Muhirwe Simon v Uganda [1997] UGSC 6

Supreme Court · 1997 Conviction Upheld; Caning Set Aside ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Criminal appeal to the Supreme Court from a High Court conviction for defilement

Decision

Conviction for defilement upheld; sentence of six strokes of the cane set aside; sentence of 8 years imprisonment undisturbed

The full judgment

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Holding

The Supreme Court dismissed the appeal against conviction for defilement. Although the trial judge erred by conducting the voir dire after swearing one child witness, failing to conduct any voir dire for another, and omitting to direct the assessors on corroboration in sexual offences, no miscarriage of justice resulted. The appellant's admission to the complainant's mother, made in the presence of his father and not challenged in cross-examination, amounted to sufficient corroboration of the children's evidence, distinguishing the case from Kibangeny where the children's evidence stood alone. The court allowed the appeal against the sentence of six strokes of the cane and set it aside, holding that section 123(1) of the Penal Code provides no corporal punishment for defilement.

Facts

The complainant, Asiimwe, a primary school girl of about 11 years, was picking flowers with two other girls in a garden in Buhara Village, Kabale District, when the appellant attacked and defiled her. One of the girls, Agnes Kembabazi, witnessed the assault. When questioned by her mother, Rukeijakare, the complainant described the attack. The mother went to the appellant's home, where, in the presence of the appellant and his mother, the complainant repeated her account. The appellant said he could not deny it and, being a relative, agreed to pay shillings for medical expenses, writing a chit undertaking to provide the money. He later failed to raise the money, prayed for mercy, and absconded. A doctor who examined the complainant found a ruptured hymen, which he estimated had occurred about six days earlier, and concluded it was a case of defilement. The appellant denied the offence and set up an alibi that he was in Ntungamo at the relevant time.

Issues

Whether a conviction for defilement could be based on the evidence of a child of tender years where a voir dire was either irregularly conducted or not conducted at all.
Whether the evidence of the child witnesses was sufficiently corroborated.
Whether the appellant's admission to the complainant's mother amounted to sufficient corroboration.
Whether the trial judge's failure to direct the assessors on the need for corroboration in sexual offences occasioned a miscarriage of justice.
Whether the appellant's alibi was properly considered.
Whether a sentence of corporal punishment could lawfully be imposed for defilement under section 123 of the Penal Code.

Orders

Appeal against conviction dismissed.
Appeal against the sentence of six strokes of the cane allowed and the sentence set aside.

Key headnotes

Evidence — Child of Tender Years — Voir Dire — Correct Procedure

Where a child of tender years is called as a witness, the voir dire to determine whether the child understands the nature of an oath must be conducted before the child is sworn, and the trial judge must record the investigation; conducting the voir dire after swearing the witness is irregular.

Evidence — Child of Tender Years — Corroboration — Section 38(3) Trial on Indictments Decree

Under section 38(3) of the Trial on Indictments Decree 1971, corroboration is required as a matter of law only where the evidence of a child of tender years is received not on oath; sworn evidence of a child does not require corroboration as a matter of law.

Evidence — Sworn Child Witness — Need for Warning on Danger of Convicting Uncorroborated

Even where a child of tender years gives sworn evidence and corroboration is not required as a matter of law, a court ought not to convict on that evidence, if uncorroborated, without warning itself of the danger of doing so.

Evidence — Corroboration — Accused's Admission as Corroboration

An unchallenged admission made by an accused to a complainant's relative, accepted by the trial court as true, can constitute sufficient corroboration of the evidence of child witnesses in a sexual offence.

Criminal Procedure — Irregularity — Miscarriage of Justice Test

An irregularity in the reception of evidence or in directing the assessors does not vitiate a conviction unless it has occasioned a miscarriage of justice; where independent corroborating evidence exists, such irregularities may be cured.

Criminal Law — Sentence — Defilement — No Corporal Punishment under Section 123(1) Penal Code

Section 123(1) of the Penal Code does not provide for corporal punishment for the offence of defilement, and a sentence of strokes of the cane imposed for that offence is unlawful and must be set aside.

Legislation cited (4)

Penal Code Act s.123
Penal Code Act s.123(1)
Trial on Indictments Decree 1971 s.38(3)
Trial on Indictments Decree 1971 s.81(1)

Cases cited (5)

Kibangeny Arap Kolil v R [1959] EA 92
R v Campbell [1956] 2 All ER 272
Kabura v Republic [1974] EA 188
Jackson Zita v Uganda (Criminal Appeal No. 19 of 1995)
Bimbi Peter v Uganda (Criminal Appeal No. 33 of 1994)

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