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Turyakira v Uganda (Criminal Appeal 180 of 2013)

Court of Appeal · [2023] UGCA 240 · 2023 Conviction Quashed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from a High Court conviction for murder and sentence of 30 years' imprisonment
Decision
Conviction for murder set aside; appellant fully discharged and to be released forthwith unless lawfully held otherwise

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Holding

The Court of Appeal allowed the appeal against a murder conviction, holding that the evidence relied on by the trial judge was uncorroborated hearsay incapable of sustaining a conviction. Kasibayo, the only eye-witness, was never called, so his reports to PW1 and his alarm to PW2 were hearsay. The deceased's cry 'Norman has killed me' was not a valid dying declaration: PW2 only heard it from afar and could neither perceive nor identify the speaker, and a dying declaration must be relayed by a person present when it was made. The circumstantial evidence was weak and guilt was not proved beyond reasonable doubt. The conviction was set aside and the appellant discharged.

Facts

The appellant and the deceased were both employees at PW1's bakery and shared a house with a fellow worker, Kasibayo. On the night of 26 September 2010, PW2, the bakery guard, heard a scuffle and a voice crying 'Norman has killed me'; Kasibayo then ran to the bakery saying Norman was finishing them, but PW2 did not open the gate or investigate. At about 3:00am PW1 was told by a neighbour that someone was groaning nearby; PW1 and PW2 found the deceased badly beaten and lying in a pool of blood, no longer speaking but still alive. The deceased was hospitalised and died about a week later. When questioned, the appellant remained silent and appeared angry. No eye-witness testified; Kasibayo, who reportedly witnessed the fight and narrated events to PW1, was never called. An alleged blood-stained hoe handle or sticks said to be found in the appellant's room was never exhibited, and the police investigation was inadequate. The appellant denied the offence and raised an alibi.

Issues

  1. Whether the trial judge erred in convicting the appellant on unsatisfactory circumstantial and hearsay evidence.
  2. Whether the deceased's cry that 'Norman has killed me', as heard by PW2, amounted to an admissible dying declaration.
  3. Whether the inconsistencies and contradictions in the prosecution evidence were material and fatal to the conviction.

Orders

  • Ground one of the appeal succeeds; ground two fails.
  • The appellant's conviction for murder contrary to Sections 188 and 189 of the Penal Code Act is set aside.
  • The appellant is fully discharged and, unless held for any other lawful purpose, must be released forthwith.
  • The third ground of appeal (sentence) need not be resolved.

Key headnotes

Hearsay — Uncorroborated hearsay — Insufficiency to sustain a conviction
A conviction cannot stand where it rests on uncorroborated hearsay; reports and an alarm relayed by a person who was never called to testify remain inadmissible hearsay and are insufficient to prove guilt.
Circumstantial evidence — Inference of guilt — Requirement of incompatibility with innocence
Where the prosecution case depends solely on circumstantial evidence, the court must find that the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation on any reasonable hypothesis other than guilt, with no co-existing circumstances that weaken the inference; such evidence must be treated with caution as it can easily be fabricated.
Dying declaration — Admissibility requirements — Statement must be perceived and relayed by a person present
A statement is not admissible as a dying declaration where the witness only heard it from afar and could neither perceive the circumstances nor identify the maker; for a dying declaration to be relevant it must be relayed by the individual who was present when the statement was made.
Appeals — Duty of the first appellate court to re-evaluate evidence
A first appellate court is required under Rule 30(1)(a) of the Judicature (Court of Appeal Rules) Directions to carefully and critically re-appraise the evidence and draw its own inferences of fact, while bearing in mind that it did not see or hear the witnesses testify.
Contradictions and inconsistencies — Distinction between material and minor discrepancies
Grave inconsistencies and contradictions in prosecution evidence, unless satisfactorily explained, will usually lead to rejection of the evidence, while minor ones not pointing to deliberate untruthfulness will be ignored; materiality is determined by the centrality of the matter to the elements that must be proved.

Legislation cited (6)

  • Penal Code Act s.188
  • Penal Code Act s.189
  • Evidence Act s.30(a)
  • Evidence Act s.59(a)
  • Evidence Act s.59(b)
  • Judicature (Court of Appeal Rules) Directions r.30(1)(a)

Cases cited (15)

  • Woolmington v DPP [1935] UKHL 1
  • Guloba Rogers v Uganda (Criminal Appeal No. 57 of 2013)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Simoni Musoke v R (1958) EA 75
  • Musoke v R [1958] EA 715
  • Teper v R [1952] AC 480
  • Byaruhanga Fodori versus Uganda, SC Criminal Appeal No.
  • Tindigwihura Mbahe v Uganda (Criminal Appeal No. 9 of 1987)
  • Lugemwa Charles v Uganda (Criminal Appeal No. 216 of 2017)
  • Apea Moses v Uganda (Criminal Appeal No. 0653 of 2015)
  • Badru Mwidu v Uganda (Criminal Appeal No. 15 of 1997)
  • Mbulo Edward v Uganda (Criminal Appeal No. 17 of 1995)
  • James Sawoabiri & Another v Uganda (Criminal Appeal No. 5 of 1990)
  • Sarapio Tinkamalirwe v Uganda (Criminal Appeal No. 27 of 1989)
  • Twinomugisha Alex & 2 Ors v Uganda (Criminal Appeal No. 35 of 2002)
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.