Abasi Kanyike v Uganda (Criminal Appeal 34 of 1989)
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Holding
The Court held that once a fact or document is admitted or agreed in a memorandum under section 64 of the Trial on Indictments Decree it is deemed proved and cannot be challenged in the defence, and that the voluntariness of a confession can only be tested by a trial within a trial during the prosecution case. However, because the accused pleaded not guilty yet, almost immediately, admitted the entire prosecution case before giving defence statements that retracted those admissions, the two positions were irreconcilable and the conduct of the defence was ambiguous. It was therefore unsafe to let the convictions stand. The appeal was allowed, the conviction and sentence set aside, and a trial de novo ordered.
Facts
On the morning of 15 September 1987 the Appellant, a gardener employed by the complainant, and his co-accused Emmanuel entered the complainant's house, confronted him on the stairway, drove him into his bedroom and beat him, the attack having been launched with intent to steal using violence. The complainant defended himself well enough to persuade the intruders to abandon their design and escape. The Appellant was well known to the complainant; Emmanuel was identified on an identification parade. The trial was a paper trial in which no witnesses were called: the prosecution witnesses' statements and the accused's cautioned statements were read out and admitted at the preliminary hearing without objection. The accused then gave defence statements retracting and repudiating the cautioned statements, the Appellant raising self-defence and Emmanuel denying any participation. The trial judge disbelieved the defences and returned to the admitted facts, convicting the Appellant of assault with intent to steal and sentencing him to seven years' imprisonment, while acquitting him of attempted murder.
Issues
- Whether facts and cautioned statements admitted in a memorandum under section 64 of the Trial on Indictments Decree could be challenged or disputed during the defence.
- Whether the voluntariness of a confession can be determined while analysing the defence rather than by a trial within a trial during the prosecution case.
- Whether it was safe to allow the convictions to stand given the ambiguity between the accused's not-guilty pleas and their wholesale admission of the prosecution case.
Orders
- Appeal allowed.
- Conviction and sentence imposed upon the Appellant set aside.
- Trial de novo ordered.
- Appellant remanded in custody for that purpose.
- Co-accused Emmanuel to be called before the Registrar, informed of the decision, and asked if he wishes to appeal.
Key headnotes
Legislation cited (5)
- Trial on Indictments Decree s.64
- Trial on Indictments Decree s.64(2)
- Penal Code Act s.274(1) and (2)(b)
- Penal Code Act s.275
- Penal Code Act s.297
Cases cited (1)
- Kanyankole v R (1972) EA 308