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Andrew Walusimbi and 3 Others v Attorney General (Criminal Appeal No. 28 of 1992)

Supreme Court · [1994] UGSC 59 · 1994 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal to the Supreme Court against conviction and sentence of the High Court at Kampala for aggravated robbery and murder
Decision
Robbery convictions and death sentences of Walusimbi and Twaha upheld; murder convictions of all appellants quashed; Kandole and Sekabembe acquitted of all charges and set at liberty.

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Holding

The Supreme Court held that under section 25 of the Evidence Act admissibility of a confession turns on the trial judge's discretion having regard to the manner in which it was made, not merely whether it is true, and that retracted or repudiated confessions require corroboration as a matter of practice. A co-accused's confession is evidence of the weakest kind and cannot corroborate another accused's confession. Walusimbi's robbery conviction was confirmed on the strength of his unexplained possession of the murder weapon; Twaha's robbery conviction was upheld; Kandole's and Sekabembe's convictions were quashed as resting on uncorroborated weak evidence. All murder convictions were quashed for want of any intention to kill.

Facts

The deceased, Abbot Sebuliba, withdrew Shs 2,692,816 in cash from Grindlays Bank and was followed from the bank by robbers in a stolen white Corolla. The robbers blocked his pick-up, fired an S.M.G. gun, hit the deceased in the back, and stole the money before escaping and abandoning the car. The deceased died the following day. The eyewitness, Mr. Kakonge, could not identify any robber. Walusimbi, who had been held in unlawful military custody, pointed out the gun, which ballistic evidence linked to spent cartridges at the scene. The case against the appellants rested largely on extra-judicial and cautioned statements amounting to retracted or repudiated confessions, several taken after prolonged unlawful military detention, together with a bank statement said to reflect Twaha's share of the stolen money.

Issues

  1. Whether the test for admissibility of a confession under section 25 of the Evidence Act is the truth of the confession or the nature of the inducement, threat or violence by which it was obtained.
  2. Whether retracted or repudiated confessions could be relied upon to convict the appellants without independent corroboration.
  3. Whether the confession of a co-accused can amount to corroboration of another accused's retracted confession.
  4. Whether the appellants' convictions for aggravated robbery and murder could be sustained on the evidence.
  5. Whether there was sufficient evidence of an intention to kill to sustain the convictions for murder.

Orders

  • Conviction of Walusimbi for robbery and the sentence confirmed.
  • Conviction of Walusimbi for murder quashed and sentence set aside.
  • Conviction of Twaha for robbery and sentence upheld.
  • Conviction of Twaha for murder quashed.
  • Appeals of Kandole and Sekabembe allowed; their convictions for robbery and murder quashed and sentences set aside.
  • Kandole and Sekabembe ordered to be set at liberty forthwith unless held for any other lawful cause.

Key headnotes

Evidence — Confessions — Admissibility under section 25 of the Evidence Act
The admissibility of a confession under section 25 of the Evidence Act is a matter for the trial judge's judicial discretion, having regard to the manner in which the statement was made and whether the circumstances made an untrue confession likely; the bare truth of the confession is not the sole test.
Evidence — Retracted and repudiated confessions — Need for corroboration
There is no rule of law requiring corroboration of a retracted or repudiated confession, but as a matter of practice a court looks for corroboration because it is dangerous to act on such a confession alone; only after warning itself of the danger and being satisfied the confession must be true may a court act on it with great caution.
Evidence — Confession of a co-accused — Weight against another accused
A confession by a co-accused is accomplice evidence of the weakest kind which may only be taken into account as lending assurance to other admissible evidence against the co-accused, and it cannot itself constitute corroboration of another accused's confession.
Evidence — Cautioned statements — Recording by the investigating officer
It is inadvisable, if not improper, for a cautioned statement to be recorded by the investigating officer, and as far as possible such a statement should be made to a police officer who knows nothing about the case.
Criminal Law — Possession of a recently used weapon — Inference of participation
Where an accused points out and is found in possession of the firearm used in a robbery and offers no credible explanation, it is a proper inference that he participated in the robbery, independently of any confession.
Criminal Law — Murder — Common intention — Intention to kill
A conviction for murder cannot be sustained where the common intention of the gang was to fire at the vehicle to stop it and there was no evidence of an intention to kill the deceased.
Evidence — Confessions — Effect of prolonged unlawful detention
Where an accused has been held in prolonged unlawful military custody, the prosecution must show that the long detention was not operating on his mind at the time of the confession; absent such proof a confession so obtained is rendered objectionable.

Legislation cited (6)

  • Penal Code Act s.272
  • Penal Code Act s.273(2)
  • Penal Code Act s.183
  • Evidence Act s.24
  • Evidence Act s.25
  • Evidence Act s.29

Cases cited (11)

  • Gopa s/o Gidamebanya v R (1953) 20 EACA 257
  • KENYARITHI s/o ... VS R (1956) 23 E.A.C.A. 422
  • R v OKITUI s/o ODEKE (1941) ... E.A.C.A.
  • R v Keisheineiza s/o Tindikawa (1940) EACA 67
  • Israel Kamukolse v R (1956) 23 EACA 521
  • Simon v Republic (1971) EA 24
  • Anyango v R (1968) EA 239
  • R V ARYATO d/o OCHULURA (19..) 3 E.A.C.A. 12
  • R v Pangahejsa s/o Mgimba (1948) 15 EACA 79
  • Miligwa s/o Mwije v R (1953) 20 EACA 255
  • Tuwamoi v Uganda (1967) EA 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.