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Kato Sula v Uganda (Criminal Appeal No. 25 of 2000)

Supreme Court · [2001] UGSC 23 · 2001 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from the Court of Appeal, which had dismissed an appeal against a High Court conviction for defilement
Decision
Appeal dismissed; conviction and sentence of 8 years' imprisonment for defilement upheld.

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Holding

The Supreme Court dismissed the second appeal against a conviction for defilement. Faced with concurrent findings of fact by the High Court and Court of Appeal that turned partly on witness demeanour, the Court held it could interfere only if a court below erred in a material respect, and it found no such error; identity was established by witnesses who knew the appellant well. The Court additionally corrected two errors on the record: it set out the proper procedure for recording a voire dire, and it held that the Court of Appeal had erred in stating that a child giving unsworn evidence cannot be cross-examined — such a witness is liable to cross-examination, unlike an accused making an unsworn statement.

Facts

The complainant, a primary-two pupil aged of tender years, was taught by the appellant at Yudaya Islamic School. On 6 August 1995 the appellant sent for the complainant to come to his nearby residence. She arrived accompanied by schoolmates and a young relative; the appellant chased the other children away, sent the relative to fetch a Koran, then pulled the complainant into his room and, after she resisted, overpowered and defiled her. She returned to school and then to her grandfather's home. The next day she refused to go to school and, on inquiry by her grandfather, reported the defilement. The grandfather and a local council chairman went to the appellant's residence and found he had removed his belongings and fled the area. He was arrested and charged with defilement. At trial the appellant raised an alibi, claiming he was a student at another school and had been mistaken for his twin brother Wasswa, who also taught at the school. The trial judge and assessors disbelieved the appellant and his witness and convicted him.

Issues

  1. Whether the prosecution evidence was sufficient to sustain the conviction for defilement.
  2. Whether the prosecution evidence conclusively established the identity of the appellant as the person who defiled the complainant.
  3. Whether an appellate court may interfere with concurrent findings of fact by two courts below that turned partly on the demeanour of witnesses.
  4. Whether a child of tender years who gives unsworn evidence is liable to cross-examination.

Orders

  • Appeal dismissed.

Key headnotes

Criminal Appeals — Concurrent Findings of Fact — Interference Where Findings Turn on Demeanour
Where two courts below have made concurrent findings of fact, particularly where the trial judge's assessment of credibility was influenced by the demeanour of witnesses, an appellate court will interfere only if the appellant satisfies it that the trial judge and/or the intermediate appellate court erred in a material respect.
Child Witnesses — Voire Dire — Manner of Recording the Inquiry
A voire dire inquiry must test whether a child of tender years understands the nature of an oath and, if not, whether the child is sufficiently intelligent and understands the duty of speaking the truth; the trial judge must record the inquiry either as questions and answers in dialogue form or as the witness's answers in narrative first-person form, followed by the judge's conclusions, and a mere paraphrase that omits both questions and answers is irregular.
Child Witnesses — Unsworn Evidence — Liability to Cross-Examination
A child of tender years who is permitted to give unsworn evidence is a competent witness whose evidence is subject to cross-examination under section 70 of the Trial on Indictments Decree 1971 and sections 133 and 136 of the Evidence Act; the view that such a witness cannot be cross-examined because there is no binding oath is erroneous.
Unsworn Statement of Accused — Distinction from Unsworn Evidence of a Child Witness
The unsworn statement of an accused person is a peculiar protection that carries no liability to cross-examination and is not described as evidence, whereas the unsworn testimony of a child witness is expressly treated as evidence; the immunity attaching to an accused's unsworn statement does not extend to a child witness.
Fair Hearing — Right to Cross-Examine Prosecution Witnesses — Article 28 of the Constitution
Under article 28 of the Constitution there can be no fair trial if an accused is denied the right to cross-examine witnesses produced to testify against him, the essence of cross-examination being to test the credibility and veracity of the opposing party's witnesses.

Legislation cited (13)

  • Penal Code Act s.123(1)
  • Trial on Indictments Decree 1971 s.38(3)
  • Trial on Indictments Decree 1971 s.41
  • Trial on Indictments Decree 1971 s.70
  • Trial on Indictments Decree 1971 s.71
  • Trial on Indictments Decree 1971 s.72
  • Evidence Act s.116
  • Evidence Act s.133
  • Evidence Act s.136
  • Oaths Act (cap.52) s.11
  • Criminal Procedure Code Act s.210
  • Magistrates' Courts Act 1970 s.126(1)
  • Constitution of Uganda article 28

Cases cited (3)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1998)
  • Pandya v R (1957) EA 336
  • Gabriel s/o Maholi v R (1960) EA 159
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.