The trial in the murder of Henry Katanga was supposed to have resumed on March 10 but was adjourned to the following day as per the registrar’s instruction from the trial judge.
On March 11, Justice Rosette Kania greets everyone and the trial kicks off. Samali Wakhooli, the assistant DPP appears on behalf of the state, together with Jonathan Muwaganya, the chief state attorney and Anna Kiiza.
On watching brief is Mwesigwa Rukutana from Rukutana and Company Advocates. The accused are represented by Peter Kabatsi, Elison Karuhanga, Jet John Mwebaze and Macdosman Kabega.
Proceeding with the testimony of prosecution witness 10, prosecutor Wakhooli proceeded with roll call. The five accused persons; A1 appearing via Zoom from Luzira prison and the rest of the accused in the dock. Wakhooli then requested the judge to reveal the reason as to why there was a change of judge, this being the first time a witness is being presented before her.
“It’s my humble request that the reasons for the change of judge are put on record.” Court heard Justice Kania addressed this, saying, “The trial judge was changed because the one who was presiding in this matter was indisposed. The nature of his indisposition is one that cannot be resolved quickly, so rather than delay the trial, a decision was made to appoint another judge.”
Muwaganya took over the submission, reminding the judge that at the last trial, the witness ended up having to identify the report he authored. To verify this, the witness confirmed that the signatures, stamps and seals on the forensic report belong to him, and are proof he was the author of the report.
After a few questions to the witness, Muwaganya applied to tender in the witness report as an exhibit, and the defence had no objection to tendering the report but requested clarification on what the CDs that were presented with the report were.
Muwaganya explained that these are electronic contents of the report to be displayed in the courtroom as video evidence.
Karuhanga: My lord, maybe they should display them so we know that what we are about to concede to is the same as what we have.
Judge: Can we tender at that point?
Muwaganya: No. What is the point of disclosure then?
Judge: They don’t know whether what you’re tendering is what you’re going to traverse in court.
Muwaganya: Unfortunately, my lord, the computer that he carried can’t play the CD. We shall handle the CDs later.
Judge: So, you agree to tendering the hard copy?
Muwaganya: My lord, the hard copy has an amplified version of the … He checks the papers. My lord, the report has an amplified version of the call data analysis.
Muwaganya: Yes. But, my lord, we pray that the record is rectified.
Judge: What’s this? (She reads the cover of the blue file.). Digital forensics report. PE12? Muwaganya: Yes, my lord. (She types away at her laptop.) With your indulgence, we ask that the expert present his report electronically as the court follows. (He looks in the direction of the witness signalling him to switch on his presentation.)
The judge turns to look at the TV screen to her left. Muwaganya refers to page 1 of the report, which seemed different from what the defence had. Karuhanga stood to object.
Muwaganya: Let’s be serious, at least for once.
Judge to Muwaganya: Let’s be courteous to each other. I read through the record, and statements like ‘Let’s be serious, at least for once’ are not courteous.
Muwaganya: I withdraw my statement. Police forensics examiner AIP Enoch Kanene, the 10th witness, begins his presentation by explaining the contents of each page of his report.
He explained that his report contains brief facts of the incident and a list of the exhibits submitted as per police form 17A. The report also contains the tools and the processes used in extracting information from the submitted exhibits and the findings.
A box and a pair of gloves were brought before the witness as he was required to show the court the exhibits he was talking about. A total of 19 exhibits and only nine saw a successful data extraction.
The exhibits were all categorised and analysed in different digital sections that included mobile forensics (phones and flash discs), audio-visual analysis (NVR) and call data records (certified copies of call data records and the extracted call logs).
The witness told the court that, while doing his examination under mobile forensics, he recovered call logs, SMS messages, documents, pictures, audio recordings and others with app data like WhatsApp, Facebook and email accounts, which raw data were processed using a UFED physical analyser to retrieve any and all information that might be helpful in the trial.
The findings under mobile forensics showed which user was the most likely owner of the handset in examination. Muwaganya asked the witness to confirm whether telephone 0700698946 made any calls to Henry Katanga on the morning of November 2, 2023, which he confirmed, saying it did.
According to the witness, the rest of the collected phones were either encrypted (Exhibit P, OC and ND) or too old (Exhibits A2, A3, A4, A1 and G) and unused to be examined with the tools he had.
He told court he received a number of certified copies of call data records that were jointly analysed along with information extracted from the phones, i.e., the call logs, using a tool called i2 analyst notebook version 10, noting that the call data records were marked by the investigating officer upon submission on Police Form A.
Muwaganya then proceeded to apply for the tendering of the examined exhibits. The defence stated they had no objection to the tendering of the exhibits but objected to the fact that the person through whom the exhibits were being tendered is not the one that handled all the exhibits.
Elison Karuhanga, defence counsel, argued the admissibility of said evidence, noting that the chain of evidence must be maintained.
“The people that recovered and handled them are the ones through whom we can tender these exhibits,” he said. Muwaganya stated that the witness was the final and end user of the exhibits and therefore was qualified to tender.
“The process of tendering does not deal with the chain of handling but with the end user that dealt with the exhibits and, therefore, the end user is the proper person to present the exhibit for tendering in court, and this has been demonstrated in that he sealed the exhibits personally after the examination, and it is him that has unsealed them in this court.”
Judge: What do the exhibit guidelines say? (Muwaganya pulled out his phone and started searching for them.)
Muwaganya: My Lord, guideline 25 relates to the tendering of exhibits, and under 25 (2), it is provided that exhibits will be tendered through: 1. The maker or author 2. Custodian The custodian here refers to the final user, and in this case, the person that sealed the box or had last access to the box is the custodian.
The position of this witness is provided for, and it refers to any person with sufficient knowledge of the exhibits. So, under those two categories, it is our submission that the witness is a suitable person through whom we can tender the exhibits.
Karuhanga argued that Kanene said in his evidence, after examination, he sealed the exhibits, and they were signed out by someone: “It doesn’t take much explaining to know that the custodian is not the retainer of the exhibits, as they were stored in the lab.”
He cited a ruling in this very case, Uganda vs Molly, where a similar attempt was made by the forensic expert. Under regulation 26(3), the procedure for tendering in court, the judge ruled that the admissibility of evidence whose knowledge of recovery has not been identified cannot be tendered in court.
Justice Kania pointed out to the court that the judge ruled that the issue of admissibility will be addressed in the final decision.
Judge: Define chain of custody.
Karuhanga: My Lord, it refers to the chronological and careful documentation of an item in evidence from the time of recovery to the time it is presented in court. If we look at prosecution exhibit 12, it contains a chain of custody, and you will realise that the witness is not the final user of these exhibits.
The last person in this chain is the lab. After further confrontation and exchange, the judge ruled that the witness is a suitable person through whom the exhibits can be tendered, and the court proceeded for a break.
“The guidelines say any person with sufficient knowledge of the exhibits can tender, and this person has knowledge of the exhibits. So, he can tender,” she said.
The next section of the report was call data analysis, where the findings were limited to direct calls, location, frequency of the calls, date and time from October 31 to November 2, 2023.
The witness analysed call logs and developed a chart that showed the communication links between the submitted call data reports and the data recovered from the exhibits. The witness had told court that he received a number of certified copies of call data from the police, and they were marked CDR (call data record) A-0776914444, belonging to Molly Katanga.
CDR B-0783371637 owned by Patricia Kakwanzi, CDR C-0788148415 owned by Martha Katanga Nkwanzi, CDR D-0762450897 in the names of Charles Otai, CDR E-0704134813 Amanyire George, CDR F-0778846713 Denise Nayebare, CDR G-0701942123 Henry Katanga.