a conviction for manslaughter substituted, with a sentence of five years' imprisonment.

Facts

On Labour Day, 1 May 1977, the appellant and his two wives attended a beer party at the home of a fellow villager. Accounts differed as to how much the appellant drank, but the trial court accepted that drinking occurred. That evening the deceased, the appellant's wife, was heard raising an alarm as she was attacked with a panga near the appellant's home. The surviving wife, Nakate, and the deceased's son, Katunguka, testified that they saw the appellant cutting the deceased. Neighbours who answered the alarm found the appellant still at the scene; he initially claimed to be looking for his wife but then led them to the body, which was covered in blood with a cut to the neck. The appellant's clothes were bloodstained and a bloodstained panga was recovered. The deceased and appellant were said to be on good terms, leaving no apparent motive for the killing.

Issues

Whether the evidence of the appellant's wife was wrongly admitted where she was not warned of her non-compellability privilege under s.119 of the Evidence Act.
Whether failure to warn a spouse-witness of the privilege of non-compellability is a fatal irregularity entitling the accused to relief.
Whether the appellant was properly identified as the assailant given the lighting conditions and alleged contradictions in the prosecution evidence.
Whether the prosecution proved malice aforethought beyond reasonable doubt given evidence of the appellant's intoxication.

Orders

Appeal allowed to the extent that the conviction for murder is quashed.
Conviction for manslaughter substituted.
Appellant sentenced to 5 years' imprisonment.

Key headnotes

Evidence — Competence and Compellability of Spouses — Personal Nature of the Privilege

The privilege of non-compellability enjoyed by the spouse of an accused person under s.119 of the Evidence Act is personal to the witness; it may be claimed only by the witness and cannot be invoked by the accused to challenge the admissibility of the evidence.

Evidence — Spouse-Witness — Failure to Warn of Privilege Not a Fatal Irregularity

Although the better practice is for the court to inform a spouse-witness of the privilege of non-compellability before receiving evidence, there is no statutory obligation to do so, and failure to give such a warning does not occasion a miscarriage of justice, particularly where the witness raises no objection to testifying.

Evidence — Identification — Recognition of Known Persons in Poor Light

Identification evidence may be safely accepted where the witnesses know the accused intimately and observe him at close range, even in poor moonlight, and minor inconsistencies not going to the root of the case do not render the identification unsafe.

Criminal Law — Murder — Malice Aforethought and the Effect of Intoxication under s.13(4) of the Penal Code

Under s.13(4) of the Penal Code, intoxication must be taken into account in determining whether an accused formed the requisite intent; the test is not whether the accused was so drunk that his mind was affected by alcohol, but whether, having regard to all the evidence including drink, the prosecution proved the requisite intent beyond reasonable doubt.

Criminal Law — Motive — Relevance to Proof of Intention

Although the prosecution need not prove motive, where the relationship between the accused and the deceased reveals no apparent motive for killing, the absence of motive may, together with evidence of intoxication, raise doubt as to whether malice aforethought has been established.

Legislation cited (4)

Evidence Act s.119
Penal Code Act s.13(1)(a)
Penal Code Act s.13(1)(b)
Penal Code Act s.13(4)

Cases cited (3)

Tefuro Tibyasansa v. Uganda (EACA) Cr. Appl. No. 169 of 1975 (unreported)
Rashidi v R (1969) EA 138
R. v. Kiaglake (1870) 22 L.T.p.333

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