THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

HCT-00-CR-SC-0301 OF 2010

UGANDA ....................................................................... PROSECUTOR

VERSUS

OCHWO LASTON .............................................................. ACCUSED

Before: Hon. Lady Justice Monica K. Mugenyi

JUDGMENT

The accused, Laston Ochwo, was indicted for the offence of aggravated
defilement contrary to section 129(3) and (4)(a) of the Penal Code Act. The
brief facts giving rise to this indictment are that on 4 th April 2009 the
accused allegedly performed a sexual act on a one Nyakecho Agnes, a girl
below the age of 14 years at Kigoowa village, Kampala District. The accused
denied the charges and pleaded not guilty thereto.

The ingredients that constitute the offence in issue presently are first, the
performance of a sexual act upon the alleged victim and, secondly, the victim
should have been under 14 years old at the time. It is well settled law that
the burden of proof in criminal proceedings such as the present one lies
squarely with the Prosecution and generally, the defences available to an
accused person notwithstanding, that burden does not shift to the accused
at any stage of the proceedings. Furthermore, the prosecution is required to
prove all the ingredients of the alleged offence, as well as the accused’s
participation therein beyond reasonable doubt. See Woolmington vs. DPP

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(1993) AC 462, Okale vs. Republic (1965) EA 55 and Miller vs. Minister of
Pensions [1947] 2 All ER 372 at 373.

In the present case Police Forms 3 and 24 were admitted in evidence as Exh.
P1 and P2 respectively pursuant to a Memorandum of Agreed Facts dated 5 th
March 2012. Exh. P1 reported that the victim was ‘less than 15 years old’ and
had been subjected to a recent sexual act. This admitted evidence does
establish the fact that a sexual act was performed on the victim. However,
given that the date of this document was not very legible, the said document
does not shed light on whether or not the sexual act that was performed on
the victim is the one in issue presently. Further, Exh. P1 falls short on proof
of the victim’s age. A medical finding that the victim was under 15 years of
age would not prove to the required standard that she was under 14 years of
age as by law prescribed. I therefore find that the medical evidence
contained in Exh. P1 does not prove either ingredient of the present offence
to the required standard and revert to the oral evidence for a determination
of the same.

Given that the victim’s age is in issue I propose to commence with a

determination thereof prior to consideration of the ingredient of a sexual
act, which I shall address concurrently with the alleged participation of the
accused.

PW1 (the complainant) testified that her daughter (PW2) was 10 years old at
the time of the present trial but 7 years old at the time she (PW2) was
defiled. At trial PW2 testified that she was 10 years old. This would place
her at 7 years old at the time of the alleged defilement in 2009. The accused
did not question PW2’s age. In submissions learned Defence Counsel simply
contended that the entry of ‘less than 15 years’ rather than an approximate
age rendered the medical report too weak to be relied upon. I quite agree
with learned defence counsel on this point. Nonetheless, court did have
opportunity to observe the victim at trial and noted that, while she was a
fairly big bodied child, she did appear to be under 14 years old at the time.
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Therefore she would certainly have been under 14 years old 3 years ago when
the alleged defilement occurred. I am satisfied, therefore that PW2 was
under 14 years at the time of her defilement and do find that the prosecution
has proved this ingredient of aggravated defilement beyond reasonable
doubt.

On the question of the alleged sexual act, as well as the accused’s

participation therein, PW2 testified that she was defiled by the accused on
the night of 4th April 2009. She stated that the accused lay on top of her and
put something inside her. She further testified that at the material time the
accused lived in her parents’ home where she too lived, and had lived with
her family for about 7 months. The witness testified on oath pursuant to the
findings of a voire dire test. PW1, on her part, testified that on the night in
question she returned to her home from visiting relations upcountry and,
upon opening the door to the house, saw the accused running out of the
room where PW2 was sleeping. Upon entering the room she found the child
soaked in semen and later observed some semen around her private parts.
On the other hand, the accused gave sworn evidence in which he denied all
the allegations against him and attributed the present proceedings to a
grudge that PW1 held against him. He conceded that he was present in the
house where the defilement allegedly took place on the night in question,
and contended that while the victim (PW2) would ordinarily have had no
reason to tell lies on oath against him she could have done so in support of
her mother’s allegedly vendetta-laden agenda.

Section 129(4)(a) of the Penal Code defines a sexual act to include

penetration of a person’s sexual organ by another sexual organ however
slight the penetration. In the present case the issue of penetration, as well as
the purported identification of the accused were attested to by PW2, a child
of tender years. I therefore propose to address myself to the legal position
on child evidence and the evidence of a single identification witness prior to
an evaluation of PW2’s evidence.
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Section 40(3) of the Trial on Indictment Act states as follows on the question
of child evidence:

“... where evidence admitted by virtue of this subsection is given

on behalf of the prosecution, the accused shall not be liable to be
convicted unless the evidence is corroborated by some other
material evidence in support thereof implicating him or her.”

The import of the foregoing statutory provision would appear to be that

generally the evidence of a child prosecution witness requires corroboration
before being relied upon for a conviction. See also Francisco Matovu vs. R
(1961) EA 260 (Court of Appeal).

Be that as it may, in the case of Mukasa Everisto vs Uganda Criminal

Appeal No 43 of 2000 (Supreme Court), it was held that evidence of a child
of tender years that was given on oath did not necessarily require
corroboration. Further, in the later case of Private Wepukhulu Nyunguli
vs Uganda Crim. App. No. 21 of 2001 (Supreme Court) it was held that
‘normally in sexual offences the victim’s evidence is the best proof of
penetration and identification.’

In the present case, PW2 gave evidence on oath therefore this evidence
would not necessarily require corroboration. In addition to being a child
witness, PW2 was the victim of the alleged aggravated defilement. Her
evidence was quite explicit on the issue of penetration. She testified that
something was placed in her vagina on the night of 4 th April 2009. As the
victim of that sexual act who testified on oath and was subjected to the
rigours of cross examination, PW2’s evidence is indeed the best proof of
penetration and need not require corroboration in order to secure a
conviction. I am therefore satisfied that the prosecution has proved the fact
of penetration beyond reasonable doubt. Given that the age of the victim
thereof was earlier hereinabove found to be under 14 years of age, I do find

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that the prosecution has proved the offence of aggravated defilement
contrary to section 129(3) and (4)(a) beyond reasonable doubt.

The question then is whether or not the accused was responsible for or did
participate in the proven aggravated defilement. It is trite law that court can
convict on the evidence of a single identification witness, such as PW2, albeit
after warning itself and the assessors of the special need for caution before
convicting on reliance of the correctness of the identification. The reason for
special need for caution is that there is a possibility that the witness might
be mistaken. See Abdala Nabulere & Another vs Uganda Crim. Appeal
No. 9 of 1978 and Christopher Byagonza vs Uganda Crim. Appeal No. 25
of 1997.

I am, therefore, mindful of the need for caution (and do so caution myself)
before I rely on PW2’s identification evidence for a conviction. Although, as
expounded in Private Wepukhulu Nyunguli vs Uganda (supra), the
victim’s evidence is the best proof of identification in sexual offences such
evidence should, in my view, be subjected to the test of correct identification
to ascertain its accuracy. The test of correct identification was outlined in
Abdala Nabulere & Another vs Uganda (supra) as follows:
“The court must closely examine the circumstances in which the
identification was made. These include the length of time the
accused was under observation, the distance between the
witness and the accused, the lighting and the familiarity of the
witness with the accused. All these factors go to the quality of
the identification evidence. If the quality is good then the
danger of mistaken identity is reduced. The poorer the quality,
the greater the danger.”

In the present case, PW2 did not testify to the source of light that was
available to her for identification purposes or the length of time the accused
was under her observation. While this court takes cognisance of the fact
that a sexual act such as has been proved in the present case does occur with
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very close proximity between a victim and his/ her assailant, in the absence
of evidence on the lighting that was available and the length of time such
assailant was under scrutiny the accuracy of the purported identification is
compromised. I therefore find that the direct evidence adduced by PW2 did
not prove the alleged participation of the accused beyond reasonable doubt.

Be that as it may, it is trite law that since many crimes are committed in
secrecy, it is inevitable that in a criminal trial, direct proof of guilt is often
lacking and a great deal of the evidence is indirect and circumstantial. In the
absence of evidence directly proving the facts in issue, the defendant may
even be convicted solely on circumstantial evidence. See Halsbury’s Laws
of England (2006) p. 744.

Further, in the case of Mureeba Janet & Others vs Uganda Crim. Appeal
No. 13 of 2003 (Supreme Court), their Lordships cited with approval the
decision in R. vs Kipkering Arap Koske & Another (1949) 16 EACA 135,
where it was held that ‘in order to justify, on circumstantial evidence,
the inference of guilt, the inculpatory facts must be incompatible with
the innocence of the accused and incapable of explanation on any
other reasonable hypothesis than that of guilt.’

In the present case, it was the evidence of PW1 that she saw the accused
running away from the room where PW2 was sleeping; she then found PW2
soaked in semen and later observed semen around the child’s private parts.
The same witness testified that PW2 told her that while she (PW1) went to
seek the help of the neighbours the accused cleaned off some of the semen
on the child. PW2 also attested to this action by the accused in her
evidence. The accused, on his part, conceded to having been at the seen of
crime on the night in question. In my view, in so far as it attested to the
accused having been at the scene of crime and his attempt to erase evidence
of the sexual act performed on PW2, the foregoing circumstantial evidence
does point to the culpability of the accused in the present case; is

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incompatible with the innocence of the accused, and incapable of
explanation on any other reasonable hypothesis than that of guilt.

Before I take leave of this issue I shall address the inconsistencies in the
prosecution evidence that were highlighted by learned Defence Counsel. He
contended that the name ‘Sida’ that PW2 attributed to her defiler was not
the accused’s name and therefore another person not the accused was
responsible for her defilement. With due respect to learned Counsel, the
name she referred him by notwithstanding, at the trial PW2 clearly
identified the accused as the person she attributed that name to. The
accused himself also conceded that he had heard people calling him ‘Sida’
even though it was not his name.

In the final result, I am satisfied that the prosecution has proved the offence
of aggravated defilement against the accused – Laston Ochwo beyond
reasonable doubt. I find the accused guilty of aggravated defilement
contrary to section 129(3) and (4) (a) of the Penal Code Act, and do convict
him of the offence as charged.

Monica K. Mugenyi
Judge

19th March, 2012