Wakilii

Uganda v Oribariho Abdu (Criminal Sessions Case 64 of 1993)

High Court · [1994] UGHC 190 · 1994 Conviction Entered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance criminal trial for two counts of defilement
Decision
Accused convicted on two counts of defilement and sentence to follow

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court convicted the accused on two counts of defilement of girls under 18 years. The court held that the victims' ages were established by their physical appearance and school attendance. Sexual intercourse was proved by the victims' graphic testimony, corroborated by their mother's evidence of blood and swelling. The alleged confession was ruled inadmissible due to inducement and torture. The accused's alibi was rejected as evasive and contradictory. Conviction on uncorroborated child evidence was permissible where the court warned itself and the evidence was truthful and reliable. Conviction entered on both counts.

Outcome

Accused convicted on two counts of defilement and sentence to follow

Facts

On 2 January 1992 at Nyakabungo village, Kabale District, the accused allegedly defiled two girls, Niwagaba Hope (aged 5–8 years) and Nkamushaba Judith (aged 7–18 years). The girls were collecting firewood in a blackwattle plantation when the accused approached them and instructed them to collect sweeping brooms for his sister. He then laid each girl down and had sexual intercourse with each in turn. The girls returned home crying at lunchtime. Their mother examined them and found blood and swelling on their private parts. She reported the matter to the Resistance Committee Chairman, who took the girls to police and then to a doctor. The accused was arrested on 2 January 1992 by the victims' brothers. He alleged torture by police at Kashambya and Kabale police stations before being made to sign a statement. Medical examination on 5 January 1992 found ruptured hymens, fresh wounds, and inflammation in both victims.

Issues

  1. Whether the prosecution proved that the two victims were each under 18 years of age.
  2. Whether the prosecution proved beyond reasonable doubt that unlawful sexual intercourse occurred between the accused and each of the two victims.
  3. Whether a charge and cautioned statement allegedly made by the accused was admissible as a confession.
  4. Whether the defence of alibi raised by the accused created reasonable doubt as to his presence at the scene of the offences.

Orders

  • Accused found guilty of both counts of defilement as charged.
  • Accused convicted on both counts.

Rules and key headnotes

Corroboration — Child Witnesses — Requirement of Corroboration in Sexual Offences
The proviso to section 38(3) of the Trial on Indictments Act, requiring corroboration of unsworn child evidence in prosecutions, is permissive and not mandatory. A court may convict on uncorroborated child evidence if the court warns itself of the need for corroboration, the evidence appears truthful, and the possibility of error has been excluded by the circumstances of the case.
Corroboration — Evidence Requiring Corroboration Cannot Corroborate Other Evidence Also Requiring Corroboration
Evidence which itself requires corroboration cannot provide corroboration for other evidence also requiring corroboration. In a case involving two child witnesses, the unsworn evidence of one child cannot corroborate the unsworn evidence of the other child.
Confessions — Admissibility — Inducement — Voluntariness
A confession is admissible only if made voluntarily without violence, force, threat, inducement, or promise calculated to cause an untrue confession to be made. Where a police officer tells an accused not to hide anything or fear regarding the matter because both speak the same language, this amounts to an inducement rendering the confession inadmissible, particularly where the accused was brought under escort and was within the walls of a police station.
Confessions — Repudiation — Corroboration Required
Where evidence of a confession contains stigma (such as police testimony of identification later changed without explanation) and has been repudiated in court by the accused with allegations of torture, the confession must be corroborated by other independent evidence in material respects. The failure to call a police escort who could counter the accused's allegations of torture renders the confession inadmissible.
Defilement — Proof of Age — Physical Appearance and Circumstances
The age of a victim in a defilement case may be proved by a birth certificate with identification, or by someone who knows the victim. Where the parents are illiterate and cannot state ages, the court may rely on its observation of the physical appearance of the victim and the victim's own evidence of school attendance and class level to determine whether the victim is under 18 years.
Defilement — Proof of Sexual Intercourse — Slightest Penetration
To establish the commission of defilement, the prosecution must adduce evidence of the slightest penetration. It is not necessary to prove that the hymen was ruptured. Medical evidence and opinion, while of great help, are not binding on the court, which may act on other available evidence to reach a conclusion.
Defence of Alibi — Burden of Proof Remains on Prosecution
Where the defence of alibi materialises, the burden of proving that the accused was at the scene of the crime does not shift from the prosecution. However, the accused should place before the court by cross-examination of prosecution witnesses or by evidence-in-chief such material as makes the alibi a live issue. It is then for the prosecution to eliminate the issue and prove the constituents of the offence charged.

Legislation cited (6)

Cases cited (13)

  • ARCHBOLD (53rd Ed.) p.407
  • Quango Otolito v R (1959) EA
  • Tuwamoi v Uganda (1987) EA 84
  • Woolmington v DPP (1935) AC 462
  • R v Achietu (1934) EACA 166
  • R v Cox (1898) 1 QBD 179
  • ARCHBOLD'S "CRIMINAL PLEADINGS EVIDENCE AND PRACTICE" (38th Ed.) paragraph 2878
  • Ellis v S (1965) EA
  • Tutu v R (1934) 1 EACA 185
  • R v Baskerville (1916) 2 KB 658
  • Chilla v R (1967) EA 722
  • MORRIS "EVIDENCE IN EAST AFRICA" page 134
  • SALSBURY'S LAWS OF ENGLAND (supra) paragraph 358

Full judgment

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Uganda v Oribariho Abdu (Criminal Sessions Case 64 of 1993) [1994] UGHC 190 (25 May 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.