SJ v R (SCA CR 15/2023 & SCA CR MA 05/2024 [2024] (Arising in CR 17/2021) (3 May 2024) (SJ v R (SCA CR 15/2023; SCA CR MA 05/2024 [2024] (Arising in CR 17/2021) (3 May 2024)) [2024] SCCA 7 (3 May 2024)

DR. M. TWOMEY-WOODS JA

(Robinson and Tibatemwa-Ekirikubinza JJA concurring)

Background

1. The appellant, S.J., a 20-year-old man, was charged with three counts of sexual assault on a minor, C.M., aged between 13 and 14 years of age at the time. The facts, as found by the learned trial judge, the Honourable Chief Justice, were that the appellant and the minor became acquainted on Snapchat. They subsequently engaged in sexual intercourse on several occasions. On 2 March 2020, the minor was reported missing by her grandmother and her sister to the minor’s mother, who was at work. A search for the minor was undertaken, and she eventually returned to the family home, having been dropped off by the appellant.  She was taken to the Social Services Department, where she was interviewed by a social worker who subsequently confirmed that she had engaged in sexual intercourse with S.J.  She was examined by a doctor who established that her hymen was not intact.  She was interviewed by police officers at the Child Protection Unit, and S.J. was charged with three counts of sexual assault - two of penetrative sex on two different occasions and one of sexual fondling on another occasion.
2. S.J. has always denied the charges and submitted that he was only on friendly terms with the minor and had only lent her films to watch on a pen drive. He gave evidence to that effect during the trial.
3. The learned Chief Justice believed the minor’s evidence over that of S.J. and convicted him of two charges, sentencing him to five years imprisonment for each offence, to run concurrently.
4. S.J. has appealed his conviction on ten grounds of appeal. Before I set out the grounds of appeal for consideration by this Court, I must examine the breach of procedural matters which are of critical importance in this case.

Breach of procedural rules of the Court of Appeal

5. New rules of the Court of Appeal came into effect on 13 January 2024. In those rules, strict mandatory time limitations are set for the filing of the notice of appeal and the main heads of argument in appeal cases. These timelines are applicable to all parties in an appeal. Specifically, once the ‘record of appeal’ is served on the parties, the appellant has one calendar month to file his ‘heads of argument, and the respondent has two weeks to file its arguments, pursuant to Rule 24(2). In the present appeal, the Attorney General was served with the ‘record of an appeal’ on 14 February 2024 while Counsel for S.J. was served with the brief on 19 February 2024.
6. Neither party filed their heads of argument on time. On 15 April, on the day set down for hearing of the appeal Mrs. Monthy, State Counsel, filed a notice of motion praying for the condonation of the delay in filing her heads of argument. The motion is improperly supported as the affidavit attached to it is sworn by another State Counsel (Ms. Alcindor), who depones therein that her colleague was at a Prosecutor’s Network Forum in Mozambique and instructed her “to prepare this affidavit on her behalf.” She gives the reasons for her colleague’s inability to comply with the Rules as follows:

“…

3. That she only received the skeleton heads of argument on 25th March 2024 and at the time she was involved in the murder trial of R v Kenneth Marengo that was being heard before the learned trial judge Vidot and which completed on 4th April 2024. That simultaneously she had to go through the records of the proceedings in between attending to regular matters of Supreme Court and deal with the other workload in the office.

4. That because of her absence in the jurisdiction as stated above and that she can only file the respondent heads of argument now through me on 11th April 2024.

5. That the delay happened in the circumstances stated above and it was not intentional on her part. This appeal is crucial in ensuring justice is maintained in this case especially in regards to the nature of the case. Hence it is prayed that the delay in finding the heads of argument may be condoned in the interests of justice and the respondent’s heads of argument may be accepted in the matter and the respondent be heard in this appeal.

6. Being the counsel instructed by the counsel appearing for the respondent in the appeal and as disclosed by the records the statement made in paragraphs one to five of the affidavit are true to the best of my knowledge, information and belief.” (sic)

7. I am simply baffled at this feeble attempt to provide ‘good cause” pursuant to Rule 24(2) (j) for the court to exercise its discretion to allow Counsel to be heard. I am equally surprised at Counsel's failure to support her motion by a properly constituted affidavit. It is an opportune time to reiterate that an affidavit is evidence and is subject to the same rules for its admissibility as evidence at a trial. The rules governing the admissibility of affidavits as stated Erne v Brain & Ors (MA 230/2016; MA 290/2015) [2017] SCSC 10 (12 January 2017) is equally applicable in criminal matters: 

 “16. … [A]ffidavits are evidence and are therefore subject to the same rules of admissibility as other evidence. In the present affidavit it may well be that the Deponent may have been told by the Plaintiff what her wishes are but that is hearsay evidence and is inadmissible. The Deponent may however have personal knowledge of some of the facts but that it is not stated in his affidavit. That distinction is essential and will validate or invalidate an affidavit.”

8. Much of the present affidavit is hearsay evidence on the part of Ms. Alcindor and is therefore invalid. In the circumstances no proper application for condoning the delay of State Counsel in filing her heads of argument is before this court.
9. There being no proper application for condoning delay by State Counsel in filing heads of argument, I have no hesitation in applying Rule 24 (1) (j) to find that Ms. Alcindor is not entitled to be heard.
10. With regard to S. J., his heads of argument were also filed out of time and breach Rule 24 (1) (i). His Counsel, at the hearing, prayed that he might be allowed at even that late juncture to apply for the condonation of the day viva voce. Such an application would be in breach of section 26, which sets out the procedure for extensions of time. It was, therefore, rejected. The application of Rule 24(i) woukd deem the appeal abandoned.
11. I have given anxious thought to the fact that this is a criminal matter and concerns a serious offence for which S.J. is serving terms of imprisonment. I have therefore in the interests of justice scrutinised the record of proceedings and the notice of appeal which was properly filed. 

Grounds of appeal

12. S.J. has appealed his conviction on the following ten grounds of appeal.

1. The learned trial judge erred in convicting the Appellant on insufficient and contradictory evidence.
2. The learned trial judge failed to appreciate that the victim was an unreliable witness whose credibility is questionable. She lied throughout the trial.
3. The learned trial judge failed to appreciate that the victim in giving evidence to the court acted under pressure from the mother.
4. The learned trial judge failed to give sufficient weight to the case of the defence. The defense had argued that the victim had a boyfriend which issued the trial judge did not properly address. The trial judge simply brushed aside the evidence of the appellant on this issue.
5. The learned trial judge erred in convicting the appellant solely on the evidence of the victim who is a minor and her evidence was not corroborated by an independent and credible witness.
6. The learned trial judge failed to consider the issue of abuse of process which was noted by the appellant and which which resulted in the appellant receiving an unfair trial.
7. The learned trial judge rightly acquitted the appellant on count two but failed with the same on count one which was essentially a similar offence. Furthermore, the evidence that was adduced in respect of count one was based entirely on hearsay.
8. The learned trial judge erred in convicting the appellant on count 3 when there was no evidence to support the offence. The appellant was convicted on count 3 on the basis that he fondled the vagina of the victim; there is no evidence to support the claim.
9. The learned trial judge failed to consider that the prosecution failed to prove beyond reasonable doubt that an amorous relationship existed between the appellant and the victim.
10. The learned prays this honourable court to allow the appeal by quashing the conviction.

13. Ground 10 is not a ground of appeal and is dismissed without further need for comment. Many of the grounds of appeal are repetitive and allude to the same complaints with the learned trial judge's decision.
14. Grounds 1, 2, and 8 speak to insufficient and unreliable evidence of the minor. Mr. Herminie, Counsel for S.J., has submitted over 14 pages of the details and circumstances of the assault that, according to him, have not been proven. He lists these matters in great detail while reproducing much of the transcript of proceedings. This approach is most unorthodox and unwelcome and breaches Rule 24 (2) (b), (d), and (f).
15. None of these heads of argument has any merit as they rely heavily on the credibility of the witnesses as assessed and preferred by the trial judge. Our jurisprudence is clear on this point. This Court as a criminal court of appeal does not rehear the case on the record.  The findings of a trial judge are to be preferred over that of an appellate court unless these are unsupported, unreliable and/or perverse.[1]
16. Ground 3 refers to ‘pressure on the minor by the mother’. I am unable to follow this argument. If the issue is that the mother had put pressure on the minor to lie, this perhaps could have had some merit. But the thrust of S.C.’s argument is that she encouraged the minor to make a complaint and tell the truth. It is the duty of a mother and the guardian of a minor to ensure her vulnerability and innocence are protected. There is no merit in this ground either.
17. Grounds 4, 7 and 9 complain about the failure of the trial judge to properly consider the defence case. The defence case seems to be a mixture of stating that the minor lied and that she already had a boyfriend. I have already stated that the trial court is the court assessing credibility. The court chose to believe the evidence of the minor over that of S.J which it was entitled to do. I am also unable to follow the complaint about S.J. and the complainant being in an amorous relationship. This was not a relevant fact to be taken into consideration or proven for the offence of the sexual assault by a grown man of a 13-year-old. In any case, no evidence for S.J.’s propositions was adduced. There is therefore no merit in those grounds.  
18. Ground 5 takes issue with the trial court admitting uncorroborated evidence of a minor. The rule about the necessity of corroboration of a complainant in sexual assault cases has long been overruled by the court.[2] There is also no merit in this ground.
19. With regard to ground 6, S.J. complains that he did not get a fair trial. He states that he was not asked for a statement, that the investigation was too short, that he changed lawyers many times, and that the trial were in camera.  I fail to see how any of these matters impinge on his constitutional rights. The record bears out the fact that his numerous lawyers mounted a stiff and comprehensive defence. His rights were not in any way breached. I must finally point out that the holding of proceedings in camera was entirely appropriate and lawful, given the provisions of section 58A of the Criminal Procedure Code which state:

“A court in a criminal proceeding in relation to a sexual offence or an offence against decency or morality before it —

(a)in the case where it is of the opinion that a person who is called as a witness is not an adult, shall; or

(b)in the case where it is of opinion that a person who is called as a witness is an adult and the court considers it necessary for the protection of the privacy of the person or in the interest of morality,

may, direct that all or any person who is not a member or officer of the court or a party to the proceeding or a legal practitioner representing a party to the proceeding or a person otherwise directly concerned with the proceeding be excluded from the court during the taking of the evidence of the person called as a witness.

20. Whilst it may have been preferable for the learned Chief Justice to have made a written direction on this issue, there was nevertheless no breach of S. J.’s rights in this respect. There is no merit in this ground
21. For all these reasons, this appeal fails in its entirety.

Order

22.  The appeal is dismissed. The conviction and the sentence are upheld.

_____________________________

Dr. M. Twomey-Woods, JA.

I concur                                                                       ________________                                       

F. Robinson, JA

I concur                                                                       ________________

                                                                                    Dr. L. Tibatemwa-Ekirikubinza, JA