Wakilii

Okwonga Anthony v Uganda [2002] UGSC 8

Supreme Court · 2002 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal from the Court of Appeal, which had upheld High Court convictions for murder, kidnapping with intent to murder and attempted murder.
Decision
Appeal dismissed; convictions for murder, kidnapping with intent to murder and attempted murder upheld.

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

On a second appeal against convictions for murder, kidnapping with intent to murder and attempted murder, the Supreme Court dismissed the appeal and upheld the convictions. It held that PW1 was properly declared a hostile witness in the trial judge's discretion; that police statements denied by the witnesses could not discredit them without being proved by the recording officers; that the prosecution's contradictions were minor; that failure to call investigating officers was not fatal given other evidence; that the first appellate court's re-evaluation cured the trial judge's flawed treatment of the alibi, which placed the appellant at the scene; and that proceeding with one assessor under section 67(1) of the Trial on Indictment Decree did not nullify the trial.

Facts

In June 1980 the appellant, then an Under Secretary in the Ministry of Internal Affairs, had his home at Angal village, Nebbi District, attacked at night by unknown gunmen. He suspected Jurodano Onen. The next morning he drove, armed with a pistol, to Onen's home and then to the home of Onen's mother, Acelma Giriker, searching for him. Dissatisfied with her answers, he shot Acelma in the arm and shot her daughter, Veneranda Pinyanga, in the groin; Veneranda later died, crying that Okwonga had killed her. Jurodano Onen was arrested by men claiming to be sent by the appellant, taken to Angal football ground, tortured, placed in the boot of the appellant's car and driven away. The appellant denied involvement, raising an alibi that he was in Kampala on 3 June 1980 and only at Angal on 30 June. He claimed the charges were politically motivated to keep him from contesting local council elections. He was tried in 1998–99, some 18–19 years after the events.

Issues

  1. Whether PW1 was properly declared a hostile witness by the trial judge and whether any injustice was thereby caused to the appellant.
  2. Whether the prosecution witnesses' police statements (Exhibits D1–D4), admitted by consent but denied by the witnesses, could be used to discredit their evidence without being proved by the police officers who recorded them.
  3. Whether the inconsistencies and contradictions in the prosecution evidence were minor and explicable by lapse of time.
  4. Whether the failure to call the police officers who investigated the case and arrested the appellant weakened the prosecution case.
  5. Whether the trial judge erred in considering the prosecution case in isolation of the defence and the appellant's alibi, and whether any such error was cured by the Court of Appeal.
  6. Whether any misdirection on the burden of proof occasioned a miscarriage of justice.
  7. Whether the irregularity of the trial proceeding with a single assessor nullified the trial under the Trial on Indictment Decree.
  8. Whether an appeal to the Supreme Court against the severity of the 15-year sentences was competent under section 6(3) of the Judicature Statute 1993.

Orders

  • Appeal dismissed.
  • Convictions on counts I, II and IV upheld.
  • Ground ten, an appeal against the severity of the 15-year sentences, held incompetent under section 6(3) of the Judicature Statute 1993 and not considered.

Key headnotes

Evidence — Hostile Witnesses — Discretion to Permit Cross-Examination of One's Own Witness
A trial judge has discretion to permit a party to cross-examine its own witness as hostile where the witness's testimony contradicts an earlier police statement; the judge must look at the statement to determine the departure, and the exercise of that discretion is not open to appeal save in very exceptional circumstances.
Evidence — Previous Inconsistent Statements — Proof of a Witness's Police Statement
Where a witness denies or challenges a police statement, the statement must be strictly proved by calling the police officer who recorded it before it can be used to discredit the witness; admission by consent without such proof is insufficient and the statement cannot found a contradiction.
Evidence — Exhibits — Distinction Between Exhibits and Articles Marked for Identification
The term 'exhibit' is confined to articles that have been formally proved and admitted in evidence; a document merely received or marked for identification is not an exhibit and cannot be relied on as substantive evidence.
Criminal Procedure — Failure to Call Investigating or Arresting Police Officers
Failure to call the police officers who investigated or arrested the accused is not, as a rule, fatal to a conviction where other available evidence proves the prosecution case to the required standard; whether such police evidence is essential depends on the circumstances of each case.
Criminal Procedure — Alibi — Placing the Accused at the Scene of Crime
Where an accused raises an alibi and the prosecution adduces evidence placing him at the scene of crime, the court must evaluate both versions judiciously and give reasons for accepting one; it is a misdirection to accept the prosecution version and treat the alibi as unsustainable merely by reason of that acceptance.
Criminal Procedure — First Appellate Court — Duty to Re-evaluate Evidence
A first appellate court has a duty to re-appraise the evidence as a whole and reach its own conclusions, bearing in mind that it did not see the witnesses; such re-evaluation can cure errors of the trial court, including a failure to consider the defence before accepting the prosecution evidence.
Criminal Procedure — Assessors — Trial Continuing with a Single Assessor under Section 67(1) of the Trial on Indictment Decree
Under section 67(1) of the Trial on Indictment Decree, where an assessor is from sufficient cause prevented from attending, the trial may lawfully proceed with the aid of the remaining single assessor; by the rule that the plural includes the singular, the word 'assessors' is to be read as 'assessor' as the case may require.

Legislation cited (12)

  • Penal Code Act s.183
  • Penal Code Act s.235(a)
  • Penal Code Act s.272
  • Penal Code Act s.273(2)
  • Penal Code Act s.197(a)
  • Evidence Act s.152
  • Evidence Act s.153
  • Trial on Indictment Decree 1971 s.67(1)
  • Trial on Indictment Decree s.3(1)
  • Judicature Statute 1993 s.6(3)
  • Court of Appeal Rules r.29
  • Interpretation Decree 1976 s.3

Cases cited (22)

  • Penchanan vs R.34 C.W.N. 526: A1930, C.276: 51 C.L.J. 203
  • Ojede s/o Odyek v R [1962] EA 494
  • Kantar Singh Bharaj v Reginam (1953) 20 EACA 134
  • Des Raj Sharma v Reginam (1953) 20 EACA 310
  • Thairu s/o Muharo (1954) EACA 187
  • Amisi & Others v Uganda [1970] EA 662
  • Sydney Golder & Others (1961) 45 Cr App R 5
  • Balala (1914) EA 402
  • Amer v Republic [1972] EA 324
  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Rwaneka v Uganda [1967] EA 768
  • Alfred Bumbo and Others v Uganda (Criminal Appeal No. 28 of 1994)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Suleiman Katusabe v Uganda (Criminal Appeal No. 7 of 1991)
  • Pandya v R [1951] EA 336
  • Ruwala v R [1951] EA 510
  • Okeno v Republic [1972] EA 32
  • Odong Justine v Uganda (Criminal Appeal No. 13 of 2000)
  • Mugisha Joseph v Uganda (Criminal Appeal No. 123 of 1984)
  • Abudu Komakech v Uganda (Criminal Appeal No. 1 of 1988)
  • Obura v Uganda (Criminal Appeal No. 1 of 1981)
  • Kashaija & 2 Others v Uganda [1977] HCB 50
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.