The Director of Public Prosecution

CIID/A62/105

March, 2013

18th

The Director of Public Prosecution

Workers House

P.O Box 1550

KAMPALA.

JINJA ROAD POLICE TAR.21/2013 UGANDA VERSES NSENGA UWERA JACKLINE

We received the case file of the above mentioned matter from the Principal State Attorney

(PSA), with a forwarding letter Ref. HQS-CO-044-2013, dated 15th

our concerns, and in which he reiterated his earlier findings and, giving directions that “sufficient

and credible evidence exists to justify preference of murder charges against the present suspect,

and she should be so charged”.

As we argued in our earlier correspondence to you, we find difficulty to implement the decision

of the PSA of preferring the charge of murder against the suspect. In fact, as I, verbally

requested, it would be better that you meet our team, as you did the last time, when we met you,

led by the Inspector General of Police and, after fruitful discussion, we reached agreement on a

way forward.

We acknowledge the advice of the PSA that to prove the offence of murder we must provide

“sufficient and credible evidence” to prove four essential ingredients namely, that (a) there

was a death, (b) that the death was unlawful, (c) that the death was authored by the accused,

and (d) that the accused acted with malice aforethought. As we stated, earlier, while we don’t

have any problem proving ingredients (a) to (c), we are unable to establish the fourth essential

ingredient (d), that in causing death, the accused person acted with ‘Malice Aforethought'.

The evidence on record cannot therefore sustain a murder charge.

Clearly, as we have no eye witness evidence to rely on, this case will succeed or fail on the

basis of circumstantial evidence. The question before us, therefore, is whether or not we have

“sufficient and credible” circumstantial evidence to prove the offence of murder against the

suspect.

To answer this question, it is critical that we appreciate the standard and kind of evidence

we must adduce. In the case of Uganda vs Dr Aggrey Kiyingi, (a case where a husband,

Dr Kiyingi, was charged with the murder of his wife, the late Robinnah Kiyingi), a case, where,

by the way, there was more incriminating evidence against the accused, than is in our possession

in this case, the presiding judge, after noting that the “law implicating the accused persons

was...based on a chain of circumstantial evidence” reiterated the law on circumstantial evidence

as enunciated by Ssekandi J.A, in his lead judgement in AmisiDhatemwa Alias Waibi, criminal

appeal No 23 of 1977 as follows:

“It is true that circumstantial evidence is very often the best evidence. It is evidence of

surrounding circumstances which, by the undersigned coincidence is capable of proving

facts in issue quite accurately, it is no derogation of evidence to say that it is circumstantial;

see R vs Tailor Wever and Donovan, 21 Criminal Appeal R 20.

However it is trite law that circumstantial evidence must always be narrowly examined,

only because evidence of this kind may be fabricated to cast suspicion on another. It is

therefore necessary before drawing the inference of the accused guilt from circumstantial

evidence to be sure that there are no other co existing circumstances, which would weaken

or destroy the inference....

The burden of proof in criminal cases is always upon the prosecution and a case based on a

chain of circumstantial evidence is only as strong as its weakest link”

Further observing that, recently, the Supreme Court reaffirmed the above position of the law in

the case of Janet Mureeba and 2 others Vs Uganda, Supreme Court Criminal Appeal No 13 of

2003 ( theMureeba case) as follows:

“There are many decided cases which set out tests to be applied in relying on

circumstantial evidence to sustain a conviction; the circumstantial evidence must point

irresistibly to the guilt of the accused. In R VsKipkeringArapKoske and Another

(1949) 16 EACE 135, it was stated that in order to justify, on circumstantial evidence, the

inference of guilt, the exculpatory facts must be incompatible with the innocence of the

accused and incapable of explanation upon any other reasonable hypothesis than that

of guilt. That statement of the law was approved by the East African court of Appeal in

Simon MusokeVs R (1958) EA 715 and see the Bogere case”

The Judge then notes that ‘Bogere’s case is instructive on this issue and the court observed that:

“the circumstances must be such as to produce moral certainty to the exclusion of every

reasonable doubt”.

In view of above established case law, it is critical that we subject the evidence on record to the

tests outlined in the abovementioned judgments.

As we pointed out above, we have no problem proving beyond reasonable doubt the other

ingredients of murder. Our problem is to prove the ingredient of the malice aforethought, and

that is where we are in stark disagreement with the PSA, that is our “weakest link”. In fact, the

PSA relies on a number of grounds to argue that the evidence on record establishes the element

of malice aforethought.

One, he observes that “to establish the existence of malice aforethought, courts normally takes

into account, the number of injuries inflicted, the part of the body targeted, the nature of

weapon used, and the conduct of the suspect before, during and after attack’.

He, then, concludes that ‘judging from the evidence on record, it is abundantly clear that the

injuries visited upon the victim were extremely grave in nature and the part of the body upon

which those injuries were inflicted was the victim’s head, which is a delicate region of the

human body by whatever standards’.

While we acknowledge the correctness of his observations, we dispute his interpretation of the

evidence on record. Indeed, his argument presupposes three points:

• That the suspect knew, and could see the person opening the gate

• That she consciously, and deliberately, intended to cause the death of the deceased, or

any other person, and

• That she deliberately aimed/targeted the deceased, at parts of the body that she clearly

knew would cause death.

We do not have evidence on record to support any of the above presuppositions. In fact, the

evidence on record suggests the contrary.

Firstly, in her statement, the accused claimed she could not see the person opening the gate, and

neither did she know who it was opening the gate. We have no evidence, and, indeed, there is

no evidence on record to contradict her version of events. In fact, the reconstruction of the scene

of the incident by experts (a team of structural, material, and traffic engineers) gives her

account credibility. Indeed, in the reconstruction, it was demonstrated that, at the material time

of the incident, and from the position that the suspect was, it was not possible for one see the

person opening the gate. (Noteworthy, there is no evidence suggesting that the suspect knew, in

advance, who was going to open the gate for her.) Therefore, the PSA is not correct to deduce

malice aforethought, premised on a finding that the suspect knew, and targeted the person

opening the gate, let alone, that the person opening the gate was her husband, as that

finding is not supported by evidence on record.

Secondly, we have no evidence to counter the claim of the suspect that what happened was an

accident. She stated that she had left the engine of the car running when she went to press the

bell at the gate, and when she re-entered the vehicle, it suddenly 'lurched' and sped out of control,

ramming the gate as it was being opened, and that she struggled to bring it under control before

it eventually stopped. Again, the reconstruction of the scene of the incident makes her account

probable or at least creates a reasonable doubt in her favour.

As we stated earlier, we relied on a team of experts to reconstruct the scene, and put the suspect's

claim to test. Noteworthy, the vehicle has an electronic throttle, which is very sensitive to the

slightest pressure on the accelerator pedal. In addition, the accelerator and the brake pedal

were covered by a relatively heavy aftermarket floor mat. In repeated experiments to test the

suspect's claim, it was demonstrated that, indeed, the positioning of the floor mat exposed the

vehicle to 'sudden, unintended acceleration' phenomenon, peculiar to millions of Toyota vehicles

worldwide, which have been a subject of official recalls by the manufacturer. In this case, the

slightest pressure on the floor mat, even without depressing the accelerator pedal, had the effect

of speeding off the vehicle, much in the same way it would behave if someone consciously

pressed the accelerator. It was also observed that the handbrake of the vehicle was weak, and

that the vehicle could still accelerate and move, even with the handbrake engaged.

The PSA noted that in the technical report, the vehicle of the suspect was not in the category

of vehicles recalled. However, while it is correct that the particular model in question was not

part of the vehicles recalled, the existence and positioning of the aftermarket floor mat, and the

fact that even just stepping on the mat exerted sufficient pressure on the accelerator to move the

vehicle, makes the account of the suspect that the behaviour of the vehicle was unintended, and

completely out of her control, probable. That the PSA dismisses or disregards or brushes

aside this evidence as erroneous because it raises reasonable doubt in her favour.

Thirdly, again her account, corroborated by other witnesses of her conduct, immediate before,

during and after the incident, does not show evidence of intention to cause death or knowledge

that her action would cause death.

In investigating the conduct of the suspect before, during and after the incident, there is no

evidence suggesting intention to cause death. Police established that, prior to the incident there

was no hostility between the deceased and the suspect. In fact, on the day of the incident, the

deceased and the suspect intended to travel together to visit their child in school. Earlier, the

suspect had asked for money to pay a worker, which the husband readily provided. There is

no evidence from any witness suggesting that the couple had engaged in any fight, quarrel or

disagreement, in the lead up to the incident.

During the incident, when the vehicle ran out of control and smashed through the gate, the

suspect's first reaction, after it had come to a stop, was to call out for help from the husband,

believing that he was, in fact, in the house, and not the person that the vehicle had knocked.

Immediately she realized that it was the husband she had knocked, she, frantically called for

help from neighbors, and endeavored to save the husband's life, by promptly driving him to the

hospital.

The PSA, in his letter, does not at all address himself to this. In fact, we do not have evidence on

the conduct of the suspect, before, during, or after the incident, to support the suggestion that she

purposely intended to cause the death of the deceased, or any other person. Her expressions of

remorse during the funeral service and later suggests otherwise.

Two, addition to the above, the PSA relies on the evidence of Ms MutoniLoretah; and the

evidence of the father of the deceased, one Donati Kananura, to show proof of “marital

acrimony and incessant threats directed towards the deceased by the present suspect”,

and concludes that the “(e)vidence of marital acrimony and incessant threats directed

towards the deceased by the present suspect can reasonably be interpreted as providing the

necessary motive for the commission of this offence”. .

Again, we dispute the inference of the PSA on this matter. Firstly, at the outset, we wish to

advise that we be guided by the judgment in the Dr Aggrey Kiyingi case. In reference to

marital problems being a motive in murder, the judge noted that the prosecution had raised a

“chain of circumstantial evidence” against Dr Aggrey Kiyingi, among which were past threats on

the life of the deceased, and, making reference to the Mureeba case, he observed:

“The law is that past threats on the deceased by his or her assailant can be good evidence

leading to conviction. However, there must be sufficient proximity between the threats

and the occurrence of the death in order to form a transaction....If the threat is too

remote in terms of time and transaction, then it would not constitute circumstances of

the transaction. General expression indicating fear or suspicion, whether of a particular

individual or otherwise and not directly related to the occasion of the death was held (in the

Mureeba case) not to be admissible”.

Accordingly, the evidence of MutoniLoretah, and Mr Donati Kananura suggesting breakdown

of the marriage between the deceased and the suspect cannot be “reasonably interpreted as

providing the necessary motive for the commission of this offence”. There was no sufficient

proximity in terms of time and transaction to constitute circumstances of the transaction. Indeed,

the evidence of Ms MutoniLoretah, (which the PSA relies on) citing 'a rocky marriage of the

victim and the suspect for most of the 12 years she lived with the family' was too remote “in

terms of time and transaction”. There is no evidence of linkage between the rocky marriage

and the incident. Even the evidence of Mr Donati Kananura that he was aware that the couple

had marital problems in the past, which he had tried to settle, and 'he hoped (they) had been

resolved', is too “remote in terms of time and transaction” and cannot be used to infer “motive

for the commission of the offence”. At any rate, even if there was marital discord between the

couple, there is no evidence to suggest that the incident was a direct consequence of the alleged

discord, or that the suspect knowingly rammed into the gate, as a way of getting back at the

deceased, on account of their differences.

Secondly, we dispute the interpretation/inference of the PSA regarding another aspect of the

evidence of Ms Mutoni, in which he notes, 'against this background of marital strife and

acrimony, Mutoni cites specific threats directed against the deceased by the suspect eleven

days before the incident'. In fact, the 'specific threats' refers to an alleged incident on 29th

December, 2012, when Ms Mutoni went to the deceased's house to pick an air ticket. She stated

that, while she was in the sitting room with the deceased, the suspect walked in and accused Ms

Mutoni of being too close to the husband, and coming in between her husband and the children,

and then allegedly told Mutoni that, quote, 'she is capable of doing many things that even

herself is scared of the things she can do and the extreme she can go to'.

To begin with, we cannot assume, without “sufficient and credible” corroboration that this

incident took place or that if it took place, her account of what transpired is correct. Note,

again the extract from the judgment in the Dr Aggrey Kiyingi case, that while circumstantial

evidence is the best evidence, “it is trite law that circumstantial evidence must always be

narrowly examined, only because evidence of this kind may be fabricated to cast suspicion

on another.” Note that the suspect disputes the evidence of Mutoni. So it is the word of Mutoni

against the word of the suspect.

Secondly, even if we were to assume that Mutoni’s account of the event is correct, there is

nothing in the statement of Mutoni that shows or suggests that the threats were aimed at the

deceased. In fact the evidence suggests that it was not a confrontation between the suspect

and her husband, but between the suspect and Ms Mutoni. Indeed, the suspect's anger, and

alleged threat, is directed at Ms Mutoni, and not the deceased. The deceased, if anything, was a

spectator, who, according to Ms Mutoni, later, walked away without saying anything.

Thirdly, as we noted above, even if the threats were directed at the deceased, there is no evidence

that links the incident that caused the death of the deceased to the “specific threats” to justify the

conclusion that it was proximal enough to be a transaction causing death. Indeed, there is no

connection between the alleged threats as stated by Ms Mutoni, and the incident that led to the

death of the deceased.

Three, we dispute the PSA reliance on “dying declaration” attributed to the victim by Joseph

Kananura, Moses Kananura, and Saad Ndangiza, which “point to the suspect as the sole architect

of the present crime’.

Finally, in assessing the evidence on record, we advise that we be guided by the ruling of

the Supreme Court, in the Mureeba case, as quoted earlier in this letter, in which the

court reaffirmed the ruling in R -Vs- KipkeringArapKoske and Another [1949]