Birembo Sebastian and Anor v Uganda [2002] UGSC 40

Supreme Court · 2002 Appeal Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second criminal appeal to the Supreme Court from a Court of Appeal decision dismissing an appeal against a High Court conviction for murder and sentence of death

Decision

Conviction for murder upheld; death sentence set aside and case remitted to the Family and Children Court for an appropriate sentence, with the appellants held in safe custody in the meantime.

The full judgment

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Holding

The Supreme Court dismissed the appeal against conviction for murder, holding that the circumstantial evidence pointed irresistibly to the appellants' guilt, the alibi was properly destroyed by evidence placing the first appellant at the scene, and common intention was established. The first appellant's incriminating statement to a police officer was admissible under section 29A of the Evidence Act as information leading to the discovery of a fact. However, the appeal against sentence succeeded: the medical (dental) evidence did not prove beyond reasonable doubt that the appellants were 18 years or older when the offence was committed, so the death sentence could not stand. The case was remitted to the Family and Children Court for appropriate sentence.

Facts

The deceased was an agent of a coffee trader (PW5) from whom he collected Shs. 45,000, a bicycle, a kaveera (polythene) and a weighing scale to buy coffee from the appellants, who were his villagemates. The second appellant came to the deceased's home and took him to the first appellant's home where coffee was said to be kept; the deceased left with the money, bicycle, kaveera and weighing scale. A neighbour (PW3) saw both appellants in the deceased's company that morning. The deceased never returned; his bicycle was found abandoned the next day, and two days later his body was found buried in a shallow pit at the boundary of the first appellant's banana garden. Acting on information from the first appellant, a police officer (PW6) recovered the hoe used to dig the grave; on information from the second appellant, part of the robbed money was recovered from a radio. Both appellants denied involvement in unsworn statements.

Issues

Whether the circumstantial evidence was sufficient to establish the guilt of the appellants for murder.
Whether the first appellant's defence of alibi had been properly disproved.
Whether the deceased was killed by the two appellants jointly pursuant to a common intention.
Whether the incriminating information given by the first appellant to a police officer was admissible as information leading to the discovery of a fact.
Whether the sentence of death was properly confirmed where the prosecution had not established beyond reasonable doubt that the appellants were 18 years or older at the time the offence was committed.

Orders

The appeal by both appellants succeeds in part.
The appeal against conviction fails and is dismissed.
The appeal against sentence succeeds and the sentence of death is set aside.
The case is remitted to the Family and Children Court to impose an appropriate sentence.
In the meantime the appellants shall be detained in safe custody in an appropriate place.

Key headnotes

Criminal Evidence — Circumstantial Evidence — Inference of Guilt

A conviction may rest on circumstantial evidence where the inculpatory facts are incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis, and there are no co-existing circumstances weakening the irresistible inference of guilt.

Criminal Evidence — Confessions — Information Leading to Discovery of a Fact

Incriminating information given by an accused to a police officer is admissible under section 29A of the Evidence Act, notwithstanding that it amounts to a confession made to a police constable, where it leads to the discovery of a fact such as the location of the body or the murder weapon.

Defences — Alibi — Displacement by Evidence Placing Accused at the Scene

A defence of alibi is destroyed where the prosecution evidence squarely places the accused at the scene of the crime, and a failure to expressly address it does not vitiate the conviction where the evidence of guilt is overwhelming.

Parties to Offences — Common Intention — Inference from Conduct

A common intention to commit an offence may be inferred from the concerted conduct of the accused, including a prior arrangement and a planned plot to rob and kill the deceased.

Sentencing — Death Sentence — Proof of Age of Offender

A sentence of death cannot be imposed where it is not proved beyond reasonable doubt that the offender was at least eighteen years of age at the time the offence was committed; medical estimation of age that cannot exclude the offender being under eighteen is insufficient, and the offender must instead be dealt with under the relevant juvenile-sentencing provisions.

Documentary Evidence — Post-mortem Report Admitted by Consent

A party who admits a post-mortem report by consent cannot later complain about its contents or the absence of particular findings, having forgone the opportunity to cross-examine the doctor who performed the autopsy.

Legislation cited (7)

Penal Code Act s.183
Penal Code Act s.272
Penal Code Act s.273(2)
Evidence Act s.29A
Trial on Indictments Decree 1971 s.104
Family and Children Statute 2000 s.95
Family and Children Statute 2000 s.105

Cases cited (2)

Musoke v R (1957) EA 715
Babyebuza Swaibu v Uganda (Criminal Appeal No. 99 of 1999)

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.