Oroma & 2 Others v Uganda (Criminal Appeal 146 of 2019; Criminal Appeal 176 of 2020)
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Holding
The Court of Appeal upheld the appellant's conviction for aggravated robbery, finding that a single identifying witness (corroborated by the co-accused's charge and caution statement and the appellant's own deliberate lies) properly placed him at the scene, and that the assessor irregularity caused no failure of justice because that assessor gave no opinion. It held the CCTV footage unreliable for want of proven authenticity under the Electronic Transactions Act, and discounted it. The 22-year sentence was set aside as illegal for incorrect remand deduction (Article 23(8)); the Court imposed 25 years less 6 years 2 days remand. The compensation order was varied to one quarter of the stolen sum.
Facts
On 5 February 2014, armed robbers attacked Capital Forex Bureau at Kabalagala, Kampala, using a deadly weapon and robbing UGX 6,000,000, US$5,000 and foreign currencies. The cashier (PW2) observed an assailant outside the bureau disarm the guard, shoot a dog, clear people from the door and open it before PW2 fled and hid. PW2 later identified the 2nd appellant at an identification parade. The investigating officer (PW4) gave conflicting accounts about whether the 2nd appellant entered the bureau. CCTV footage was played in court but PW4 alleged it had been edited. A co-accused (the 1st appellant) had named the 2nd appellant in a charge and caution statement as a participant who stood guard outside, then sought to retract this at trial. The 2nd appellant raised an alibi that he was at Kyangwali Refugee Settlement. The High Court convicted and sentenced him to 22 years' imprisonment with a compensation order.
Issues
- Whether the trial Judge erred in allowing an assessor who had absented herself from part of the trial to subsequently resume participation, and whether this occasioned a failure of justice.
- Whether the conviction could be sustained on the evidence of a single identifying witness in light of the appellant's defence of alibi.
- Whether contradictions and inconsistencies in the prosecution evidence went to the root of the case and ought to have been resolved in the appellant's favour.
- Whether the CCTV footage was authentic and reliable, and whether expert evidence was required to interpret it under section 43 of the Evidence Act.
- Whether a charge and caution statement of a co-accused who pleaded guilty could corroborate the prosecution evidence against the appellant under section 27 of the Evidence Act.
- Whether the appellant was given adequate time to prepare his defence and was effectively represented, contrary to Article 28(3) of the Constitution.
- Whether the sentence was illegal for failure to deduct the exact period spent on remand under Article 23(8) of the Constitution, and whether the compensation order was proper.
Orders
- Appeals of the 1st and 3rd appellants dismissed upon withdrawal.
- Ground 3 (CCTV footage) succeeds; ground 2 partly succeeds; grounds 1, 4, 5 and 6 fail.
- Conviction of the 2nd appellant for aggravated robbery upheld.
- Sentence of 22 years' imprisonment set aside as illegal for failure to deduct the exact remand period.
- 2nd appellant sentenced to 18 years, 11 months and 27 days' imprisonment (25 years less 6 years and 2 days spent on remand), to run from 20 February 2020.
- Order of compensation against the 2nd appellant set aside.
- Fresh compensation order: foreign currencies (US$5,000, £1,000 and €500) converted to Uganda shillings at the prevailing rate and added to UGX 6,000,000, with the 2nd appellant to pay one quarter of the total after completing his sentence.
Key headnotes
Evidence — Electronic Evidence — CCTV Footage — Burden of Proving Authenticity under the Electronic Transactions Act 2011
A party seeking to introduce an electronic record bears the burden of proving its authenticity; the integrity of the information from generation through transfer and storage must be demonstrated, and where the contents are not clear, unequivocal and self-explanatory the record is unreliable and may require expert interpretation before it can be relied upon.
Evidence — Identification — Single Identifying Witness — Need for Caution
Where a case depends wholly or substantially on the correctness of identification evidence, the court must warn itself of the special need for caution and examine the conditions of identification (lighting, distance, duration of observation, familiarity); a conviction may stand on a single identifying witness only where, after such scrutiny, the possibility of mistaken identity is excluded.
Evidence — Accomplice Confession — Section 27 Evidence Act — Corroboration of Co-accused
A charge and caution statement of a co-accused that is admitted in evidence without objection and whose maker admits, in cross-examination, having made it voluntarily need not be proved by a trial within a trial, and may be taken into consideration as corroboration of the prosecution evidence against the other co-accused under section 27 of the Evidence Act.
Criminal Procedure — Assessors — Section 69 Trial on Indictments Act — Resumption after Absence
An assessor who is absent for part of the trial should not resume participation, and summing up to such an assessor as if she had sat throughout is an error; however, where that assessor gives no opinion and the trial Judge agrees with the assessor who sat throughout, the irregularity occasions no failure of justice.
Evidence — Expert Opinion — Section 43 Evidence Act — When Required
Expert opinion under section 43 of the Evidence Act is required only where the court needs assistance to form an opinion on a point of science, art or identity; where a trial Judge is able to view and interpret evidence such as video footage himself, no expert is required, and in any event an expert's opinion is not binding on the court.
Criminal Procedure — Sentencing — Article 23(8) Constitution — Deduction of Remand Period
Taking into account the period spent on remand under Article 23(8) of the Constitution is an arithmetical exercise; the exact period must be specifically credited to the convict, and a failure to deduct the precise remand period renders the sentence illegal and liable to be set aside.
Evidence — Deliberate Lies by Accused — Corroboration of Prosecution Case
Deliberate lies told by an accused person in his defence, which are shown to be untrue, may corroborate the prosecution evidence and serve as a pointer towards guilt where other evidence places the accused at the scene of the crime.
Legislation cited (19)
- Penal Code Act s.285
- Penal Code Act s.286
- Evidence Act s.27
- Evidence Act s.43
- Electronic Transactions Act 2011 s.2
- Electronic Transactions Act 2011 s.7
- Electronic Transactions Act 2011 s.8
- Trial on Indictments Act s.69 (now s.70, Revised Edition 2023)
- Trial on Indictments Act s.139
- Constitution of Uganda 1995 Article 23(8)
- Constitution of Uganda 1995 Article 28(3)(c)
- Constitution of Uganda 1995 Article 28(3)(d)
- Constitution of Uganda 1995 Article 28(3)(e)
- Constitution of Uganda 1995 Article 44(c)
- Judicature Act s.11
- Judicature (Court of Appeal Rules) Directions rule 30
- Judicature (Court of Appeal Rules) Directions rule 66
- Judicature (Court of Appeal Rules) Directions rule 67(1)
- Constitution (Sentencing Guidelines for Courts of Judicature) (Practice) Directions 2013 Regulation 15(2)
Cases cited (31)
- Abdulla Bin Wendo & Anor vs R, (1953) 20 EACA 166
- Abdalla Nabulere and Another v Uganda (Supreme Court Criminal Appeal No. 9 of 1978)
- Bogere Moses and Another v Uganda (Supreme Court Criminal Appeal No. 1 of 1997)
- Suleman Katusabe v Uganda (Supreme Court Criminal Appeal No. 7 of 1991)
- Kagunge Fred v Uganda (Supreme Court Criminal Appeal No. 14 of 1998)
- Ssesanga Stephen vs Uganda, Criminal Appeal No. Bi of 2000
- Wasswa Stephen and Another v Uganda (Supreme Court Criminal Appeal No. 31 of 1995)
- Otema Anthony v Uganda (Criminal Appeal No. 456 of 2015)
- Kawoya Joseph v Uganda (Supreme Court Criminal Appeal No. 50 of 1999)
- Okao Jimmy and 4 Others v Uganda (Court of Appeal Criminal Appeal Nos. 55, 62 & 67 of 2016)
- Rwabugande Moses v Uganda (Supreme Court Criminal Appeal No. 25 of 2014)
- Baguma Fred v Uganda (Supreme Court Criminal Appeal No. 7 of 2004)
- Bwengye Patrick vs Uganda, CACA No. 54
- Abdu Komakech vs Uganda, [1992-1993] HCB 21
- Kakonge Umar v Uganda (Court of Appeal Criminal Appeal No. 0099 of 2018)
- Bwire Wycliffe and Another v Uganda (Supreme Court Criminal Appeal No. 12 of 2002)
- Mohammed Mukasa and Another v Uganda (Supreme Court Criminal Appeal No. 27 of 1995)
- Festo Androa Asenua and Another v Uganda (Supreme Court Criminal Appeal No. 1 of 1995)
- Dusabe Odeta v Uganda (Court of Appeal Criminal Appeal No. 070 of 2016)
- Omaria Chadia v Uganda [2002] UGSC 7
- Sunday George v Uganda (Court of Appeal Criminal Appeal No. 0007 of 2012)
- Guloba Rogers v Uganda (Court of Appeal Criminal Appeal No. 57 of 2021)
- Kutegana Stephen v Uganda (Court of Appeal Criminal Appeal No. 60 of 1999)
- Mwanga Francis v Uganda (Court of Appeal Criminal Appeal No. 88 of 1999)
- Kiwalabye Bernard v Uganda (Supreme Court Criminal Appeal No. 143 of 2001)
- Kimera Zaverio v Uganda (Court of Appeal Criminal Appeal No. 427 of 2014)
- Olupot Sharif and Another v Uganda (Court of Appeal Criminal Appeal No. 0730 of 2014)
- Rutabingwa James v Uganda (Court of Appeal Criminal Appeal No. 57 of 2011)
- Adama Jino v Uganda (Court of Appeal Criminal Appeal No. 50 of 2006)
- Roria v. Republic [1967] E.A 583
- R v. Turnbull [1976] 3 All ER 54
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