Samwel v. R. Crim. App. 440-A-71; 22/2/72; Bramble, J.

Samwel v. R. Crim. App. 440-A-71; 22/2/72; Bramble, J.

The appellant was convicted of Robbery with violence c/ss 285 and 286 of the Penal Code. The trial court found that at 7.30 p.m. on the 13^th April, 1971 a gang armed with firearms and a panga went into a shop at Uganda Ltd. wounded one person and stole Shs. 100/=; the appellant was identified as one of the robbers; when an alarm was raised the robbers ran and escaped in a land rover; a Taxi driver chased it and saw the number plate ARD 123; a report was made to the police and they found out that this vehicle belonged to the appellant; at 10.00 p. m.  they went to his home and saw the same vehicle parked outside his house; when the appellant was questioned he said that the vehicle that day and had returned from work with it at about 5.30 p. m; he remained in his house with his family and went to bed about 9.30 p. m leaving his wife in the kitchen. She supported him. A defence witness who carried on a shop in front of the appellant’s house saw him come home about 6.00 p. m and did not see him leave up to 9.30 p. m. He stated that the vehicle was parked in front of the shop and he would have seen if it was moved. The appellant was convicted on this circumstantial evidence.

            Held: “The appellant had set up an alibi which was not considered at all in the judgment. There was nothing in the prosecution’s case to rebut the evidence of the appellant as to his whereabouts at the relevant time and at its lowest this should have raised reasonable doubts as to his guilt.” (2) The judge quoted trial magistrate’s observations ‘the vehicle could not have gone on its own but possibly with the permission of the (appellant). It follows without doubt that if he did not go there alone he gave the switch of his vehicle to a certain man or group of people, but since he has not pointed out the same it can from the circumstances be reasonably inferred that he drove the vehicle himself to Unga Ltd. on the 13/7/71 at around 7.30 p. m.’ – and held that “the trial magistrate misdirected himself in that the burden is on the prosecution to prove beyond reasonable doubt that an accused is guilty and not on an accused to prove his innocence. The (trial magistrate’s observations) concede that the evidence admits of several possibilities. In the case of Republic vs. Kipbering arp Kroke and another (1949) 16 E.A.C.A. 135 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 upon any other reasonable hypothesis that that of his guilt. The burden of proving facts which justify the drawing of this inference from the facts to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifted to the accused.’ (3) “The non-direction and mis-direction are fatal and I will allow the appeal, quash the conviction and sentence and order that the appellant be immediately released unless otherwise lawfully held.”