Wakilii

Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)

Supreme Court · [1998] UGSC 22 · 1998 Conviction Quashed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal to the Supreme Court from the Court of Appeal's dismissal of a first appeal against conviction and death sentence for aggravated robbery in the High Court
Decision
Appeal allowed; convictions and death sentences quashed and set aside; both appellants ordered released forthwith unless held on other lawful grounds.

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Holding

The Supreme Court allowed the appeal and quashed the convictions for aggravated robbery. It held that the identification evidence was made under difficult night-time conditions and required the courts below to warn themselves of the danger of mistaken identity and look for supportive evidence, which they failed to do. The prosecution had not proved beyond reasonable doubt that stolen property was recovered from the 1st appellant's home, the property never being produced and the conflicting accounts unresolved. The trial court misdirected itself by accepting the prosecution evidence in isolation and rejecting the alibi as a consequence, and the Court of Appeal failed to re-evaluate the whole evidence. The convictions and death sentences were set aside.

Facts

On the night of 5 October 1990 a gang of armed robbers attacked Walumbe landing site in Imanyiro Sub-county, Iganga District, breaking into several fishermen's homes, firing guns and stealing diverse goods. The two appellants were charged, together with a third man who never appeared in court, on three counts of aggravated robbery. At trial four prosecution witnesses, all victims, testified that during the attacks they recognised three attackers, including the two appellants, aided by moonlight, a wick lamp and torchlight, though most admitted they went into hiding and did not recognise the attackers initially. One witness said items stolen from him were later found at the 1st appellant's home, but the property was never produced in court and the police who seized it did not testify. Both appellants gave sworn alibi evidence placing themselves at their own homes. No prosecution evidence was led on the arrests or investigation; on the defence account the appellants were arrested by soldiers and RC officials and held at a military barracks. The appellants were convicted on two counts and sentenced to death.

Issues

  1. Whether the appellants were correctly identified as the attackers, given the difficult conditions for identification during a night-time robbery.
  2. Whether the prosecution proved beyond reasonable doubt that stolen property was recovered from the 1st appellant's home so as to engage the doctrine of recent possession.
  3. Whether the failure to adduce police evidence of the arrest and investigation adversely affected the cogency of the prosecution case.
  4. Whether the appellants' defences of alibi were duly considered by evaluating the evidence as a whole.
  5. Whether the Court of Appeal, as first appellate court, discharged its duty to re-evaluate the whole of the evidence.

Orders

  • The appeal is allowed.
  • The convictions of both appellants are quashed.
  • The sentences are set aside.
  • Both appellants are to be released forthwith, unless held on any other lawful ground.

Key headnotes

Evidence — Identification — Difficult conditions — Need for caution and supportive evidence
Where a case depends wholly or substantially on identification evidence, the court must satisfy itself whether conditions were difficult, warn itself of the possibility of mistaken identity, and where conditions are difficult look for other evidence supporting the correctness of the identification before convicting.
Evidence — Recent possession of stolen property — Burden and standard of proof
The prosecution bears the burden of proving beyond reasonable doubt that an accused was found in recent possession of stolen property; an unresolved conflict over ownership, coupled with failure to produce the seized property in court and absence of the seizing officers' evidence, leaves that burden undischarged.
Criminal Procedure — First appellate court — Duty to re-evaluate the whole evidence
A first appellate court must rehear the case by reconsidering all the materials before the trial court and reach its own conclusion; failure to evaluate the material evidence as a whole constitutes an error in law and may require the second appellate court to re-evaluate the evidence.
Criminal Procedure — Defence of alibi — Evaluation of evidence as a whole
It is a misdirection to evaluate the prosecution evidence in isolation and then reject a defence of alibi merely because the prosecution evidence has been accepted; the court must evaluate both versions judicially and give reasons why one and not the other is accepted.
Evidence — Police evidence of arrest and investigation — Adverse inference
Although the absence of police evidence of arrest and investigation is not as a rule fatal where other evidence proves the case, a court may draw an adverse inference from its absence, particularly where arrests were effected by persons such as soldiers who are not legally competent to investigate criminal cases.
Criminal Procedure — Indictment — Trial in absence of accused
The law does not permit the criminal trial of any person in his absence; where the prosecution elects to proceed against the accused who are present, the charges against an absent co-accused should be dropped and the indictment amended accordingly before evidence is taken.

Legislation cited (3)

  • Penal Code Act s.272
  • Penal Code Act s.273
  • Evidence Act s.155

Cases cited (15)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Pandya v R [1957] EA 336
  • Ruwala v R [1957] EA 570
  • Sulemani Katusabe v Uganda (Criminal Appeal No. 7 of 1991)
  • Roria v Republic [1967] EA 583
  • George William Kalyesubula v Uganda (Criminal Appeal No. 16 of 1997)
  • Abdulla Bin Wendo & Another v R (1953) 20 EACA 166
  • Abdala Nabulere & Another v Uganda (Criminal Appeal No. 9 of 1978)
  • Moses Kasana v Uganda (Criminal Appeal No. 12 of 1981)
  • Rwaneka v Uganda [1967] EA 768
  • Alfred Bumbo and Others v Uganda (Criminal Appeal No. 28 of 1994)
  • Rex v Shaban Bin Donaldi (1940) 7 EACA 60
  • Kella v Republic [1967] EA 809
  • Okoth Okale & Another v Republic [1965] EA 555
  • Sam Lutaya v Uganda (Criminal Appeal No. 10 of 1986)
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.