Wakilii

Uganda v Bernard wilson Bareber (Criminal Sessions Case 51 of 1991)

High Court · [1994] UGHC 192 · 1994 Acquittal Entered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance criminal trial on indictment for robbery contrary to sections 272 and 275(2) of the Penal Code Act
Decision
Accused acquitted and discharged

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court acquitted the accused of robbery. The court found that the prosecution failed to prove the use or threatened use of a deadly weapon as no gun was brandished or fired. The identification evidence was unreliable due to contradictions regarding the accused's clothing and proximity to the complainant's home. The doctrine of recent possession could not be applied due to the absence of independent evidence proving the accused's possession of the stolen property. The accused's alibi was not challenged in cross-examination.

Outcome

Accused acquitted and discharged

Facts

On 8 July 1987 at about 11:00 pm, three armed men broke into the home of Joyce Kamanyire in Fyamifura, Rukungiri District. The intruders threatened to shoot if she did not open the door, then forcibly entered. One man slapped the complainant. They took a radio cassette, nine shirts, seven trousers, cash, a suitcase, crockery, cutlery, mattresses, curtains, and other household items totaling about Shs. 150,000. They tied the complainant with banana fibres and locked her inside. She freed herself with her daughter's help and reported to neighbours, identifying the accused as one of the robbers. The following day, a search of the accused's home allegedly recovered some of the stolen property. The accused was arrested and allegedly confessed to participating with three other men. He later denied any involvement and claimed he was at home with his wife who had just delivered.

Issues

  1. Whether the prosecution proved all the essential elements of the offence of robbery beyond reasonable doubt.
  2. Whether there was proof of the use or threatened use of a deadly weapon as required under section 273(2) of the Penal Code Act.
  3. Whether the accused was properly identified as one of the persons who committed the robbery.
  4. Whether the doctrine of recent possession of stolen property applied to connect the accused to the offence.
  5. Whether the accused's defence of alibi raised reasonable doubt.

Orders

  • Accused found not guilty of the offence of robbery as charged.
  • Accused acquitted and ordered to be released immediately unless otherwise lawfully held.

Rules and key headnotes

Robbery — Essential Elements — Use or Threatened Use of Deadly Weapon
For a conviction under section 273(2) of the Penal Code Act, the prosecution must prove the use or threatened use of a deadly weapon at or immediately before or immediately after the theft. Verbal threats to shoot made from a point where the accused cannot be seen, without any gun being brandished or fired, are insufficient to establish this element.
Identification Evidence — Quality and Reliability — Contradictions
Where a single identifying witness gives contradictory evidence regarding material circumstances such as the accused's clothing at the time of arrest and the distance between homes, and where the witness was under severe fear, the court must consider whether the identification is free from the possibility of error. Significant contradictions may render identification evidence unreliable.
Recent Possession — Requirements for Application of Doctrine
The doctrine of recent possession requires proof that the accused was in possession of the stolen property. Where a search is conducted in the absence of the accused, where no independent witnesses from the locality testify, where the accused denies the search occurred, and where the storeman who received the recovered property does not give evidence, the doctrine cannot safely be applied.
Defence of Alibi — Burden of Proof
An accused who raises an alibi does not bear the burden of proving it. It is for the prosecution to destroy or weaken the alibi by adducing evidence placing the accused at the scene of the crime. Where an alibi is not challenged in cross-examination, it may raise reasonable doubt as to the accused's presence at the scene.
Prima Facie Case — Test and Application
A prima facie case is one where on full consideration of the evidence a reasonable tribunal properly directing its mind to the law and evidence could convict if the accused offered no evidence. However, a prima facie case does not mean proof beyond reasonable doubt. A ruling that a prima facie case exists does not preclude acquittal after consideration of the entire evidence including the defence.

Legislation cited (4)

Cases cited (21)

  • Bhatt v R (1957) EA 352
  • Wabiro alias Musa v R (1960) EA 184
  • Uganda v Mafabi & Anor (High Court Criminal Case No. 90 of 1974)
  • R v Achietu (1934) 1 EACA 166
  • Woolmington v DPP [1935] AC 462
  • Vasaja v Uganda (1975) EA
  • Birumba & Anor v Uganda (Criminal Appeal No. 32 of 1989)
  • Abdalla bin Wendo & Anor v R (1966) EA 585
  • George W Kalyesubura v Uganda (Criminal Appeal No. 16 of 1977)
  • Patrick Isimbwa & Anor v Uganda (Criminal Appeal No. 15 of 1994)
  • Bonefasiyo Washiku & Ors v Uganda (Criminal Appeal No. 25 of 1977)
  • Abualla Nabulime & Ors v Uganda (Criminal Appeal No. 9 of 1978)
  • Andrea Obonyo & Ors v Uganda (1962) EA 542
  • Kantilal Jivraj & Anor v R (1961) EA 7
  • DPP v Nasser [1958] 5 WLR 757
  • R v Hassani s/o Mohamed (1948) 15 EACA 121
  • R v Langmead (9 Cox 464)
  • Sekitoleko v Uganda (1967) EA 531
  • Constantino Opel alias Magero v Uganda (Criminal Appeal No. 12 of 1990)
  • Alfred Tajar v Uganda (Criminal Appeal No. 167 of 1969)
  • Bugakari & Ors v Uganda (Criminal Appeal No. 78 of 1989)

Full judgment

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

Uganda v Bernard wilson Bareber (Criminal Sessions Case 51 of 1991) [1994] UGHC 192 (4 June 1994)
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.