Jackson Zita v Uganda (Criminal Appeal No. 19 of 1995)

Supreme Court · [1996] UGSC 38 · 1996 Appeal Dismissed (Corporal Punishment Set Aside) ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Criminal appeal from a High Court conviction for defilement

Decision

Conviction and seven-year sentence of imprisonment upheld; order for corporal punishment set aside as illegal.

The full judgment

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Cited — treatment unverified cited in 31 (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 for defilement but set aside the order for corporal punishment. Although the trial judge irregularly failed to record his summing up to the assessors (s.81(1) TID), to prepare a memorandum of agreed facts (s.64(2) TID) and to record counsel's submissions, none of these omissions occasioned a miscarriage of justice on the facts. The complainant's evidence was adequately corroborated, including by the appellant's unchallenged confession and her distressed condition. The seven-year sentence was neither illegal nor manifestly excessive, but corporal punishment for defilement under s.123(1) had become illegal following the 1990 amendment, and that order was set aside.

Facts

On 10 January 1993 at about 7.00 p.m. at Kituti village, Kasese District, the complainant (PW1), a girl under 18, and her sister (PW2) were returning from Karambi Trading Centre. They met the appellant, who grabbed PW1, pulled her into a coffee plantation, made her fall, tore her pants and had forcible sexual intercourse with her while she raised alarms. PW2 ran home raising alarms and reported to their parents. Two men and the complainant's mother answered the alarms and found PW1 nearby in a distressed condition, and she told them what had happened. That same evening the matter was reported to PW3, an RC1 secretary of defence, who traced the appellant at his father's home, where on inquiry the appellant accepted that he had raped a girl, in the presence of others; PW3 then arrested him. The complainant was examined by Dr. Amanyire, whose report was admitted by consent. The appellant, in an unsworn statement, denied the offence.

Issues

Whether the trial judge's failure to record a note of his summing up to the assessors under s.81(1) of the Trial on Indictments Decree occasioned a miscarriage of justice.
Whether the trial judge's failure to prepare a memorandum of agreed facts under s.64(2) of the Trial on Indictments Decree vitiated reliance on the medical evidence.
Whether the trial judge's failure to record the submissions of counsel occasioned a miscarriage of justice.
Whether there was sufficient corroboration of the complainant's evidence to sustain a conviction for defilement.
Whether the sentence of seven years' imprisonment was manifestly excessive and whether the order for corporal punishment was illegal.

Orders

Appeal against conviction and sentence of imprisonment dismissed.
Order for corporal punishment of six strokes of the cane set aside as illegal.

Key headnotes

Criminal Procedure — Trial with Assessors — Failure to Record Note of Summing Up under s.81(1) Trial on Indictments Decree

A trial judge's note of summing up to the assessors is mandatory under s.81(1) of the Trial on Indictments Decree, and failure to record it is an irregularity; however, such omission only vitiates a conviction where it occasions a failure of justice, and a conviction will stand where there is no indication that the assessors were misdirected.

Evidence — Preliminary Hearing — Memorandum of Agreed Facts under s.64(2) Trial on Indictments Decree

Under s.64(2) of the Trial on Indictments Decree the trial judge must draw up a memorandum of agreed facts forming part of the record; nevertheless a medical report admitted as an exhibit by consent and signed by the parties, counsel, the accused and the judge forms part of the record notwithstanding the absence of such a memorandum.

Criminal Procedure — Record of Trial — Recording Submissions of Counsel

There is no law requiring a trial judge to record the submissions of advocates in a criminal trial, but it is normal practice to do so; failure to record submissions does not occasion a miscarriage of justice where the judgment is delivered shortly after submissions while they remain fresh in the judge's mind.

Evidence — Sexual Offences — Corroboration of Complainant's Testimony

In sexual offences the judge must warn himself and the assessors of the danger of acting on the uncorroborated evidence of the complainant; having done so he may convict in the absence of corroboration if satisfied the evidence is truthful, and where corroboration exists — such as the complainant's distressed condition and the accused's unchallenged confession — a conviction is properly sustained.

Criminal Law — Sentencing — Defilement — Illegality of Corporal Punishment under s.123(1) Penal Code

Following the 1990 amendment of s.123(1) of the Penal Code Act, which omitted corporal punishment from the penalty for defilement (while retaining it under s.123(2) for attempted defilement), the imposition of corporal punishment on a conviction for defilement is illegal and must be set aside.

Criminal Law — Sentencing — Appeal Against Sentence — Manifestly Excessive Test

An appeal against a sentence of imprisonment succeeds only where the sentence is illegal or the court is satisfied it is manifestly inadequate or manifestly excessive; a seven-year sentence for defilement, where the maximum penalty is death, is neither illegal nor manifestly excessive.

Legislation cited (4)

Penal Code Act s.123(1)
Penal Code Act s.123(2)
Trial on Indictments Decree 1971 s.81(1)
Trial on Indictments Decree 1971 s.64(2)

Cases cited (8)

Tinkamalirwe and Another v Uganda (Criminal Appeal No. 5 of 1988)
S. Mukono and Another v Uganda [1965] EA 491
Abasi Kanyike v Uganda (Criminal Appeal No. 34 of 1989)
Kanyankole v Republic (1974) EA 308
Kalanzi vs Uganda Criminal Appeal No.123 of 71
Chila and Another v Republic (1967) EA 722
R v Mohammed Jama (1948) 15 EACA 126
Nimbi Parer v Uganda (Criminal Appeal No. 33 of 1994)

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.