Bireete Sarah v Uganda (Criminal Appeal 8 of 2016)

Supreme Court · [2020] UGSC 3 · 2020 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second criminal appeal from the Court of Appeal's confirmation of a High Court (Anti-Corruption Division) conviction for embezzlement

Decision

Appeal allowed; conviction for embezzlement quashed and the sentence, refund order and 10-year public-office disqualification set aside

The full judgment

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Holding

Re-evaluating the evidence because the lower courts had not, the majority held that the prosecution failed to prove beyond reasonable doubt that the appellant stole or had access to the embezzled Government funds: she was not a signatory to the account, the money was handed to the Ministry cashier, and no witness testified that it was passed to her. By treating her inability to explain where the funds went as proof of guilt, the Court of Appeal wrongly shifted the burden of proof from the prosecution to the accused. The conviction could not stand. The appeal was allowed, the conviction quashed, and the sentence, refund order and disqualification order set aside. Kisaakye JSC dissented.

Facts

The appellant was the National Coordinator of the International Conference on the Great Lakes Region (ICGLR), based in the Ministry of Foreign Affairs. In 2009 Uganda had paid an excess membership contribution of USD 114,160. The appellant sent an email, attaching a letter said to bear the Permanent Secretary's signature, requesting the Bujumbura secretariat to refund the surplus to an account at Tropical Bank belonging to the Great Lakes Youth League, of which she was President and her sister a signatory. The refund was received in Uganda Shillings (about 223,827,000/=) and withdrawn; UGX 80,000,000 was banked by the Ministry cashier and 4,500,000/= remained, the balance untraced. The appellant was indicted for abuse of office and embezzlement, convicted on both by the High Court, and the Court of Appeal quashed the abuse-of-office conviction but upheld the embezzlement conviction. The appellant was not a signatory to the account and no witness testified that the withdrawn funds were handed to her.

Issues

Whether the appellant should be granted leave to argue grounds 2 and 5, which raised matters not canvassed before the Court of Appeal.
Whether the essential ingredients of the offence of embezzlement under section 19(a)(iii) of the Anti-Corruption Act, in particular that the appellant stole and had access to the funds by virtue of her office, were proved beyond reasonable doubt.
Whether the Court of Appeal failed to re-evaluate the evidence and improperly shifted the burden of proof to the appellant.
Whether the trial judge exhibited bias against the appellant.
Whether the order of compensation of USD 70,160 and the sentence imposed were illegal.

Orders

The conviction for embezzlement is quashed.
The sentence of 10 years imprisonment as well as the order to refund USD 70,160 is set aside.
The order barring the appellant from Public Service for a period of 10 years is also set aside.

Key headnotes

Criminal Law & Procedure — Burden of Proof — Burden Remains on the Prosecution

In a criminal trial the burden of proving every ingredient of the offence beyond reasonable doubt rests on the prosecution throughout and does not shift to the accused; treating an accused's failure to explain incriminating circumstances as proof of guilt improperly reverses that burden.

Criminal Law & Procedure — Embezzlement — Ingredients under Anti-Corruption Act s.19(a)(iii)

To sustain a conviction for embezzlement under section 19(a)(iii) of the Anti-Corruption Act the prosecution must prove that the accused was a government or public-body employee who stole money to which she had access by virtue of her office; proof of involvement in the transactions, without proof that the accused accessed or took the funds, does not establish the offence.

Evidence — Second Appeal — Re-evaluation of Evidence by an Appellate Court

Although a second appellate court does not ordinarily re-evaluate evidence, it is obliged to do so where the courts below failed to evaluate the evidence or are shown to be manifestly wrong on findings of fact.

Criminal Law & Procedure — Second Appeal — New Grounds — Illegality Exception

A ground not canvassed before the lower courts cannot ordinarily be raised on a second appeal, and under section 45 of the Criminal Procedure Code Act a second appeal lies only on matters of law; however, an issue of illegality may be raised at any stage because a court cannot ignore an illegality once it is brought to its attention.

Statutory Interpretation — Court Rules — Inherent Power under Rule 2(2)

The inherent power of the court preserved by Rule 2(2) of the Rules of the Supreme Court to make orders necessary to achieve the ends of justice overrides a specific rule that would otherwise bar a party from introducing new grounds of appeal.

Legislation cited (12)

Anti-Corruption Act s.11
Anti-Corruption Act s.19
Anti-Corruption Act s.19(a)(iii)
Anti-Corruption Act s.46
Anti-Corruption Act s.69
Penal Code Act s.254
Penal Code Act s.268
Criminal Procedure Code Act s.45
Rules of the Supreme Court r.2(2)
Rules of the Supreme Court r.70(1)(a)
Rules of the Supreme Court r.98(a)
Court of Appeal Rules r.36

Cases cited (6)

M/S Fang Min v Belex Tours and Travel Ltd (Civil Appeal No. 6 of 2013)
Imere Deo v Uganda (Civil Appeal No. 16 of 2015)
Makula International Ltd v His Eminence Cardinal Nsubuga & Anor (Civil Appeal No. 4 of 1981)
Areet Sam v Uganda (Civil Appeal No. 20 of 2005)
Mulindwa James v Uganda (Civil Appeal No. 23 of 2014)
Salongo Senoga Sentumbwe v Uganda (Civil Appeal No. 3 of 2014)

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.