Wakilii

Hamuza & Others v Uganda (Criminal Appeal 44 of 2001)

Supreme Court · [2004] UGSC 36 · 2004 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second criminal appeal to the Supreme Court from a Court of Appeal judgment affirming High Court convictions for aggravated robbery
Decision
Appeals of the first, second, fourth and fifth appellants dismissed and their convictions upheld; appeal of the third appellant allowed, his convictions on both counts quashed and sentence set aside, and he ordered set free.

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Holding

The Supreme Court dismissed the appeals of the first, second, fourth and fifth appellants, upholding their convictions for aggravated robbery on counts 2 and 6. The first appellant shared a common intention to rob and could not rely on compulsion under section 16 of the Penal Code Act; the second and fifth appellants were properly convicted on cogent identification evidence; and the fourth appellant's voluntary confession established common intention, an irregular trial within trial having been cured by his participation. The third appellant's appeal was allowed because his conviction rested substantially on an uncorroborated accomplice confession, contrary to the practice requiring corroboration under section 131 of the Evidence Act; his convictions were quashed and he was ordered set free.

Facts

The appellants planned to rob a coffee factory belonging to Sentongo Salongo at Jinja. The fourth appellant hired a vehicle from Equator Tours and Travel Company in Kampala for the purpose. On 7 May 1996 the first and fourth appellants drove to Jinja, where they were joined by the others at the third appellant's home and obtained two pistols. At the factory the first appellant was recognised by workers, so the planned robbery was abandoned. To avoid returning empty-handed, the group (then excluding the third and fourth appellants) proceeded to Kamuli, where it committed a number of robberies and one murder. The appellants were arrested at different places and times. Some made charge and caution statements to police which the trial judge rejected, but he admitted statements they made to a magistrate grade I. Prosecution witnesses identified the second and fifth appellants at the scenes of the robberies, one having previously trained and lived with the second appellant as a policeman.

Issues

  1. Whether the first appellant shared a common intention with the others to commit the robberies.
  2. Whether the first appellant was acting under compulsion within section 16 of the Penal Code Act.
  3. Whether the second appellant's conviction could stand on identification evidence notwithstanding reliance on a co-accused's uncorroborated confession.
  4. Whether the third appellant could be convicted on the uncorroborated confession of an accomplice co-accused.
  5. Whether the fourth appellant's extra-judicial confession was voluntary, whether an irregular trial within trial vitiated it, and whether it established common intention.
  6. Whether the fifth appellant's conviction was properly founded on identification evidence and his alibi rightly rejected.

Orders

  • Appeals of Cpl Kasirye Hamuza (A1), PC Musingo Peter (A2), Ndolerire Fred (A4) and Sgt Kule Dennis (A5) dismissed.
  • Appeal of Nuru Konde Waiswa (A3) allowed.
  • Convictions of Nuru Konde Waiswa on both counts quashed and the sentence imposed on him set aside.
  • Nuru Konde Waiswa to be set free forthwith unless held in prison for some other lawful purpose.

Key headnotes

Criminal Law & Procedure — Common Intention — Liability of a Person Who Facilitates an Offence
A person who hires and drives a vehicle knowing it is to be used for robbery shares a common intention with those who use it to rob, and it is immaterial where the robbery is eventually committed.
Criminal Law & Procedure — Defence of Compulsion — Section 16 Penal Code Act
The defence of compulsion under section 16 of the Penal Code Act is not available where the conduct of the accused before and after the offence is inconsistent with a person acting under compulsion, and threats of future injury do not excuse an offence.
Evidence — Accomplice Evidence — Corroboration — Section 131 Evidence Act
Although section 131 of the Evidence Act permits a conviction on the uncorroborated testimony of an accomplice, the established practice requires corroboration or, in its absence, a warning by the judge of the danger of convicting on such evidence, and a conviction substantially based on an uncorroborated accomplice confession cannot stand.
Evidence — Confession of Co-Accused — Section 28 Evidence Act
Section 28 of the Evidence Act allows a court to take into account a co-accused's confession incriminating a fellow accused tried together, but where the co-accused is also an accomplice the confession requires independent corroboration before it can ground a conviction.
Criminal Law & Procedure — Trial Within Trial — Irregularity Cured by Participation
An irregularity in the conduct of a trial within a trial does not occasion a miscarriage of justice where the accused actively participated in the proceedings and testified, his participation curing the procedural defect.
Evidence — Identification Evidence — Conditions Favouring Correct Identification
A conviction may be sustained on identification evidence, independent of accomplice evidence, where the conditions of identification favour correctness, including prior acquaintance with the accused, adequate light, proximity and duration of observation.

Legislation cited (7)

  • Penal Code Act s.272
  • Penal Code Act s.273(2)
  • Penal Code Act s.183
  • Penal Code Act s.184
  • Penal Code Act s.16
  • Evidence Act s.28
  • Evidence Act s.131

Cases cited (3)

  • Shepherd v R (1988) 86 Cr. App. R. 47
  • Fabiano Obel & Others v Uganda (1965) EA 622
  • R v Mali Kiiza s/o Lusota (1941) 8 EACA 25
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.