Tinkamalirwe v Uganda (Criminal Appeal 27 of 1989)

Supreme Court · [1991] UGSC 21 · 1991 Appeal Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Criminal appeal against conviction and sentence from the High Court at Fort Portal.

Decision

Appeal partly allowed; aggravated robbery convictions quashed and simple robbery substituted; death sentences set aside and replaced with concurrent terms of 10 years (counts one and two) and 7 years (counts three and four) imprisonment.

The full judgment

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Holding

The Supreme Court partly allowed the appeal. The trial judge's method of analysing the defence case before the prosecution was undesirable but had not produced wrong conclusions, so the two convictions for kidnapping with intent to murder were upheld; the judge's misdirection on the ingredients of that offence was curable under the proviso to s.331(1) of the Criminal Procedure Code as no miscarriage of justice arose. On the aggravated-robbery counts, the use of a knife some three hours before the money was taken was not 'immediately before or after' the robbery under s.273(2), so those convictions were quashed and simple-robbery convictions substituted. The death sentences were set aside and terms of imprisonment imposed.

Facts

During 1985 fighting between NRA and government (UNLA) forces in Kabarole District, the appellant, a local UPC chairman, fled his area. On 16 May 1985 fleeing villagers, including the two deceased victims and the robbery complainants, were arrested by UPC Youth Wingers and taken to an office associated with the appellant. Prosecution witnesses testified that the appellant beat the victims, stabbed one in the mouth and ribs with a knife, and handed the two bound victims to soldiers in a Land Rover who drove them away; the victims were never seen again and bones believed to be theirs were found months later. Around midday, after the soldiers returned, money was taken from two complainants. The appellant set up an alibi that he had left for Fort Portal days before the offences, supported by two witnesses whose evidence about the dates was vague. The trial court convicted on two counts of kidnapping with intent to murder and two counts of aggravated robbery and sentenced him to death.

Issues

Whether the trial judge's approach of analysing the defence case before the prosecution case led to wrong conclusions warranting interference with the convictions.
Whether the trial judge wrongly rejected the appellant's alibi and misapplied the law on inconsistencies in the prosecution evidence.
Whether the trial judge's misdirection on the ingredients of kidnapping with intent to murder under s.255(1)(a) of the Penal Code occasioned a miscarriage of justice.
Whether the use of a deadly weapon some hours before the taking of money was sufficiently proximate in time to constitute aggravated robbery under s.273(2) of the Penal Code.

Orders

Appeal allowed in part.
Convictions on counts three and four for aggravated robbery quashed and the sentences set aside.
Convictions for simple robbery contrary to s.272 of the Penal Code substituted on counts three and four.
Death sentences set aside.
Sentence of 10 years' imprisonment imposed on each of counts one and two.
Sentence of 7 years' imprisonment imposed on each of counts three and four.
All sentences to run concurrently.
No order made for corporal punishment.

Key headnotes

Criminal Law & Procedure — Judgment Writing — Order of Analysing Prosecution and Defence Cases

In a criminal trial the court should ordinarily set out the prosecution case first, then the defence case, before indicating its findings on the whole of the evidence; analysing the defence case before the prosecution case is undesirable but is not necessarily fatal where it did not cause the trial court to reach wrong conclusions.

Evidence — Inconsistencies and Contradictions — Materiality and Rejection of Testimony

Only a grave inconsistency, unless satisfactorily explained, will usually result in rejection of a witness's evidence; a minor inconsistency will not have that effect unless the court considers it points to deliberate untruthfulness.

Evidence — Cross-examination on Prior Inconsistent Statements — Failure to Tender Police Statement

Where defence counsel challenges a witness on discrepancies between the witness's testimony and a prior police statement and the witness denies them, the failure to have the police statement admitted as an exhibit prevents an appellate court from differing from the trial judge's finding on the witness's credibility.

Criminal Law & Procedure — Kidnapping with Intent to Murder — Ingredients under s.255(1)(a) Penal Code

The offence under s.255(1)(a) of the Penal Code is satisfied by an intent that the victim may be murdered or be disposed of so as to be put in danger of being murdered, which is a broader intent than an intent to murder; a misdirection narrowing that intent may be cured under the proviso to s.331(1) of the Criminal Procedure Code where no miscarriage of justice results.

Criminal Law & Procedure — Aggravated Robbery — Temporal Proximity of Deadly Weapon under s.273(2) Penal Code

For aggravated robbery the use or threat of a deadly weapon must occur at the time of, or immediately before or immediately after, the robbery; use of a deadly weapon some three hours before the taking of property is not sufficiently proximate in time and reduces the offence to simple robbery.

Criminal Law & Procedure — Sentencing — Separate Sentence on Each Count

A trial judge must impose a separate sentence on each count; where a sentence is mandatory on some counts but discretionary on others, the judge must, if imposing the maximum discretionary penalty, set out the reasons why a less severe penalty would be inappropriate.

Legislation cited (6)

Penal Code Act s.255(1)(a)
Penal Code Act s.272
Penal Code Act s.273(2)
Penal Code Act s.274A
Criminal Procedure Code s.331(1)
Trial on Indictments Decree s.108(c)

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.