Wakilii

Bataringaya v Uganda (Criminal Appeal 132 of 2021)

Court of Appeal · [2023] UGCA 192 · 2023 Conviction Quashed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second criminal appeal to the Court of Appeal from a High Court decision dismissing a first appeal against conviction by a Chief Magistrate's Court for attempted murder
Decision
Conviction quashed and sentence set aside; appellant ordered to be set free immediately unless held on other lawful charges.

Observed later treatment

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Holding

On a second appeal against conviction for attempted murder, the Court of Appeal held that although a second appellate court does not ordinarily re-evaluate evidence, this was an exceptional case warranting re-evaluation. The prosecution case rested on the accomplice evidence of PW1, the actual attacker, which was contradicted by call-data evidence placing him in Kampala rather than at the scene, and by the victim's evidence implicating another, acquitted accused. PW1 first identified the appellant in the dock without any identification parade, despite not knowing him. The court found PW1's evidence so weak that no weight should attach to it, so the appellant's alibi should not have been rejected. Conviction quashed, sentence set aside, and the appellant set free.

Outcome

Conviction quashed and sentence set aside; appellant ordered to be set free immediately unless held on other lawful charges.

Facts

In November 2017 the appellant was alleged to have arranged a plan to harm the victim, PW2 Katureebe, including paying attackers and buying the weapon. On 8 November 2017 PW1 Ssali Geoffrey poured concentrated sulphuric acid on the victim near his home, causing serious injuries. The appellant, charged jointly with four others before a Chief Magistrate's Court, was convicted of attempted murder and sentenced to 14 years; his first appeal to the High Court was dismissed. The prosecution case turned on PW1, the actual attacker, who described being hired by a person he called "Boy D", alleged to be the appellant. PW1 first saw the appellant in the dock, and no identification parade was held. Call-data evidence from PW3 showed the appellant's number was inactive on the day, and that PW1's phone was traced near Kabira Country Club in Kampala, not at the Mbarara scene. The victim's evidence suggested a different, acquitted accused (Tashobya) called out to him before the attack. The appellant raised an alibi that he was at his army base in Zombo.

Issues

  1. Whether the High Court, sitting as a first appellate court, failed to re-evaluate the evidence relating to the appellant's defence of alibi.
  2. Whether the alleged falsehoods, contradictions and inconsistencies in the prosecution evidence went to the root of the prosecution's case.
  3. Whether the Court of Appeal, on a second appeal, should re-evaluate the evidence as an exceptional case.
  4. Whether the accomplice evidence of PW1 required corroboration and was sufficient to establish the appellant's participation.

Orders

  • Grounds 1 and 2 of the appeal succeed.
  • The conviction of the appellant for attempted murder contrary to Section 204(a) of the Penal Code Act, Cap. 120 is quashed.
  • The sentence imposed upon that conviction is set aside.
  • The appellant is to be immediately set free unless held on other lawful charges.

Rules and key headnotes

Criminal Procedure — Second Appeals — Re-evaluation of Evidence in Exceptional Cases
On a second appeal a court does not ordinarily re-evaluate the evidence, but it is obliged to do so in exceptional cases where it is shown that the lower courts failed to evaluate or re-evaluate the evidence or were manifestly wrong on findings of fact.
Criminal Procedure — Defence of Alibi — Burden of Proof
An accused person who sets up an alibi assumes no burden of proving its truth; the burden remains on the prosecution to disprove or destroy the alibi.
Evidence — Accomplice Evidence — Weight and Corroboration
Where the evidence of an accomplice who is the principal prosecution witness is contradicted by other prosecution evidence, such as call data placing him away from the scene, it may be so weak that no weight should be attached to it for the purpose of proving the accused's participation.
Evidence — Identification — Identification Parade and Dock Identification
Where a witness does not know the accused and identifies him only by an alias the accused denies, a pre-trial identification parade should be held; identification of the accused for the first time in the dock in such circumstances is unsatisfactory.
Evidence — Weight of Evidence — Probative Worth and Contradictions
The weight of evidence is its cogency or probative worth in relation to the facts in issue, and depends on the extent to which it is supported or contradicted by other evidence; evidence seriously contradicted by other prosecution evidence should not be given undue weight.

Legislation cited (5)

Cases cited (16)

  • Tito Buhingiro v Uganda (Criminal Appeal No. 8 of 2014)
  • Areet Sam v Uganda (Criminal Appeal No. 20 of 2005)
  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Musoke v Republic [1958] EA 715
  • Woolmington v DPP [1935] AC 462
  • Rwabugande Moses v Uganda (Criminal Appeal No. 25 of 2014)
  • Bamanya and Another v Uganda (Criminal Appeal No. 22 of 2016)
  • Kato Kajubi v Uganda (Criminal Appeal No. 20 of 2014)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Alfred Tajar v Uganda (EACA Criminal Appeal No. 167 of 1969)
  • Uganda v Karmma (Criminal Session Case No. 819 of 2016)
  • Kazawali v Republic (Criminal Appeal No. 11 of 2017)
  • Raphael v Republic [1973] EA 473
  • Ssekitoleko v Uganda [1967] EA 531
  • Mulindwa Samuel v Uganda (Criminal Appeal No. 41 of 2000)
  • Stephen Mugume v Uganda (Criminal Appeal No. 20 of 1995)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bataringaya v Uganda (Criminal Appeal 132 of 2021) [2023] UGCA 192 (1 August 2023)
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.