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Court of Appeal Quashes Sentence of Man Convicted of Defiling a Mentally Impaired Girl

Apea was arrested in 2012 for allegedly defiling an 11 years old girl. In 2014, Justice Winfred Nabisinde of Lira High Court convicted Apea of aggravated defilement and sentenced him to 20 years in prison.
Jusitce Elizabeth Musoke reading her judgement
The Court of Appeal has quashed a 20-year sentence of Moses Apea, a man accused of defiling a physically and mentally incapacitated girl.

Three justices, Elizabeth Musoke, Hellen Obura and Remmy Kasule said the case was not proven beyond a reasonable doubt because the victim was incapacitated to testify.

"In the present case, the fact that the victim was incapable of testifying and being subject to cross-examination, left reasonable doubt as to whether the appellant (Apea) was guilty as charged, and specifically if his defence was untruthful" read the judgment in part.

Apea was arrested in 2012 for allegedly defiling an 11 years old girl. In 2014, Justice Winfred Nabisinde of Lira High Court convicted Apea of aggravated defilement and sentenced him to 20 years in prison.

The father of the girl told the court that he went to Apea's grain milling shop and left her there as he went to a nearby town to run some errands. The father told Court that his daughter told him that Apea had served all the other customers except her until it was close to 7:30 pm when the two were left alone at the shop and then he defiled her.

  However, the girl didn't testify in court when she was taken to trial because she was incapacitated both physically and mentally and was unable to sit up, move or speak.

  Apea denied the allegations and said he had helped the girl grind the maize after which she left. He adduced before the court a witness, a customer whom he had walked with home after closing his shop. This customer testified that she was with Apea when he closed his shop and escorted her home. She said that she knew the girl as being epileptic and prone to confusion.

However, Judge Nabisinde believed prosecution evidence and convicted Apea. But, in 2015, Apea appealed the judgment saying that the Judge erred in law and fact when she convicted him on uncorroborated circumstantial evidence thus occasioning a miscarriage of justice.

Apea also says that the judge erred when she failed to consider the strong evidence of the defense witness, thus coming to a wrong conclusion.

The Court of Appeal quashed the conviction of Apea and ordered his immediate release. The justices noted that there's reasonable doubt about the guilt of Apea following the victim's inability to testify due to her mental status and be subjected to cross-examination.

"In the premises, we cannot accept the contention of counsel for the respondent that the Defense evidence for the appellant was a mere fabrication. To make such a finding would require us to speculate as to what the cross-examination of the victim which was not done in this case would be revealed” reads the judgment in part.

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