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State – Uwera Guilty of Murder or Manslaughter

In prosecution’s closing arguments on Friday, Principal State Attorney Susan Okalany spent an hour trying to sway presiding Justice Duncan Gaswaga to convict Jacqueline Uwera Nsenga for murdering her husband Juvenal Nsenga in January last year.

Siraje Lubwama and Derrick Kiyonga recorded Okalany’s submission.

My lord, the accused is indicted for the murder of her husband, Juvenal Nsenga, contrary to section 188 and 189 of the Penal Code Act. It is the prosecution’s case that the accused, during the night of 10th January 2013, while at their residence at Plot 6 Muzindalo Close, Bugolobi, with malice aforethought, caused the death of her husband by knowingly and willfully driving into the closed gate of their residence, knocking and fatally injuring him.

The deceased, died of the same injuries a few hours later at Paragon hospital, Bugolobi.

Burden:

The burden of proving the guilt of the accused and the ingredients of the offence with which the accused is charged rests on the prosecution. The accused has no burden to prove her innocence at all or even disprove the prosecution testimony.

This burden does not shift to the accused at all except in a few statutory cases, and the standard of proof is beyond a reasonable doubt. The accused should not be convicted on the weakness of her defence but on the strength of the prosecution case (cited authority).

Murder:

The prosecution, under section 188 of the PCA has to prove the following ingredients in a case of murder, beyond reasonable doubt:

There must be death of a person, the accused participated in causing or caused the death, that the accused had malice aforethought, the death must be unlawful.

Ingredient:

This ingredient is uncontested by the defence. The fact of death is proven by the evidence of PW 1, Moses Byaruhanga, the pathologist who carried out the postmortem examination on the late Juvenal Nsenga on 1212013. The report confirms death as a result of multiple blunt force injuries.

The evidence of PW 2 Innocent Bisangwa, PW 3 Donati Kananura, PW 4 Joseph Kananura, PW 5 Moses Ndizeye, PW 6 (Saad Ndagiza), PW 9 DAIP Christine Nabala, the accused, among others.

Cause of death:

The accused caused the death this ingredient was also not contested by the defence. Byaruhanga testified that the deceased died from multiple blunt force injuries.

These included closed fractures, proximal skin tags (heaping of the skin that showed that the body was dragged and the skin came off), and linear friction abrasions meaning the body was dragged over a rough surface on the back and tyre-pattern injuries indicating that the tyre went over the body. The ribs were fractured, the lungs were damaged and there was, therefore, accumulation of blood in the chest.

The above findings were consistent with the evidence of Bisangwa, Kananura Snr, and Joseph Kananura and Moses Ndizeye who testified that the accused informed them that she had knocked the deceased with her car.

These very witnesses also testified that the deceased told them that his wife had knocked him in his own home. The fact was confirmed by the evidence of the investigators, including the PW 9, who tendered pictures showing tyre marks on the body. The accused herself admits having knocked the deceased in her testimony before the court and in her recorded statements to the police.

Malice aforethought:

Section 191 of the PCA provides that malice aforethought is established by evidence providing either of the following circumstances: an intention to cause the death of any person, whether such a person is the person actually killed or not or knowledge that the act or omission will probably cause the death of some person, whether such a person is the person actually killed or not, although such knowledge is accompanied by the indifference whether death is caused or not, or by a wish that it may not be caused.

The prosecution submits that malice aforethought has been established in both of the above two conditions, by the circumstantial evidence adduced in court by the prosecution witnesses (cites authority).

Intention:

The deceased while at Paragon hospital and before his death made remarks that amount to dying declarations. The deceased told his father Kananura that it was Jackie who knocked him and not the gate. Joseph informed court that when he tried to recount to his father, Jackie’s explanation that it was the gate that knocked him, the deceased emphatically said “NO”.

The deceased told Joseph that “my wife has killed me in my own home”. Under cross examination, when put to task over what the deceased had told him, Joseph stated as follows: “my wife has killed me in my own home”. He said: “it’s my first time to open for my wife the gate and she has killed me in my own compound.”

He told Ndizeye the same thing, “My wife has killed me in my own home”. Ndizeye reinforced this under cross examination and in his written statement, in which he told the police that “I wish to add that the deceased said he was knocked by the wife as he was opening the gate”.

The deceased told Ndizeye that “see what my wife has done to me”.

It is clear that the deceased was shocked by the actions of his wife, and kept repeating the same thing consistently to the witnesses above. There is a distinction when one says “see what my wife has done to me” and when one says it was the gate that hit him. Indeed, the deceased drew a clear distinction himself when he said his wife and not the gate knocked him.

The words of the deceased should be understood in their ordinary and clear meaning, that the deceased made a dying declaration that his wife was the cause of his condition. His statements show that he believed his wife intentionally knocked him. This is derived from the deceased’s conduct towards the accused, he treated her with suspicion, demanding that his keys and phone be retrieved from her by Ndizeye and asking her to leave the room.

The defence suggested in the cross examination that it was because they were going to insert a catheter. We humbly disagree. Husband and wife are ideally meant to be one with no limits to privacy even when they are naked. He should have actually been more comfortable with her in the room. His ordering her out speaks volumes (cites another authority).

Injuries:

Evidence of PW 1, PW 4, and PW 6, among others, was to the effect that the deceased suffered extensive injuries. His left ear was cut off, his arm and leg were broken, the car ran over his body leaving tyre marks, his ribs were fractured, lungs damaged, there was internal bleeding with blood found collected in his chest, his skin had been peeled off as a result of the dragging of his body on a rough surface.

Indeed, these witnesses named above and PW 12 Richard Ouma, Richard and Jessica Namwanje testified that the deceased was groaning in pain as a result of the injuries. The injuries were so grave that in about five hours, the deceased passed on.

The blunt force that caused the injuries was the accused person’s car. Certainly a dangerous machine when used in the manner the accused did. Death was a natural consequence of the act that caused the death and the [deceased] saw it as a natural consequence of that act. This is shown when he said “if anything happens …”.

Threat evidence:

It is the evidence of PW 2 that there were verbal disagreements over the accused’s lifestyle. The deceased’s last complaint was two weeks before his death. Not talking to each other, living in the same house in separate rooms. In fact in his testimony, unchallenged by cross examination, he said that when the accused called him on the phone, she told him that “given her marital relationship with the husband the whole world was going to think she murdered him”.

She made this comment even before her husband had died! Why would she say that unless she anticipated death?

PW 5 and PW 4, among others, also testified about the poor relationship and that the two were not talking to each other. PW 7 Loreta Mutoni particularly testified about a threat issued by the accused to her and the deceased on the 29th of December 2012. The accused reportedly said in an angry tone: “By the way, I’m capable of doing very many things that I myself I’m scared of the length I can go.”

It is clear from the evidence that the threat was directed at both of them as the accused was labouring under the impression that the two were having an affair.”

This factor, when considered with others, goes to show that the accused had formed an intention to do something that in her own words scared even the accused herself! Their testimonies show that the two, in the few weeks before the deceased’s death, were particularly angry with each other.

Forensic evidence:

PW 11 Andrew Mugimba stated that the vehicle that knocked the deceased was in good mechanical condition, with an electronic-powered steering, anti-lock braking system, obstacle sensors and generally improved efficiency. He drove the car himself and the steering was responsive and the brakes were good. The gears were also fine. He testified that the parking brake holds the vehicle still and that the car does not move until you accelerate it.

In other words, once parked, the car could not move by itself. Ndizeye also drove the said vehicle to the home and found no problem with the car. PW 8 John Bosco Munaku stated that there were striation marks on the car and the gate showing that the vehicle had hit the gate .

The bolt was also bent due to the car knocking the gate when it was closed and forcing the gate open. According to him, the body was lying 10.3 metres from the gate, meaning that the impact knocked the gate open, hit and dragged the deceased along the ground for that long distance. PW 10, Professor Mwakali, who presented the report of their assessment, states that the vertical bolts were not damaged meaning that the gate was being opened at the time when the accused hit the gate with her car.

The bolt was mild steel and did not need too much force, to force the gate open. However, for the car to have moved from outside the gate and stopped 17.5 metres, the car was moving at a speed higher than 4161 kilometres per hour. Why was the accused using this speed to enter her driveway?

The accused’s explanation is incredible. Having parked the car, she went to ring the bell, came back to the car and sat waiting and the car did not jerk. When she got out the second time, she heard someone opening and she went back to the car, put one leg in and before she could put the right one, the car took off all by itself! She had touched nothing at all!

Mwakali testified that his team had conducted research and established that there were no reported unintended acceleration cases in the Toyota model that the accused was driving. According to her, she struggled to control the car by steering to the right. The evidence of PW 13 Tukahiirwa Claire is that the accused has had a permit since 2002.

She was a seasoned driver, in a familiar car, in a familiar driveway. These facts show that the car did not jerk off on its own volition and that she accelerated it herself. She further admitted that she did not realise that she had knocked anyone until the car stopped!

Indeed, this false theory of the car jerking is clearly revealed by the fact that the accused drove the very same car, minutes later to the hospital all by herself. She did not take any of the available cars. Since the deceased did not die on the spot, she could have asked for keys for any other car. She could have called for help from Bandali rise where PW 2’s family lived.

She wants the court to believe that the car was faulty yet she herself trusted it to transport her husband who was in a bad physical state because of injuries inflicted by the same car! This false theory supports the prosecution’s case that the accused did intend the consequences of her actions.

Suspicious conduct:

Ndizeye states that the deceased had to send him to the accused three times to collect his car keys. He actually kept sending him back, rather with urgency to collect his car keys from her. She denied having the keys yet after a second search of the vehicle, the keys were found in the driver’s pocket in her car. The same happened to the deceased’s phone.

She denied having it and on insistence of PW5, her bag was opened and the phone was found there. The witness narrated the importance of the car keys to the deceased. It is also strange that the accused in the hearing of PW 12 and DW 4 said to her husband, “I am sorry darling, I am sorry sweetheart, I love you” statements that the prosecution finds extremely contradictory to a marriage relationship that was so sour that for years they were not talking to each other.

These words, along with the impression of forgiveness by her husband that she tries to create are in the prosecution’s view a mere cover-up. They were said to provide her with a defence. The defence submits that there was no malice because she took the deceased to hospital. We submit that she knew that the deceased was going to die when she admitted to PW2 that the whole world will think she killed him because of their bad relationship, yet he was still in hospital.

With all the foregoing, the prosecution submits that the accused did actually know who was opening the gate that night. It is not normal for persons opening the gate at night not to enquire who was on the other side of the gate, lest one invites robbers and criminals! Indeed PW 8 testified that it was not possible for the person outside to see who was inside. Similarly it was not possible for one inside to know who was outside.

Identification would be necessary, either by opening the pedestrian door at the gate to confirm who is outside or through oral speech. All evidence points to the fact that the accused knew that it was the deceased who was opening the gate for her that fateful night.

The death of Nsenga was unlawful as it was willingly and knowingly caused by the accused, who has no legal excuse whatsoever. It is our submission that the car could not have moved without any other force placed on the accelerator. There was no one else who made the car to accelerate except the accused.

Manslaughter:

If the court is not convinced that either of the limbs of malice aforethought set out are not met, we submit that the accused be convicted of manslaughter, which is a minor and cognate offence to murder (cites two authorities). The degree of negligence in the case before court is so high as to justify a conviction for manslaughter.

Defence case:

The defence case, as understood by the prosecution is that the accused person should be acquitted on murder and suffer no conviction for any criminal offence as she is not criminally liable for any offence. What happened on the day in issue was not under her control or of her will.

The suspect’s current prosecution for murder is initiated by her in-laws who have warned her that if she does not lift her caveat on the father-in-law’s application for letters of administration, the murder charge shall be instituted. This defence was not raised at all during cross examination.

The family could not be fighting for property as if they had none. They flew the accused and the family for burial in two planes and rented an apartment for her.

The accused signed powers of attorney to allow her father-in-law to apply for letters of administration.

She wants court to believe that she, a businesswoman, literate and English-speaking allowed signing a document whose contents she did not know at a time yet she asked to call her sister to witness. This could be disregarded as lies. We finally submit that the accused be convicted as charged.

Judge: I adjourn the case to Wednesday, July 30. (When the defence is expected to make a rejoinder.)

Source : The Observer

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