Celebrating the Love of Friends in a Loving World

Celebrating the Love of Friends in a Loving World
Red Roses for You, My Sweet Friends ... Total Love.

My Sweet Friends

My sweet friends,

We grow closer to each other;

When we interact together and share ideas;

The common faith that we share,

Binds our hearts in one accord.

For sweet friendships last a life time,

When built on mutual respect, humility and understanding;

Throughout each different season,

We find we are one in life.

Sweet friends are there through times of grief;

And times when hope is gone;

Always there with encouragement;

So we can carry on.

I thank the Lord for you,

My true and faithful friends;

To fondly speak with you, whether we agree or not,

On this, our beloved blog;

For sweet friends will stay, no matter what;

Giving support.

Together, our hearts and minds truly unite;

With the amazing love of sweet friends.

In the spirit of true friendship,

Best wishes, my sweet friends;

May the Lord bless you abundantly.

I remain, yours truly,

B.B. Bakampa.

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Saturday, July 2, 2011

Proof Of Aggravated Robbery In Uganda

By Bakampa Brian Baryaguma
Dip. Law (First Class)–LDC; Cert. PELD-NALI-K; LLB Student–Mak]
bsaint3@gmail.com; www.bbbakampa.blogspot.com


Introduction

The offence of aggravated robbery is provided for under S.286 (2) of The Penal Code (Amendment) Act, 2007. The relevant section reads as follows:-
Notwithstanding subsection (1) (b), where at the time of or immediately before or immediately after the time of the robbery, an offender is in possession of a deadly weapon, or causes death or grievous harm to any person, the offender or any other person jointly concerned in committing the robbery shall, on conviction by the High Court, be liable to suffer death.

It follows that for there to be aggravated robbery, there must be robbery in the first place and the offence of robbery is catered for under S.285 of the Penal Code Act, Cap 120. It states that:-
Any person who steals anything and at or immediately before or immediately after the time of stealing it uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained commits the felony termed robbery.

Aggravated robbery therefore, comprises the following ingredients:
(i) theft against the victim;
(ii)using or threatening to use violence during robbery;
(iii) possession of a deadly weapon;
(iv) using or threatening to use a deadly weapon at or immediately before or immediately after;
(v) causing death of or grievous harm to the victim or any other person during robbery; and
(vi) proof of the accused’s participation.

1. Theft against the victim

The law governing theft is S.254 of the Penal Code Act. Theft is committed when a person fraudulently and without claim of right takes anything capable of being stolen or when such person fraudulently converts to the use of any person other than the general or special owner thereof anything capable of being stolen. Things that are capable of being stolen are defined in S.253. In Uganda Vs Pte Sekiranda Musa & Anor [1], money was held to be an inanimate, movable thing capable of being stolen.

2. Using or threatening to use violence against the victim during robbery

Literally, the word “violence” means as a state of using, showing or accompanying an action with great, extreme or severe force [2]. In Sekiranda’s case (Supra) Justice Lugayizi defined it as “Physical force used so as to injure,…; extreme roughness of action… or explosively powerful force or energy.” In R Vs Dawson, [3] the Court of Appeal held that the question of whether or not force has been used is a question of fact to be determined by a jury. In this case, the accused had nudged the victim causing him to lose his balance so that his wallet could be more easily taken. His appeal against a conviction for robbery was dismissed. It therefore appears that very little force is actually required.

3. Possession of a deadly weapon

The State must prove beyond reasonable doubt that the accused had with him or her at the time of the alleged theft a deadly weapon. A “deadly weapon” is defined in S.286 (3) as amended as including “(a) (i) an instrument made or adapted for shooting, stabbing or cutting, and any imitation of such an instrument; (ii) any substance, which when used for offensive purposes is capable of causing death or grievous harm or is capable of inducing fear in a person that it is likely to cause death or grievous bodily harm; and (b) any substance intended to render the victim of the offence unconscious.”

4. Using or threatening to use a deadly weapon at or immediately before or immediately after

This ingredient raises the vital questions of When is at or immediately before or immediately after? And what amounts to using or threatening to use a deadly weapon? The word immediate denotes nearness.
Something immediate is that occurring or done at once without anything coming between. The court in Gathuri Njuguna Vs R [4] vaguely answered the first question. The appellant stole property from the complainant’s house and was identified and apprehended after covering a distance of 500 yards. He resisted apprehension and in so doing hit the complainant with a club. Court said that the essence of the offence of robbery is an openly committed theft from or in the presence of someone or a theft where the offender is caught more or less in the act or immediately after the act. That it doesn’t extend to where the offence was committed clandestinely without discovery or chase until after the offender had left the premises and had proceeded so far on his way without being discovered to be the thief.

In Uganda Vs Luwum Charles, [5] the court answered the second question and it appears that “using” must be actual and the threat real and imminent. The accused was charged for aggravated robbery under the old law. During the trial, it was proved that the accused put the complainant at gun point before ransacking the house. There were no gunshots fired. Justice Bamwine stated that, where gunshots are fired during a robbery, it is easier for court to find and hold that a deadly weapon was used unlike where not a single shot is. The learned Judge acquitted the accused and found him guilty of simple robbery.

5. Causing death and grievous bodily harm

This ingredient addresses the question of causation which is very important in criminal law. Once the prosecution proves that the victim’s or any other person’s death or grievous bodily injuries during robbery were due to the accused’s actions, then the charge of aggravated robbery is sustained. S.2 (f) of the Penal Code Act defines grievous harm as meaning “any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, membrane or sense.” S.2 (g) interprets harm as “any bodily hurt, disease or disorder whether permanent or temporary.” This shows that aggravated robbery need not be done only with deadly weapons. The rule in R Vs Malcherek & Steel, [6] is that once it is unclear to court that the accused could have caused the death or injuries of the victim, the Judge must withdraw or dismiss the case.

6. Proof of the accused’s participation

In every offence, it is a general requirement that the accused must be proved to have performed the act constituting the offence i.e. it must be shown that it was the accused’s conduct which caused those consequences. In this case, it must be shown that the accused participated in the alleged theft during which he used or threatened violence, was in possession of a deadly weapon which he either used or threatened to use thereby occasioning death or grievous bodily harm to the victim. This is extremely important because criminal law operates in personam and not in rem.

Conclusion

Possession of a deadly weapon (like a gun) is what distinguishes aggravated robbery from simple robbery. Robbery requires actual use of the deadly weapon during theft but for aggravated robbery, proof of mere possession of the deadly weapon suffices to secure a conviction for as long as the other ingredients are proved too.

In Luwum’s case (supra), the accused was not convicted for aggravated robbery because he had not used his gun much as he had it. Had he been tried under S.286 (2) as amended, he would have been found guilty of aggravated robbery. Under S.286 (3) (a) (i), even possession of an instrument which resembles a deadly weapon during robbery elevates the offence to aggravated robbery.

In my view, possession of a deadly weapon or an imitation of it (e.g. a toy gun), is the essence of the offence of aggravated robbery. This certainly makes it very important in proving aggravated robbery. But it should be noted that this offence can also be committed without possession of deadly weapons like guns, for example where the accused causes the death of the victim. Deadly weapons are not limited to guns though, since they can be anything capable of inflicting grievous bodily harm on the victim.

The critical significance of this element however, does not necessarily render the remaining elements irrelevant as they must also be proved beyond reasonable doubt. As Justice Lugayizi noted in U Vs Pte Sekiranda Musa & Anor (supra), “Failure to prove any of the above ingredients would mean failure, on the part of the State, to prove the indictment.”


Notes and References


1. High Court Criminal Session Case No. 200 of 2006

2. A.S Hornby, A.P Cowie & A.C Gimson, Oxford Advanced Learner’s Dictionary Of Current English, Oxford University Press, Seventeenth Impression, 1983 at p.976

3. [1976] Crim LR 692

4. [1965] E.A. 583

5. High Court Criminal Session Case No. 0025 of 2003

6. [1981] 2 All ER 422