Bwire Wycliffe and Anor v Uganda [2003] UGSC 6

Supreme Court · 2003 Appeal Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second criminal appeal from a Court of Appeal decision confirming a High Court murder conviction and death sentence

Decision

1st appellant's conviction and death sentence upheld; 2nd appellant's death sentence set aside and matter remitted to the Family and Children Court

The full judgment

Read the complete, verbatim text of this judgment.

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 murder convictions and death sentences, the Supreme Court held that a retracted or repudiated confession may found a conviction where the court is fully satisfied it is true, and that under section 28 of the Evidence Act the confessions of co-accused jointly tried may be considered as corroboration. The 1st appellant's appeal was dismissed. The 2nd appellant's appeal succeeded because the prosecution failed to prove he was aged 18 or above when the offence was committed; his unchallenged evidence that he was 20 in 1999 meant he was under 18 in 1996. The death sentence was set aside and the matter remitted to the Family and Children Court.

Facts

On 8 June 1996 the deceased, Joseph Nkuke, left home in Masaka District to collect food and never returned. Days later Abdu Sikyomu was found in possession of the deceased's bicycle and was arrested. He confessed that he and five others, including the two appellants, had killed the deceased and removed his body organs, which were given to one Musomesa for Shs. 150,000. Those implicated were arrested, and the two appellants also confessed to the murder. Six suspects were charged with murder. The 1st appellant's confession described luring the deceased into a forest, his slaughtering, and the removal of the heart, liver and lungs sold to Musomesa. At trial all denied the charge. The appellants and Sikyomu were convicted and sentenced to death. The medical and statement evidence relating to the 2nd appellant's age was inconsistent: a doctor estimated him at approximately 18 in June 1996, while he testified on oath in 1999 that he was 20, evidence not challenged in cross-examination.

Issues

Whether the trial court and Court of Appeal erred in admitting the 1st appellant's retracted and repudiated charge and caution statement and relying on it to convict him.
Whether the charge and caution statements of the co-accused (A2 and A3) could be used under section 28 of the Evidence Act to corroborate the 1st appellant's confession.
Whether the prosecution proved that the 2nd appellant was aged 18 years or above at the time the offence was committed, so as to sustain the death sentence.

Orders

The appeal of the 1st appellant is dismissed.
The appeal of the 2nd appellant is allowed.
The sentence of death against the 2nd appellant is set aside.
The 2nd appellant, Serunga George, is remitted to the Family and Children Court for an appropriate order to be made under section 104(2) of the Children Act.

Key headnotes

Evidence — Confessions — Retracted or repudiated confession

A confession that has been retracted or repudiated may found a conviction where the court, exercising caution, is fully satisfied in all the circumstances that the confession is true; corroboration is usually sought but is not necessary in law.

Evidence — Confessions — Confession of co-accused under section 28 Evidence Act

Where more persons than one are tried jointly for the same offence, a confession by one accused affecting himself and another may be taken into consideration under section 28 of the Evidence Act against that other accused, and may serve as corroboration of that accused's own confession.

Criminal Procedure — Trial within a trial — Cure of premature narration of confession

Permitting a witness to narrate the contents of a confession before a trial within a trial is conducted is an irregularity, but it is cured where a subsequent trial within a trial establishes that the confession was made and was voluntary.

Evidence — Cross-examination — Failure to challenge material evidence

An omission or neglect to challenge evidence in chief on a material or essential point by cross-examination leads to the inference that the evidence is accepted, unless it is inherently or palpably incredible.

Criminal Law & Procedure — Sentencing — Proof of age and the death penalty

A sentence of death cannot stand where the prosecution fails to prove that the accused was aged 18 years or above at the time the offence was committed; in such a case the offender must be remitted to the Family and Children Court for an appropriate order under section 104(2) of the Children Act.

Legislation cited (6)

Penal Code Act s.183
Penal Code Act s.184
Evidence Act s.28
Trial on Indictment Decree 1971 s.104(1)
Trial on Indictment Decree 1971 s.104(2)
Children Act s.104(2)

Cases cited (2)

Tuwamoi v Uganda (1967) EA 84
James Sowabiri and Another v Uganda (Criminal Appeal No. 5 of 1990)

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.