Aharizire Siliverio v Uganda (Criminal Appeal No. 129 of 2002)

Court of Appeal · [2008] UGCA 10 · 2008 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Criminal appeal against conviction and sentence from the High Court at Kabale

Decision

Appeal dismissed; conviction for attempted rape and sentence of 10 years imprisonment confirmed

The full judgment

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Holding

The Court of Appeal dismissed the appellant's appeal against conviction and sentence for attempted rape. It held that the appellant was properly identified through clear, consistent evidence given under bright moonlight by witnesses who knew him, distinguishing the identification authorities relied on by the defence. The co-accused's confession, though weak evidence, could be taken into account against the appellant under s.27 of the Evidence Act and was corroborated by other evidence, including the appellant's lies and conduct on arrest. The appellant's overt acts in dragging, assaulting and stripping the complainant, coupled with his expressed intention to rape, satisfied the elements of attempted rape. Conviction and sentence confirmed.

Facts

On 1 August 1999, the complainant met a group of relatives and neighbours drinking at a trading centre in Kabale District and agreed to walk home with them. After leaving the bar at about 8.30pm, the complainant walked ahead with the second accused (A2). The appellant, who had asked PW3 about A2's whereabouts, hurried to catch up with them. After about 70 metres, A2 and the appellant dragged the complainant into the bush, threw her down, tore off her clothes and knickers, and assaulted her, causing injuries to her neck, knees and teeth. A2 had sexual intercourse with her while the appellant held her by the neck and urged A2 to finish quickly so that he too could rape her. Passersby threw stones, causing the two men to flee. The complainant was rescued and reported the matter. A2 later admitted committing the offence with the appellant and led others to the appellant's home, where he was arrested. The trial judge acquitted the appellant of rape but convicted him of attempted rape based on his role in the ordeal.

Issues

Whether the trial judge erred in finding that the appellant's participation in dragging the complainant into the bush and tearing her clothes so that the co-accused could rape her amounted to attempted rape.
Whether the appellant was properly identified at the scene of the crime.
Whether the confession of the co-accused could be used against the appellant.
Whether the charge and caution statement was properly admissible despite being recorded in English by an officer connected to the case.

Orders

Appeal dismissed for want of merit.
Conviction and sentence of the lower court confirmed.

Key headnotes

Attempt — Attempted Rape — Overt Acts Manifesting Intention under Penal Code Act s.386

An accused who participates in dragging, assaulting and stripping a victim and expressly declares his intention to rape her commits a series of overt acts manifesting his intention, and is properly convicted of attempted rape where the completion of the offence is prevented by circumstances independent of his will.

Confession of Co-Accused — Admissibility against Co-Accused under Evidence Act s.27

A confession by a co-accused may be taken into consideration against another accused under section 27 of the Evidence Act, but it is evidence of the weakest kind and may only be used to lend assurance to other independent evidence implicating the accused.

Identification — Mistaken Identity — Conditions Favouring Correct Identification

Identification made over a prolonged period under bright moonlight, by witnesses who previously knew the accused, with consistent and unchallenged evidence, may safely rule out the possibility of mistaken identity, distinguishing cases involving sudden attacks, gunfire, poor lighting or contradictory evidence.

Charge and Caution Statement — Recording by Officer Connected to Case and in Translated Language

The recording of a charge and caution statement by an officer with knowledge of the offence, or in a language requiring translation, calls for adverse comment but is not per se fatal to the prosecution case where there was effective communication and the recording principles were otherwise observed.

Lies of Accused — Corroborative Value

Where an accused is proved to have told deliberate lies, such as denying knowledge of relatives and witnesses well known to him, those lies may support and corroborate the prosecution case.

Minor Cognate Offence — Conviction under Trial on Indictment Act ss.87 and 88

A person charged with rape may be convicted of the minor cognate offence of attempted rape where the facts proved reduce the offence, pursuant to sections 87 and 88 of the Trial on Indictment Act.

Legislation cited (8)

Penal Code Act s.125
Penal Code Act s.119
Penal Code Act s.386
Evidence Act s.27
Trial on Indictment Act s.86
Trial on Indictment Act s.87
Trial on Indictment Act s.88
Judicature (Court of Appeal Rules) Directions r.30

Cases cited (15)

Hitlar Ojasi Vs Uganda S.C Appeal No. 1 of 1998
Abasi Ssali v Uganda (Criminal Appeal No. 7 of 1998)
The King Vs Baskaville 1916 2KB 658
Pandya Vs R [1957] EA. 336
Ruwala Vs R 1957 EA 570
Bogere Moses v Uganda (Criminal Appeal No. 1 of 1997)
Cpl. Wasswa and Ninsiima Dan v Uganda (Criminal Appeal No. 48 & 49 of 1999)
Anyangu V R [1968] E A 239 at page 340
Anyuna s/o Omolo and another V R [1953] 20 EACA 208
Gopa s/o Gidumenbanya VR 1953 EACA 255
Asenau v Uganda (Criminal Appeal No. 1 of 1998)
Muzayo Thomas and Mukasa George v Uganda (Criminal Appeal No. 03 of 2006)
Nestoli Francisco Tibamwenda v Uganda (Criminal Appeal No. 177 of 2002)
Kibale Isma v Uganda (Criminal Appeal No. 21 of 1982)
Nabugo Vs Uganda [1965] EA 71

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.