Last updated on August 16th, 2024 at 10:22 am
Topic: Aggravated Robbery, Identification Parade, Attempted Robbery, Assessor’s Oath
Date of Judgment: 14 June 2024
Court: Court of Appeal of Uganda at Kampala
Case Number/Citation: Criminal Appeal No. 479 of 2020, 2024 UGCA 146
Judge: Justices; Richard Buteera, DCJ; Irene Mulyagonja, JA; Monica Mugenyi
Summary Facts of the Case
Kyambadde George Robert, along with Kalema Peter and Katende Dickson, was indicted for the offense of aggravated robbery.
On 28th June 2017, on Luthuli Avenue in Kampala, the appellant and others attacked Kigenyi Alone and Ndabaretse Gideon, who were transporting money to a bank.
The assailants, including the appellant who was armed with a gun, robbed them of UGX 40,000,000/= and injured Kigenyi.
The appellant was convicted and sentenced to 25 years, 6 months, and 13 days of imprisonment on 3rd February 2020.
Legal Issues Before the Court
- Whether the trial judge properly evaluated the evidence before convicting the appellant.
- Whether the use of unsworn assessors in the trial caused a miscarriage of justice.
- Whether the sentence of 25 years imprisonment was manifestly harsh and excessive.
Decision of the Court
The Court of Appeal quashed the conviction for aggravated robbery and substituted it with a conviction on two counts of attempted aggravated robbery.
The sentence was adjusted to 10 years’ imprisonment from the date of the original conviction.
The court found that the identification evidence of the appellant was not reliable due to inconsistencies and the unprofessional conduct of the identification parade specifically that the identification parade appeared to have been prepared for another witness other than the victims, the police officer did not make a careful note after the parade, and that the witnesses did not sign the identification parade form.
The omission to administer the assessors’ oath does not invalidate the trial and does not result in a miscarriage of justice.
The circumstantial evidence was therefore insufficient to support a conviction for aggravated robbery but was adequate for the conviction of attempted aggravated robbery.
The Court seized its powers under Rule 32(1) of the Court of Appeal Rules and Section 87 of the Trial on Indictments Act to replace the conviction of aggravated robbery with the cognate offense of attempted aggravated robbery.
Since the conviction of aggravated robbery was quashed, the Court did not find it necessary to consider the harshness or otherwise of the sentence. It re-sentenced the appellant to 6 years imprisonment for each of the two attempts of aggravated robbery with the sentences having to run consecutively minus the 2 years already spent on remand.
Key Quote: “ In the absence of evidence to prove that the weapons that were found in the possession of the suspected robbers, including the Appellant, were indeed the weapons that were used in the robbery by assailants who attacked PW1 and PW2 on the 28th June 2017, we find that there was insufficient circumstantial evidence to place the Appellant at the scene of the crime in this case. The inculpatory facts are not consistent with the guilt of the Appellant and we have no other alternative but to acquit him of the offence of aggravated robbery” – Court of Appeal
Law Applied by the Court:
- Sections 285 and 286 of the Penal Code Act (Aggravated Robbery)
- Section 386 of the Penal Code Act (Attempts to Commit Offences)
- Section 11 of the Judicature Act: Powers of Court to re-sentence the Appellant
- Sgt Baluku Samuel & PC Walusa Joshua v. Uganda, Criminal Appeal No. 21 of 2014, Ssentale v. Uganda [1968] EA 365, Stephen Mugume v. Uganda, Criminal Appeal No. 20 of 1995 (Supreme Court); Guidelines of conducting an identification parade including that the Police officer should: Make a careful note after each witness leaves the Parade, recording whether the witness identifies or other circumstances and at the termination of the Parade or during the Parade ask the accused if he is satisfied that the Parade is being conducted in a fair manner and make a note of his reply.
Counsel on Record
- For the Appellant: Ms. Shamim Nalule (State Brief)
- For the Respondent: Ms. Faith Turumanya, Assistant DPP
Conclusion
This judgment emphasizes the importance of carrying out identification parades properly in adherence to the established procedures. Compare it with this.
It also highlights the court’s ability to convict for an offense not charged based on the interconnectedness of facts and the evidence between the offense charged and the cognate offence.
