Wakilii

James Ssemwogerere & Anor v Uganda [1978] UGSC 4

Supreme Court · 1978 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction for murder and sentence of death
Decision
Appeals against conviction and sentence dismissed; murder convictions and death sentences upheld

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Holding

The Court of Appeal held that the appellants' extra-judicial statements were exculpatory, not confessions, were repudiated, and given medical evidence corroborating torture, should not have been relied on. However, the conviction rested on the doctrine of recent possession: a person found with recently stolen goods soon after a theft is presumed to be the thief or a guilty receiver unless he accounts for his possession. The theft was proved beyond reasonable doubt; the appellants were found with the deceased's property about 20.5 hours after the theft and gave no explanation, so the possibility of mere receiving was excluded and the inference of theft was irresistible. Murder committed during the robbery rendered all participants liable. Appeals dismissed.

Facts

On the night of 2 February 1977 at Bbale village, the deceased was strangled with a nylon ribbon in her home and her property stolen. A child present heard three men attack her but recognised no one; the deceased was found dead the next morning, the cause of death being suffocation. About 20.5 hours after the theft, on 3 February 1977, the two appellants were arrested in Masaka: the first carrying the deceased's Sanyu radio and the second carrying a bundle containing three gomesis identified as the deceased's property. Neither gave any explanation for his possession at arrest or at trial. Each made an extra-judicial statement before a magistrate, but both alleged they had been tortured in police detention, allegations corroborated by medical evidence of recent scars and septic wounds. There was no eyewitness; the case rested on circumstantial evidence and the doctrine of recent possession.

Issues

  1. Whether the appellants' extra-judicial statements were voluntary and admissible given allegations of torture corroborated by medical evidence.
  2. Whether the appellants' exculpatory statements amounted to confessions and could be acted on after being retracted.
  3. Whether the trial judge erred in convicting on the doctrine of recent possession without excluding the possibility that the appellants were mere receivers.
  4. Whether the appellants shared a common intention rendering them liable for murder committed in the course of a robbery.

Orders

  • The appeal of each appellant is dismissed.

Key headnotes

Evidence — Confessions — Exculpatory statement is not a confession
A statement that does not admit the offence charged and that seeks to shift blame onto another participant is exculpatory and does not constitute a confession.
Evidence — Confessions — Voluntariness — Repudiated statements and corroborated torture
Where medical evidence corroborates an accused's allegations that an extra-judicial statement was extracted by torture, the voluntariness of the statement is in doubt and no weight should be placed upon it.
Criminal Law & Procedure — Doctrine of recent possession — Presumption from possession of recently stolen goods
A court may presume that a person in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he accounts for his possession.
Criminal Law & Procedure — Recent possession — Excluding the possibility of mere receiving
Before the inference that an accused stole the goods (and is thereby implicated in an associated offence) can be drawn from recent possession, the possibility that he merely received the goods must be excluded; unexplained possession a short time after the theft justifies excluding that possibility.
Criminal Law & Procedure — Common intention — Murder committed in the course of a robbery
Where a murder is committed in the prosecution of a common unlawful purpose of a gang and is a probable consequence of that purpose, every member of the gang shown to share the common purpose is guilty of murder.
Evidence — Circumstantial evidence — Standard for inculpatory facts
Inculpatory facts relied on against an accused must be incompatible with innocence and incapable of explanation upon any other reasonable hypothesis.

Cases cited (6)

  • Andrea Obonyo v R (1962) E.A. 542
  • Ezera Kyabanamaizi and others v R (1962) E.A. 309
  • Kantilal Jivraj and Another v R (1961) E.A. 6
  • R v Jassani s/o Mohammed (1948) 15 E.A.C.A. 121
  • Director of Public Prosecutions vs Neisar (1958), 3 757 at p.766
  • R v Bakari s/o Abdulla (1949) 16 E.A.C.A. 84
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.