Seru Bernard v Uganda (Criminal Appeal No. 0277 of 2009)

Court of Appeal · [2014] UGCA 69 · 2014 Conviction Quashed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Criminal appeal from High Court conviction and sentence for defilement

Decision

Appellant's conviction and sentence quashed; trial declared a nullity; appellant released from custody.

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal quashed the appellant's conviction for defilement. The trial court had admitted incriminating police statements of the absent victim and her mother, and medical reports produced by witnesses other than those who carried out the examinations, without satisfying the conditions in the Evidence Act for receiving secondary evidence of unavailable witnesses. There was no evidence of genuine efforts to trace the witnesses or that their attendance could not be procured without unreasonable delay or expense. By denying the appellant the opportunity to cross-examine these witnesses, the trial breached his non-derogable right to a fair hearing under Articles 28 and 44(c). The trial was a nullity; conviction and sentence were set aside and the appellant released.

Facts

The appellant was indicted in the High Court at Fort Portal for defilement contrary to section 129(1) of the Penal Code Act, alleged to have had unlawful sexual intercourse on 15 January 2005 with a girl under eighteen in Kyenjojo District. He was convicted and sentenced to ten years' imprisonment. The prosecution called five witnesses, but neither the victim nor her mother testified. Instead, police officers who had recorded their statements produced those statements (admitted as exhibits) on the basis that the two women had migrated to an unknown place. Medical reports were also produced: a Police Form 3 concerning the victim's examination by a nursing officer said to be away on studies, and a Police Form 24 concerning the appellant's examination by a doctor whose absence was unexplained. The appellant was thereby unable to cross-examine the persons who conducted the examinations or the women who made the incriminating statements.

Issues

Whether the police statements of the victim and her mother were properly admitted in evidence in their absence.
Whether the admission of medical reports through witnesses other than those who conducted the examinations was lawful under the Evidence Act.
Whether the admission of such evidence violated the appellant's right to a fair hearing under Article 28 of the Constitution.
Whether the conviction and sentence for defilement could be sustained.

Orders

Appeal allowed.
Conviction and sentence quashed and set aside.
Appellant released from custody forthwith.

Key headnotes

Evidence — Admission of Statements of Absent Witnesses — Conditions under Evidence Act s.30(b)

Secondary evidence of an absent witness may only be admitted where it is proved by evidence that the witness cannot be found or cannot attend without an amount of delay or expense the court considers unreasonable; in the absence of such proof the statement is wrongly admitted and must be excluded.

Evidence — Oral Evidence Must Be Direct — Hearsay Police Statements

Under section 59 of the Evidence Act oral evidence must be direct; a police officer who merely recorded a complainant's statement cannot testify to facts such as sexual intercourse of which the officer has no direct knowledge.

Evidence — Medical Reports — Admission Through Different Examiner

A medical report may be admitted through a witness other than the examining medical officer only within the purview of the Evidence Act, after the court is satisfied the examiner is genuinely unavailable; admission without such proof is improper.

Human Rights — Right to Fair Hearing — Right to Cross-Examine Prosecution Witnesses

The right to a fair hearing under Article 28 of the Constitution, which is non-derogable under Article 44(c), includes the right to examine prosecution witnesses; denying an accused the opportunity to cross-examine witnesses whose statements are relied upon to convict violates this right.

Criminal Procedure — Effect of Wrongly Admitted Evidence — Trial a Nullity

Where a conviction is founded on evidence admitted in violation of both the Evidence Act and the accused's constitutional right to a fair trial, the trial is a nullity and the conviction and sentence must be quashed and set aside.

Appeals — Memorandum of Appeal — Requirement to State Grounds Specifically (Rule 66(2))

A memorandum of appeal must, under Rule 66(2) of the Judicature (Court of Appeal Rules) Directions, set out concisely and under distinct heads the specific points of law or fact alleged to have been wrongly decided; generalised grounds offend the rule and risk being struck out.

Legislation cited (13)

Penal Code Act s.129(1)
Constitution of Uganda Article 28
Constitution of Uganda Article 28(3)(g)
Constitution of Uganda Article 44(c)
Evidence Act s.33
Evidence Act s.59
Evidence Act s.60
Evidence Act s.61
Evidence Act s.62(e)
Evidence Act s.63
Evidence Act s.135
Evidence Act s.30(b)
Judicature (Court of Appeal Rules) Directions, Statutory Instrument 13-10, Rule 66(2)

Cases cited (3)

Aramanzani Kampayani v Uganda (Criminal Appeal No. 5 of 1987)
Associated Architects v Christine Nazziwa (Civil Appeal No. 5 of 1981)
Muzamiri Kisiango and Another v Sam Birabwa (Civil Appeal No. 1 of 1980)

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.