Wakilii

Mukasa v Uganda (Criminal Appeal 21 of 1993)

Supreme Court · [1995] UGSC 35 · 1995 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for defilement
Decision
Conviction and 14-year sentence for defilement upheld; appeal dismissed

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Supreme Court dismissed the appeal against conviction and sentence for defilement. It held that the trial judge had properly conducted a voir dire and correctly received the child complainant's unsworn evidence under s.38(3) of the Trial on Indictment Decree; omission of express reference to her understanding of the duty to tell the truth occasioned no miscarriage of justice. The complainant's age below 18 was amply proved, her evidence on penetration was corroborated by the appellant's confession, his conduct after the incident and the medical evidence. An accused's subsequent conduct may be considered in assessing guilt. The 14-year sentence for an offence carrying the death penalty was not excessive.

Facts

The appellant, aged 29, lived about 25 metres from the home of the complainant, an 11-year-old girl who lived with her grandparents and shared a bedroom with her aunt. The appellant was well known to the family and often visited. On 14 September 1991, while the complainant's grandparents were away and her aunt had left the bedroom to prepare supper, the appellant entered the bedroom and had sexual intercourse with the sleeping complainant. The complainant immediately reported to her aunt, who saw the appellant walking away. When confronted by a relative, the appellant reacted evasively, fought him and fled. He was later arrested. Medical examination found a recently ruptured hymen and signs consistent with recent penetration. The appellant made a charge-and-caution statement admitting intercourse, later denying the offence at trial and raising an alibi and a grudge allegation against the complainant's family.

Issues

  1. Whether the trial judge sufficiently conducted a voir dire before receiving the unsworn evidence of the child complainant.
  2. Whether the trial judge improperly accepted the prosecution case before rejecting the defence case.
  3. Whether the complainant's age (under 18 years) was conclusively proved.
  4. Whether the appellant's conduct subsequent to the offence could be taken into account in assessing his guilt.
  5. Whether penetration, an ingredient of defilement, was proved beyond reasonable doubt.
  6. Whether the sentence of 14 years' imprisonment was manifestly excessive.

Orders

  • The appeals against conviction and sentence are dismissed.

Key headnotes

Evidence — Child of Tender Years — Reception of Unsworn Evidence under s.38(3) Trial on Indictment Decree
Where a child of tender years called as a witness does not, in the court's opinion, understand the nature of an oath, the child's evidence may be received unsworn if the court is satisfied that the child possesses sufficient intelligence to justify reception of the evidence and understands the duty of speaking the truth.
Evidence — Child of Tender Years — Definition
A child of tender years means any child of any age, or apparent age, under 14 years in the absence of special circumstances; where there is no statutory definition, whether a child is of tender years is a matter for the good sense of the court.
Evidence — Child Witness — Voir Dire Procedure
When faced with a child of tender years as a witness, the trial court must conduct an investigation (voir dire) to determine whether the child should be sworn, and a failure to recite expressly the words 'understands the duty of speaking the truth' does not nullify the reception of the evidence where it occasions no miscarriage of justice.
Evidence — Corroboration — Subsequent Conduct of the Accused
The conduct of an accused person subsequent to the alleged offence may be taken against him in considering his guilt, and such conduct, together with a confession and medical evidence, may corroborate the unsworn evidence of a child complainant.
Criminal Law — Defilement — Proof of Age of Complainant
Where the complainant is shown by her own evidence, that of family witnesses and medical assessment to be under 18 years, the precise discrepancy as to whether she was 11 or 13 is immaterial since the ingredient of age under s.123(1) of the Penal Code Act is satisfied.

Legislation cited (4)

  • Penal Code Act s.123(1)
  • Trial on Indictment Decree (No.26 of 1971) s.38(3)
  • Evidence Act s.72(a)
  • Evidence (Statements to Police Officers) Rules, Statutory Instrument 43-1

Cases cited (5)

  • Kibageny Arap Kolil v R (1959) EA 92
  • Oloo s/o Gai v R [1960] EA 86
  • Efurasi Ndyakwa and Others v Uganda (Criminal Appeal No. 2 of 1977)
  • Tomasi Onukono and Another v Uganda (Criminal Appeal No. 4 of 1977)
  • Archbold Criminal Pleading Evidence and Practice, 39th Edition, paragraph 501
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.