Wakilii

A.Walusimbi & 3 ors v Uganda (Criminal Appeal 28 of 1992)

Supreme Court · [1994] UGSC 6 · 1994 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against conviction and sentence of the High Court at Kampala for aggravated robbery and murder
Decision
Robbery convictions and sentences of Walusimbi and Twaha confirmed; all four appellants' murder convictions quashed; Kandole and Sekabembe acquitted of all charges and ordered released.

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Holding

The Supreme Court held that under section 25 of the Evidence Act, the admissibility of a confession is a matter for the judge's discretion, turning on whether the circumstances made an untrue confession likely, not merely on whether the confession appears true. A co-accused's confession is accomplice evidence of the weakest kind and cannot corroborate another co-accused's retracted confession. Walusimbi's robbery conviction was upheld on his unexplained production of the murder weapon, and Twaha's on his confession supported by his bank account; Kandole's and Sekabembe's convictions were quashed for want of reliable, corroborated evidence. All murder convictions were quashed because there was no intention to kill — the gun was fired only to stop the vehicle.

Facts

On 24 October 1989, Abbot Sebuliba withdrew shs.2,692,816 from Grindlays Bank and, with his friend Kakonge (PW1), transported the cash in his pick-up. An overtaking car blocked their route and gunmen opened fire, hitting the tyres and shooting Sebuliba in the back. The robbers seized the money and fled in a stolen white Corolla, which they later abandoned at Kamwokya. Sebuliba died the following day from a bullet that ruptured his intestine, pancreas and liver. Kakonge could not identify the robbers. Walusimbi, after prolonged military custody, led Inspector Opio to an SMG gun hidden at Bunamwaya Hill, which the firearms expert matched to spent cartridges recovered from the scene. Walusimbi, Twaha and Sekabembe each made confessions that were later retracted or repudiated, implicating themselves and one another in stealing the getaway car and carrying out the robbery. Twaha's bank account showed an unexplained deposit of shs.500,000 on the day of the robbery. Kandole was implicated only by Twaha's confession and by Kakonge's uncertain claim of having seen him behaving suspiciously at the bank.

Issues

  1. Whether confessions made after prolonged unlawful military custody and alleged torture were admissible under section 25 of the Evidence Act.
  2. The proper interpretation of section 25 of the Evidence Act — whether the test is the apparent truth of the confession or the nature of the inducement.
  3. Whether a retracted or repudiated confession could be relied upon without corroboration.
  4. Whether the confession of a co-accused can corroborate the confession of another co-accused.
  5. Whether the evidence sufficiently established each appellant's participation in the robbery.
  6. Whether there was an intention to kill capable of sustaining the murder convictions.

Orders

  • Convictions of Walusimbi and Twaha for robbery confirmed, and the sentences thereon confirmed.
  • Convictions of Walusimbi and Twaha for murder quashed and the sentences set aside.
  • 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 s.25 of the Evidence Act — judicial discretion
Under section 25 of the Evidence Act, the admissibility of a confession is a matter for the judge's judicial discretion; the essence of the section is not simply whether the statement appears true, but whether the circumstances made it likely that an untrue confession would be made.
Evidence — Confession of co-accused — accomplice evidence of the weakest kind
A confession that implicates a co-accused is accomplice evidence of the weakest kind; it can only be used to lend assurance to other evidence already implicating the co-accused and cannot by itself sustain a conviction.
Evidence — Retracted and repudiated confessions — need for corroboration as a matter of practice
There is no rule of law making corroboration essential before a retracted or repudiated confession may be relied upon, but as a matter of practice a court looks for corroboration and may act on such a confession alone only after warning itself of the danger and being satisfied that it must be true.
Evidence — Corroboration — confessions of co-accused cannot corroborate one another
The confession of one co-accused cannot be prayed in aid as corroboration of the confession of another co-accused.
Evidence — Facts discovered in consequence of a confession — s.29 — unexplained possession of an instrument of crime
A fact discovered in consequence of information from an accused is admissible even where the confession itself is excluded; an accused's unexplained production of a weapon proved to have been used in the crime supports the inference that he took part in it.
Criminal Procedure — Cautioned statements — recording by the investigating officer inadvisable
It is inadvisable, if not improper, for a cautioned statement to be recorded by the officer conducting the investigation, particularly at a late stage when that officer already possesses other evidence against the accused.
Criminal Law — Murder — common intention — intention to kill
A murder conviction founded on common intention cannot stand where there was no intention to kill; firing a gun to stop a vehicle, with no statement or evidence of intent to kill, does not establish the requisite malice.

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 255
  • Kenyarithi s/o Mwangi v R (1956) 23 EACA 422
  • R v Okitui s/o Odeke (1941) EACA 294
  • R v Keisheimeiza s/o Tindikawa (1940) EACA 67
  • Israel Kamukolse v R (1956) 23 EACA 521
  • Simon v Republic (1971) EA 74
  • Anyanga v R (1968) EA 239
  • R v Aryato s/o Ochulura (1936) 3 EACA 120
  • R v Pangahesa s/o Mgimba (1948) 15 EACA 79
  • Muligwa s/o Mwinje v R (1953) 20 EACA 255
  • Tuwamoi v R (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.