Supreme Court Quashes Rape Conviction and Affirms that Major Contradictions Affecting the Root of the Prosecution’s Case Must Be Resolved in Favour of the Accused.

Brief of Moses Kabareebe v Uganda (Criminal Appeal No. 57 of 2023) [2025] UGSC 24 (8 July 2025)

Coram (Coram: Tuhaise, Musota, Madrama, Bamugenereire & Mugenyi, JJSC)

Introduction

In criminal proceedings, contradictions and inconsistencies in witness testimony are not uncommon. However, the law is clear: only grave contradictions or inconsistencies that go to the root of the prosecution’s case can be fatal. 

In David Ojeabuo v Federal Republic of Nigeria (2014) LPELR-22555(CA), the Nigerian Court of Appeal clarified that "contradiction means a lack of agreement between two related facts," and for such contradictions to be legally significant, they must concern material facts and be substantial, not trivial.

This principle is echoed in Ugandan jurisprudence, notably in Obwolatum Francis v Uganda, SCCA No. 30 of 2015, and Twehangane Alfred v Uganda, Criminal Appeal No. 139 of 2001, where courts have held that serious and unexplained contradictions may vitiate a conviction.

These standards were at the heart of the recent Supreme Court’s decision in Moses Kabareebe v Uganda, Criminal Appeal No. 57 of 2023, where the Court quashed the appellant’s rape conviction. The Court found that the prosecution’s evidence was riddled with major contradictions and deliberate untruths, particularly regarding the complainant’s credibility, the circumstances of the alleged offence, and the DNA evidence that cast doubt on the victim’s version of events.

The Court held that such contradictions created reasonable doubt, and that the trial and appellate courts had failed in their duty to scrutinize and re-evaluate the evidence properly. The decision reaffirms the constitutional presumption of innocence and the prosecution’s duty to prove every element of an offence beyond reasonable doubt.

Facts of the Case

Moses Kabareebe, the appellant, was convicted of rape contrary to sections 123 and 124 of the Penal Code Act and sentenced to 10 years’ imprisonment. The prosecution alleged that on 25th October 2019 at about 3:00 pm, in Kyebando, Kampala, the appellant—who was a landlord—had unlawful sexual intercourse with Juliet Akello, a housemaid to his tenant, without her consent.

The trial court found the complainant’s testimony credible and relied on medical evidence (Police Form 24A) and supporting testimony to convict the appellant. The Court of Appeal upheld both the conviction and sentence.

Arguments of the Appellant

The appellant, through counsel, advanced several key arguments:

1. Procedural Irregularities:

   • The medical report (PF 24A) was improperly admitted as an agreed document under section 66 of the Trial on Indictments Act without being explained or consented to by the appellant, violating his right to a fair hearing.

   • The trial court relied on a joint opinion of assessors, contrary to section 82(1) of the TIA, which requires separate opinions.

2. Investigative Lapses:

   • The police failed to reconstruct the crime scene, thereby compromising the quality of the investigation and prejudicing the defence.

3. Contradictions in Prosecution Evidence:

   • Serious inconsistencies in witness testimony were highlighted, including:

     • Discrepancies about the date of the offence (25th vs 26th October).

     • The complainant's initial denial of having a child, later contradicted by DNA evidence.

     • Conflicting accounts about who reported the incident and what was witnessed.

4. Consent and Credibility Issues:

   • The complainant’s claim of never having had sexual intercourse before the alleged rape was disproven by DNA results showing the appellant was not the father of her child.

   • The complainant allegedly continued interacting with the appellant after the incident, including accepting his requests not to disclose her pregnancy—raising doubts about the lack of consent.

5. Gun Threat Not Proved:

   • While the victim claimed the appellant threatened her with a gun, no weapon was recovered during the police search, and records showed the appellant had deposited his gun with military intelligence prior to the alleged offence.

6. Fresh Matters on Appeal:

   • The appellant raised new grounds not canvassed in lower courts, arguing they should be entertained under the Supreme Court’s inherent powers due to their grave implications.

     
     

Arguments of the Respondent (State)

The prosecution, represented by State Counsel, made the following counterarguments:

1. Limitation on Second Appeals:

   • Grounds 1 and 3 were incompetent as they raised new matters not considered by the trial or appellate court.

   • Under the Judicature (Supreme Court Rules) Directions and precedent (e.g., Nalongo Josephine Nazziwa v Uganda), new matters cannot be introduced at this stage unless exceptional circumstances exist, which the appellant failed to prove.

2. Proper Admission of PF 24A:

   • The record indicated that PF 24A was admitted by consent and marked as Exhibit P1 during the trial without objection. The defence, through counsel, expressly agreed to it, and no miscarriage of justice was occasioned.

3. Assessor Opinion Not Fatal:

   • The joint opinion of assessors was not fatal since assessors’ views are not binding on the court. Moreover, the joint opinion did not result in any miscarriage of justice.

4. No Need for Scene Reconstruction:

   • The scene was well described by the complainant, who knew the appellant personally. The offence occurred in broad daylight, and her identification was not in doubt.

5. Minor Inconsistencies:

   • Any contradictions in prosecution evidence were minor and did not affect the core of the case. Other witnesses and medical evidence corroborated the complainant’s testimony. The issue of paternity was irrelevant since the prosecution never claimed the pregnancy resulted from the rape.

6. Gun Possession Not an Ingredient:

   • Possession of a weapon is not an ingredient of rape under the law. The alleged threat with a gun was part of the narrative but not essential to the proof of the offence.

7. Call Records:

   • Testimony by the complainant about phone calls from the appellant’s wife and father was not hearsay since she participated in those conversations.

8. No Miscarriage of Justice:

   • The trial was fair, and the evidence—viewed as a whole—was sufficient to support the conviction. There was no failure of justice to warrant intervention by the Supreme Court.

⚖️ Key Issues

1. Whether the Court of Appeal failed in its duty to re-evaluate the evidence as a first appellate court.

2. Whether the conviction was founded on improperly admitted evidence and major contradictions that undermined proof beyond reasonable doubt.

3. Whether procedural irregularities, including the admission of PF 24A and assessors’ joint opinion, occasioned a miscarriage of justice.

   
   

   ⚖️ Findings

   1. Duty of First Appellate Court to Re-evaluate Evidence

   The Supreme Court reaffirmed that the Court of Appeal, as the first appellate court, is required by law to re-evaluate the evidence on record and arrive at its own conclusions, especially where credibility and factual disputes are central to the conviction.

   • The Court cited Kifamunte Henry v Uganda (SCCA No. 10 of 1997), noting that while a first appellate court does not retry the case, it must scrutinize the evidence to determine whether the trial court’s conclusions were supported.

   • In this case, the Court of Appeal failed to properly address serious contradictions in the prosecution's evidence and ignored material inconsistencies, thus failing in its appellate duty.

     
     

   2. Improper Admission and Reliance on PF 24A

   The appellant challenged the admission of Police Form 24A, a critical piece of medical evidence.

   
   

   The Court found that PF 24A (Police Form 24A (PF 24A) is a medical examination report issued by a qualified medical practitioner—usually a government or police doctor—after examining a complainant in a sexual offence case. It serves as key corroborative evidence of physical signs of sexual abuse or penetration.) was admitted without following procedural safeguards.

   
   

   The court found that although marked as agreed under section 66 of the Trial on Indictments Act, there was no record showing that the appellant or his counsel consented to it.

   
   

   Additionally, the form was not explained to the appellant and was never testified to by the medical officer who authored it.

   
   

   🔎 Holding: The Supreme Court held that reliance on PF 24A improperly admitted—amounted to a denial of the right to a fair hearing and occasioned a miscarriage of justice.

   
   

   3. Impact of Contradictions and Inconsistencies

   The Court engaged deeply with the test for contradictions, emphasizing that material contradictions—especially when they go to the root of the prosecution’s case—must be resolved in favor of the accused.

   
   

   Referencing Twehangane Alfred v Uganda (Crim. App. No. 139 of 2001), the Court reiterated that grave contradictions, unless reasonably explained, undermine the reliability of witness testimony.

   
   

   • The Justices found several major inconsistencies:

     • The complainant alleged she was a virgin, but DNA results showed she had given birth and the appellant was not the father.

     • Discrepancies in the date of the offence, reports to the police, and details of interactions with the appellant post-incident were unexplained and troubling.

     • The alleged use of a gun was not supported by any physical recovery, yet was central to the complainant’s story of being intimidated into silence.

       
       

   📌 Conclusion: 

   These contradictions were not minor or peripheral—they went to the core of the prosecution's case. The trial and appellate courts’ failure to account for them led to a miscarriage of justice.

   
   

   4. Assessor Opinions and Procedural Irregularities

   The appellant also challenged the legality of the trial court relying on a joint opinion of assessors, contrary to section 82(1) of the Trial on Indictments Act which requires separate opinions.

   • While acknowledging that assessors’ opinions are not binding, the Supreme Court noted that failure to comply with mandatory procedural requirements—especially in a capital offence—raises concerns.

   • Taken together with the improper admission of PF 24A and the contradictions in evidence, the procedural irregularity contributed to the erosion of a fair trial.

     
     

   🏛️ Final Judgment

   The Supreme Court allowed the appeal, quashed the conviction, set aside the sentence of 10 years’ imprisonment, and entered a verdict of acquittal.

✅ Why PF 24A is Important in Criminal Proceedings

1. Corroboration of the Complainant’s Testimony

   It provides medical findings (e.g. presence of injuries, bruising, evidence of penetration or sexually transmitted infections) that may support or discredit the complainant’s account of sexual assault or rape.

2. Evidence of Penetration

   In cases of rape or defilement, the actus reus (physical element of the offence) is sexual penetration. PF 24A helps prove whether penetration occurred, which is a crucial element of the offence.

3. Condition of the Victim:

   It may include assessments of:

   • Genital trauma

   • Virginity status

   • Physical injuries

   • Emotional/psychological state

     These details may help determine whether force or violence was used.

4. Timeline Consistency:

   The medical examiner can often estimate how recent the injuries are. This can corroborate or challenge the alleged date and time of the offence.

5. Objective Evidence:

   Unlike oral testimony, which may be seen as subjective, PF 24A is often considered neutral, professional, and objective, making it persuasive to courts if properly admitted.

   
   

⚠️ Legal Conditions for Admissibility

For PF 24A to be properly admissible, the following conditions must be met:

1. It must be tendered by the medical officer who prepared it or with consent of the accused under Section 66 of the Trial on Indictments Act.

2. The accused must not object to its admission; otherwise, the medical officer must be called for cross-examination.

3. The court must explain its contents to the accused if self-represented.

4. It should be signed and certified by the medical practitioner who conducted the examination.

   
   

🧑‍⚖️ In Moses Kabareebe v Uganda, PF 24A’s Improper Admission Was Fatal

1. The form was admitted without calling the medical officer or showing that the appellant consented.

2. The Supreme Court held that this amounted to a violation of the right to a fair hearing under Article 28 of the Constitution.

Read the full case below

Moses Kabareebe v Uganda 2025 UGSC 24 (8 July 2025).pdf

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