By Bakampa Brian Baryaguma
1.
Introduction
The
offence of aggravated robbery is provided for under S. 3 of the Penal Code (Amendment) Act, 2007,[1]
which amended S. 286(2) and (3) of the principal Act i.e. the Penal Code Act (hereinafter ‘the Penal Code’).[2]
The amendment 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. 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.
Hence,
aggravated robbery comprises the following ingredients: theft against the victim; using or threatening to use violence
during robbery; possession of a deadly weapon; using or threatening to use a
deadly weapon at or immediately before or immediately after; causing death of
or grievous harm to the victim or any other person during robbery; and proof of
the accused’s participation.
2.
The
Ingredients Analyzed
A.
Theft
Against the Victim
The
law governing theft is S. 254 of the Penal Code. 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,[3]
money was held to be an inanimate, movable thing capable of being stolen.
B.
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.[4]
In Sekiranda’s case,[5]
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,[6] 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. So, it appears that very little force is actually required.
C.
Possession
of a Deadly Weapon
The prosecutor 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 clearly defined in S. 3 of the 2007 amendment,[7] (amending S. 286(3) of the principal Act), to mean,
(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.
This is very clear enough, and doesn’t call for
explanation.
D.
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 in-between.
The
court in Gathuri Njuguna vs R,[8]
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,[9]
the court answered the second question; and it appears that “using” must be
actual and the threat real and imminent. The accused was charged with
aggravated robbery under the old law (where the key ingredient was actual using,
or threatening to use, a deadly weapon – but not mere possession).[10]
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.
E.
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 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.’
The
rule in R vs Malcherek & Steel,[11]
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.
F.
Proof
of the Accused’s Participation
In
every offence, it is a cardinal 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
the case of aggravated robbery, 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.
In other words, criminal responsibility is personal; not general, for all.
3.
Conclusion
Possessing
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, as long as the other ingredients are also proved.
In Luwum’s case,[12]
the accused wasn’t convicted for aggravated robbery because he didn’t use his
gun, much as he had it. Had he been tried under S. 3 of the 2007 amendment,[13]
he would have been found guilty of aggravated robbery.
Under
S. 3 of the 2007 amendment,[14]
even possession of an instrument which resembles (or imitates) a deadly weapon
during robbery, elevates the offence to aggravated robbery. Therefore, in my
view, possession of a deadly weapon or an imitation of it (e.g. a gun,
or a toy gun), is the essence of the offence of aggravated robbery.
But
it should be noted that this offence can also be committed without possession
of common or outright deadly weapons like guns. The offence can also be
committed where the accused causes the death of the victim, using, for example,
a rope. In this case, the rope is the deadly weapon.
It
should be noted, however, that the crucial significance of the ingredient of
possession of a deadly weapon does not necessarily render the remaining ingredients
of aggravated robbery irrelevant, or less important. They must also be proved
beyond reasonable doubt. As Justice Lugayizi noted in Sekiranda’s case,[15]
‘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] Act No. 8 of 2007.
[2] Cap 120, Laws of Uganda, 2000.
[3] High Court Criminal Session Case
No. 200 of 2006 (unreported).
[4] A.S. Hornby, A.P. Cowie, &
A.C. Gimson, Oxford Advanced Learner’s
Dictionary of Current English (1983), at 976.
[5] Supra, note 3.
[6] [1976]
Crim LR 692.
[7] Supra, note 1.
[8] [1965]
E.A. 583.
[9] High Court Criminal Session Case
No. 0025, of 2003 (unreported).
[10] See, S. 286(2) of the principal
Act i.e. Penal Code Act. It stated
that, ‘Notwithstanding subsection (1)(b), where at the time of, or immediately
before, or immediately after the time of the robbery, an offender uses or
threatens to use a deadly weapon or causes death or grievous harm to any
person, such offender and any other person jointly concerned in committing such
robbery shall, on conviction by the High Court, be sentenced to death.’
[11] [1981] 2 All ER 422.
[12] Supra, note 9.
[13] Supra, note 1.
[14] Ibid.
[15] Supra, note 3.
No comments:
Post a Comment