All my criminal questions I was required to stand up and submit to the court.

1. Trial Process
2. Voire Dire
3. Single identifying witness
4. Confession by Magistrate
5. Powers of IGG
6. Sentencing guidelines
7. Plea bargaining
8. Electronic evidence
9. Canine Evidence
10. Children offenders
11. Cases that require DPP consent
12. Tendering in evidence in absence of a primary maker.
13. Management of exhibits guidelines
14. Prima facie case, no case to answer, case to answer.
15. Registrar organizing court session.
16. Summing up for assessors
17. Service of criminal summons
18. Identification parade.
19. Police files
20. Bail in high court / Magistrates Courts
21. Give 5 Mitigating factors when asking for bail or a lesser sentence. (Old age, sole bread
winner, first time offender, sickness, didn’t waste courts time - he pleaded guilty)
26.

Police forms

Murder
1. Toxicological & Forensic Exam 17
2. Request for post mortem exam 48A
3. Post mortem report 48B
4. Record of fingerprints 20
5. Release on bond 18
6. Medical exam of person accused of serious crime. 24
7.

Sexual offences

1.

They both agreed to admit in evidence PF48A which was a request for a post mortem report
for Mushaija Joshua. The police form was admitted and marked PE1.
Both Counsel also agreed to admit in evidence PF48C which was the postmortem report in
respect of Mushaija Joshua as PE2.

In addition, both Counsel further agreed to admit in evidence PF24 which was the the medical
examination report of Mwesigwa William which was conducted at Itojo Hospital on the
27th January 2015 and the accused was found to be normal. The medical report was admitted
and marked PE3.

Lastly, both Counsel agreed to admit in evidence PF24 which was the medical examination
report of Okweri Moses which was conducted at Itojo Hospital on the 27th January 2015 and the
accused was found to be normal. The medical report was admitted and marked PE4.

Canine evidence

But one fact which is clear is that, such evidence when admitted must be corroborated by some
other evidence which gives strength to the canine evidence as presented through its handler or
trainer. The Prosecution must provide answers to the above questions in the affirmative before
admission of police dog evidence

Uganda versus Muheirwe and Anor 2012, my brother Gaswaga, J., proposed the following
principles to guide trial courts with regard to admissibility and reliance on dog evidence. He
opined,

“Therefore, from the above discourse, the following propositions are made as principles that
may govern the considerations for the exclusion or admissibility of and weight to be
attached to tracker (sniffer) dog evidence:

The evidence must be treated with utmost care (caution) by court and given the fullest sort of
explanation by the prosecution.

There must be material before the court establishing the experience and qualifications of the
dog handler.

The reputation, skill and training of the tracker dog is required to be proved before the court (of
course by the handler/ trainer who is familiar with the characteristics of the dog).

The circumstances relating to the actual trailing must be demonstrated.

Preservation of the scene is crucial. And the trail must not have become stale.
The human handler must not try to explore the inner workings of the animal's mind in relation to
the conduct of the trailing.

This reservation apart, he is free to describe the behaviour of the dog and give an expert
opinion as to the inferences which might properly be drawn from a particular action by the dog.

The court should direct its attention to the conclusion which it is minded to reach on the basis of
the tracker evidence and the perils in too quickly coming to that conclusion from material not
subject to the truth-eliciting process of cross-examination.

It should be borne in the mind of the trial judge that according to the circumstances otherwise
deposed in evidence, the canine evidence might be at the forefront of the prosecution case or a
lesser link in the chain of evidence.”

In the instant case the dog handler had attended training and had handled dogs for over a year
and the dog that was used in the instant case called BOAZ was a dog that he was currently
working with. The dog handler categorically told Court that the dog when trained rarely makes
mistakes and always accurately identify the assailant. Boaz in the instant case tracked the
assailants who he charged at and that was the two accused. PW2 the dog handler told Court
that the dog moved from the crime scene to where the accused were hiding covering a distance
of about 8 kms and charged at all the accused upon reaching where they were. The dog
handler’s evidence was consistent and was corroborated by PW3 and PW4. The crime scene at
the time the dog was introduced had not been tempered with. From the foregoing I find that the
prosecution ably placed the accused at the crime scene and proved it case beyond reasonable
doubt.

Counsel for the accused also contended that the two pangas the alleged weapons used to
commit the offence were not exhibited however, PW5 stated that the exhibits recovered by
Police were submitted to GAL for analysis and by the time the matter was being concluded they
had not yet been returned and that is why they could not be exhibited in Court. I accordingly
agree with the gentleman assessor and find the accused guilty as charged and convict them of
the offence of murder contrary to Sections 188 and 189 of the Penal Code Act.

Anti Corruption Act

Kabafunzaki, a former MP for Rukiga County [2016-2021], now Rukiga District, is also
barred from holding public office for a period of 10 years.
He was charged with two counts of corruption contrary to sections 2 (a) and 26 of the
Anti-Corruption Act 2009 and one count of conspiracy contrary to section 390 of the
penal code Act.

s.2(a) the solicitation or acceptance

26. Punishment for offences under sections 3, 4, 5, 6, 7, 8, 12, and 13

(1) A person convicted of an offence under sections 2, 3, 4, 5, 6, 7, 8, 12, and 13 is

liable on conviction to a term of imprisonment not exceeding ten years or a fine
not exceeding two hundred and forty currency points or both.

(2) Notwithstanding subsection (1), a person convicted of an offence under section 2 or

3 is, where the matter or transaction in relation to which the offence was committed was
a contract or a proposal for a contract with any public body or a subcontract to execute
any work comprised in such a contract, is liable on conviction to a term of imprisonment
not exceeding twelve years or a fine not exceeding two hundred and eighty eight
currency points or both.

27. Penalty to be imposed in addition to other punishment

Where a person is convicted of an offence committed by the acceptance of any

gratification in contravention of any provision of this Act, then, if that gratification is a
sum of money or if the value of that gratification can be assessed, the court shall, in
addition to imposing on that person any other punishment, order him or her to pay as a
penalty, within such time as may be specified in the order, a sum which is equal to the
amount of the gratification or is, in the opinion of the court, the value of that gratification,
and any such penalty shall be recoverable as a fine.

20. Causing financial loss

(1) A person who does or fails to do any act knowing or having reason to believe that
the act or omission will cause financial loss to the government, bank, credit
 institution, insurance company or a public body commits an offence and is liable
on conviction to a fine not exceeding three hundred and thirty six currency points
or to a term of imprisonment not exceeding fourteen years or both.
(2) In this section—
(a) “bank” and “credit institution” have the meanings assigned to them by the
Financial Institutions Act; and

(b) “insurance company” means an insurance company within the meaning of

section 4 of the Insurance Act.

(c)“a company” means a company incorporated under the Companies Act.

46. Disqualification

A person who is convicted of an offence under section 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13,
14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25 shall be disqualified from holding a public
office for a period of ten years from his or her conviction.

Auditor General

“Section 10(4) of the Anti-corruption Act, provides that in addition to any other penalty
imposed upon conviction on a person, that person is ordered to make good the loss
occasioned to the property; and the value of the property or damage to the property
shall constitute a civil debt from the person to the Government or public body
concerned and shall be recoverable from that person,”

The Inspectorate said today that Drichi, 54, appeared before the Anti-Corruption court
over bribery allegations contrary to Section 5 (a) (ii) of the Anti-Corruption Act 2009.

5. Bribery of a public official

A person who—

(a) directly or indirectly by himself or herself or through any other person offers,
confers, gives or agrees to offer any gratification to any member of a public body
an inducement or reward so that the member—
 (i) votes or abstains from voting at any meeting of that public body in favour of or
against any measure, resolution or question submitted to that public body;

(ii) performs, or abstains from performing his or her duty in procuring, expediting,
delaying, hindering or preventing the performance of any official act; or

(iii) aids in procuring or preventing the passing of any vote or the granting of any
contract or advantage in favour of any person; or

(b) being a member as is referred to in paragraph (a) directly or indirectly solicits or

accepts any gratification for himself or herself or for any other person, by himself
or herself, or through any other person, as an inducement or reward for any act or
abstaining from performing any act, referred to in subparagraphs (i), (ii) and (iii)
of paragraph (a);

commits an offence.

Sentencing

While handing him the sentence, the Magistrate indicated that although some offenses
he has handed him two years in jail, and others three, Nataka will serve the highest
sentence of seven years that has been given to him on causing financial loss and
embezzlement.

“The imprisonment sentences shall be non-cumulative. It is further ordered that the

accused shall compensate Uganda Shillings 1,236, 917,932 to Uganda Red Cross
Society,” said Nabende.

Nataka has also been barred from holding a public office for a period of ten years from
today as required under the Anti-Corruption Act.

“This is to authorize and require you the said Superintendent to receive the said Nataka
Richard Michael into your custody in the said prison together with the warrant and there
carry out the aforementioned sentence into execution according to law”, reads the
warrant of commitment from Nabende to the Superintendent of Prisons Murchison Bay
Prison.

How to withdraw a criminal case

Nolle prosequi

s.134. TIA Power to enter nolle prosequi

(1)

In any case committed for trial to the High Court, and at any stage thereof before
verdict, the Director of Public Prosecutions may enter a nolle prosequi, either by
stating in court or by informing the court in writing that the State intends that the
proceedings shall not continue, and thereupon the accused shall be at once
discharged in respect of the charge for which the nolle prosequi is entered, and if he
or she has been committed to prison shall be released, or if on bail his or her
recognisances shall be discharged; but such discharge of an accused person shall not
operate as a bar to any subsequent proceedings against him or her on account of the
same facts.

(2)

If the accused is not before the court when such nolle prosequi is entered, the chief
registrar or clerk of the court shall immediately cause notice in writing of the entry of
the nolle prosequi to be given to the keeper of the prison in which the accused may
be detained, and also, if the accused person has been committed for trial, to the
magistrates’s court by which he or she was so committed, and the magistrates’s court
shall immediatley cause a similar notice in writing to be given to any witnesses
bound over to prosecute and give evidence and to their sureties, if any, and also to
the accused and his or her sureties in case he or she shall have been admitted to bail.
Circumstantial evidence

Circumstantial evidence is evidence of facts that the court can draw conclusions from. For
example, if an assault happened on O'Connell Street at 6.15pm, you can give evidence that you
saw the accused walking down O'Connell Street at 6pm.

Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as
testimony by a witness about what that witness personally saw or heard or did. Circumstantial
evidence is indirect evidence, that is, it is proof of one or more facts from which one can find
another fact.

Contents of a police file

The investigating officer compiles a police file that contains documents including witness
statements, exhibit slips, a scene of crimes report and sketch as drawn, photographs, post
mortem reports, forensic reports and charge sheet where any suspects are arrested and
charged.

Contents of a judgement and what to consider before sentencing

Modes of institution of criminal suits

● Chargesheet
● Indictment together with summary
● Statement of Oath in private prosecution

Prima facie case, no case to answer, case to answer

Prima facie case

At the close of the prosecution case, section 73 of The Trial on Indictments Act, requires this
court to determine whether or not the evidence adduced has established a prima facie case
against the accused. It is only if a prima facie case has been made out against the accused that
he should be put to his defence (see section 73 (2) of The Trial on Indictments Act).

Where at the close of the prosecution case a prima facie case has not been made out, the
accused would be entitled to an acquittal See Wabiro alias Musa v. R

A prima facie case is established when the evidence adduced is such that a reasonable tribunal,
properly directing its mind on the law and evidence, would convict the accused person if no
evidence or explanation was set up by the defence (See Rananlal T. Bhatt v. R. [1957] EA
332). The evidence adduced at this stage, should be sufficient to require the accused to offer
an explanation, lest he runs the risk of being convicted. It is the reason why in that case it was
decided by the Eastern Africa Court of Appeal that a prima facie case could not be established
by a mere scintilla of evidence or by any amount of worthless, discredited prosecution evidence.
The prosecution though at this stage is not required to have proved the case beyond reasonable
doubt since such a determination can only be made after hearing both the prosecution and the
defence.

There are mainly two considerations justifying a finding that there is no prima facie case made
out as stated in the Practice Note of Lord Parker which was published and reported in [1962]
ALL E.R 448 and also applied in Uganda v. Alfred Ateu [1974] HCB 179, as follows:-

When there has been no evidence to prove an essential ingredient in the alleged offence, or
When the evidence adduced by prosecution has been so discredited as a result of cross
examination, or is manifestly unreliable that no reasonable court could safely convict on it.

https://twitter.com/ewabwire2008/status/1311599620376723459?s=21

Give 10 offenses that require the consent of the DPP

some electoral offences, offences under the Anti Corruption Act. Abuse of Office, Corruption, Causing Financial Loss,
Embezzlement etc.

Penal Code Act

● Incest
● Publication of defamatory matter concerning a dead person
● Publication of information prejudicial to security
● Seditious offenses
● Wrongfully inducing a boycott
● Incitement to violence
● Incitement to refuse or delay payment of tax
● Managing unlawful society

Presidential Electii
● Obstruction of election officers
● Defacement of notices and posters

Criminal trial procedure

Defendant

give their evidence in chief,

call witnesses,
mitigate their sentences

major considerations for ordering a retrial.

Gwolo Jackson alias Mugaga versus Uganda Criminal Appeal No.015 of 2017 where it was
held that where the appellate court forms an opinion that a defect in procedure resulted into a
failure of justice, it is empowered to direct a retrial.

● A serious error committed as to the conduct of a trial.

● the discovery of new evidence, which was not obtainable at the trial

● where the original trial was illegal or defective,

● the rule of the law that a man shall not be twice vexed for one and the same cause ,

● where an accused was convicted of an offence other than the one with which he was
either charged or ought to have been charged,

● strength of the prosecution case,

● The seriousness or otherwise of the offence,

● Whether the original trial was complex and prolonged,

● the expense of the new trial to the accused,

● the fact that any criminal trial is an ordeal for the accused,

● who should not suffer a second trial,

● unless the interests of justice so require and the length of time between the commission
of the offence and the new trial,

● and whether the evidence will be available at the new trial

It is therefore trite law that where an accused person does not understand the official language
of the court, an interpreter must be provided for him without any expense. Simultaneously, there
should be adequate interpretation to the court anything said by the accused persons.

Types Of pleas and circumstances in which they are recorded.

PLEAS
A plea is an answer to a charge. It may be an admission or a denial to a charge. It may be a
defence or an objection to the charge being brought against the accused. That being the case,
there are various types of pleas that an accused can raise at the time of pleading or at his trial.

The possible pleas are;

1. A PLEA OF GUILTY
2. A PLEA OF GUILTY TO A LESSER CHARGE
3. AMBIGUOUS PLEAS
4. REFUSAL TO PLEAD
5. UNFITNESS TO PLEAD OR TO BE TRIED
6. PLEAS OF AUTRE FOIS AQUIT OR AUTRE FOIS CONVICT OR PARDON
7. A PLEA TO THE JURISDICTION
8. A PLEA OF NOT GUILTY

PLEA OF GUILTY

If the accused pleads guilty to all charges, the accused is either sentenced immediately or
remanded for reports. It is however important that the accused personally pleads guilty. It is
insufficient for the advocate to say that the accused wishes to plead guilty. Where there is more
than one accused, and one pleads guilty and the other pleads not guilty, the usual practice is to
postpone the sentencing of the accused who pleads guilty until the end of the trial of the
accused who pleads not guilty.

PLEA OF GUILTY TO A LESSER OFFENCE

The accused may plead not guilty to the offence charged and plead guilty to another offence of
which the accused is not charged. i.e an accused charged with burglary may plead to that
offence and plead guilty to theft. If the prosecution accepts a plea to the lesser offence and the
judge approves it, the accused will be acquitted of the offence charged and sentenced for the
lesser offence. If the prosecution refuses to accept a plea of guilty to the lesser offence, the trial
must proceed on the basis of the offence as charged and if the jury acquits the accused of that
offence, the accused cannot be sentenced for the lesser offence even though they intended to
plead guilty to it.

AMBIGUOUS PLEA

Sometimes an accused may plead guilty but at the same time make statements which qualify
the plea. For example where a person charged with handling stolen goods by receiving them
pleads guilty to this offence but states that they did not know that the goods were stolen, the
plea is ambiguous.
If the accused continues to plead in this manner a plea of not guilty should be entered. Where
the plea is ambiguous and the court wrongly considers it to be a guilty plea, the appellate court
may quash the conviction or order that a not guilty plea be entered and the appellant tried on
the indictment.

REFUSAL TO PLEAD

Where the accused refuses to plead or remains silent when asked how they wish to plead, a
plea of not guilty should be entered. S.124 (4)

PLEAS OF AUTREFOIS ACQUIT OR AUTRE FOIS CONVICT

These two pleas- meaning previously acquitted and previously convicted respectively are based
on the fundamental principle of English law that a person is not to be prosecuted twice for the
same offence. Where one or the other plea is successfully raised, it bars all further proceedings
for the same offence.

Autre fois acquit is a fundamental principle of law that a man nay not be put twice to jeopardy for
the same offence. This term commonly means that if a man has been tried and found not to be
guilty of an offence by a court of competent jurisdiction, the acquittal will be a bar to a
subsequent charge for the same offence. S.89 MCA.

Autre fois convict on the other hand is to the effect that the accused cannot be convicted of an
offence which is the same as that of which he was previously charged and convicted. This rule
was stated in the case of R v Thomas. In this case the accused was convicted of wounding his
wife with intent to murder her and was sentenced to seven years imprisonment. Within a year
after the wounding, the wife died. The court of appeal held that although the accused had been
convicted and sentenced for the wounding, he could properly be tried for the murder and could
not plead autre fois convict. Here the death supervened as a result of the attack and the fact
that the attacker had already been convicted of a lesser offence relating to the attack was no bar
to the subsequent charge and conviction of murder.

In R v Daudji, it was stated that the test is not whether the facts relied upon are similar but
whether the accused has been tried and convicted of an offence which is the same as that with
which he is charged.

PARDON.

Under article 121 of the 1995 constitution, the president of Uganda can exercise his prerogative
of mercy by granting pardon to a person convicted of a criminal offence.

When a plea of autre fois acquit, autre fois convict or pardon are raised, this will become a
triable issue of the court. The court will have to determine and decide on the evidence whether
such plea is true or false.
s.93(a) MCA provides that a previous conviction or acquittal can be proved by an extract
certified under the hand of the officer having custody of the records of the court.

A PLEA TO THE JURISDICTION

The accused can plead that the court has no jurisdiction to try the charges preferred. Such a
plea must be in writing. The accused can plead not guilty in addition to pleading lack of
jurisdiction or demurrer. This is most common in civil matters.

A PLEA OF NOT GUILTY.

An accused may plead not guilty to some or all the counts on the indictment where he is
charged with more than one offence.

RECORDING OF PLEAS.

Having checked that the charge is in order, the magistrate will read and explain out the charge
to the accused and ask the accused to state whether he understands the substance of the
charges against him. S. 124 of the MCA lays down the procedure of recording pleas in a
magistrate’s court. This procedure was also set out in the case of Adan v R.

According to this case, when an accused person is charged with an offence, the charge and the
particulars of the offence thereof should be read out to the accused so far as possible in his own
language but if that is not possible then in the language he can speak and understand.

Thereafter the court should explain to the accused the essential ingredients of the charge and
he should be asked if he admits them. If the accused admits the truth of the charge, his answer
should be recorded as nearly as possible in his own words and then a plea of guilty formally
entered.

If the accused doesn’t agree with the facts as stated by the prosecutor or introduces additional
facts which if true might raise a question as to his guilt, a plea of not guilty should be recorded
and the trial proceeds.

If the accused doesn’t dispute any of the alleged facts, a conviction should be recorded and
further facts relating to the question of sentencing should be given before the sentence is
passed.

CHANGE OF PLEAS.

An accused person is free to change his plea at any time during the proceedings provided he
does so before sentence is passed upon him. An accused may with the leave of the court
change a plea of not guilty and plead guilty to all or some of the counts. The normal procedure
in such cases is for the relevant charges to be put to the accused again and for the accused to
plead guilty to them.

It should be noted that a change of plea from a plea of guilty to a plea of not guilty should be
allowed only in very clear cases e.g due to a language problem the accused may have
misunderstood the charge. It should also be noted that not every accused who wants to change
what is clearly a plea of guilty should be allowed to do so at his own convenience.

In R v Patel and another, it was held that once sentence had been passed upon a person who
has unequivocally pleaded guilty, he cannot afterwards be allowed to retract the plea.

FUNCTUS OFFICIO RULE

The term functus officio is a latin phrase meaning that having discharged a duty/authority to act
further is exhausted. In relation to court proceedings it means that once a court has finally
determined a case, it has no powers to adjudicate upon it again. When a court has determined a
case by passing sentence, following a plea of guilty it is functus officio so that even if the
accused wishes to change his plea, the court will have no power to permit him to do so.

In Lapi and others v Uganda, a magistrate convicted the three appellants and sentenced each
one of them to 7 years imprisonment. Immediately thereafter, two of them insulted the
magistrate who thereupon enhanced their sentences, each to 7 years and a half imprisonment.
On appeal, it was held that as soon as the magistrate convicted and sentenced the appellants,
he had become functus officio and therefore had no jurisdiction to alter either the sentence or
the conviction.

Uganda v Micheal Ogwang

Okello J stated that it is trite law that until it passed sentence, a trial court was not functus officio
in a case. It could properly permit a plea of guilty in substitution of a plea of not guilty.

In r v thomas here the man who had wounded his wife raised the defense of previous
conviction but it never succeeded

In the case of daudji it was observed it is not that the facts that the accused is convicted with
are the same but the offence is the one that is the same.

In the case of Adan it is basically on the procedure in the magistrate courts.

In Patel's case, a plea of guilty can not be retracted after passing a sentence.
 1. You’re a trial magistrate and the accused has pleaded guilty, proceed…

The correct procedure for recording a plea of guilty was settled by SPRY V.P (as he then was)
in Adan Versus Republic (1973)E.A 446 in the following terms:- “When a person is charged,
the charge and the particulars should be read out to him, so far as possible in his own language,
but if that is not possible, then in a language which he can speak and understand.

The Magistrate should then explain to the accused person all the essential ingredients of the
offence charged. If the accused then admits all those essential elements, the Magistrate should
record what the accused has said, as nearly as possible in his own words, and then formally
enter a plea of guilty. The Magistrate should next ask the prosecutor to state the facts of the
alleged offence and, when the statement is complete, should give the accused an opportunity to
dispute or explain the facts or to add any relevant facts which, if true, might raise a question as
to his guilt, the Magistrate should record a change of plea to “not guilty” and proceed to hold a
trial. If the accused does not deny the alleged facts in any material respect, the Magistrate
should record a conviction and proceed to hear any further facts relevant to sentencing”.

2. Someone broke into Grace’s house and stole the watch plus a bottle of Uganda
waragi…police carried out a search and found them with Isabella Sunday Owori…
proceed?

3. Robero

The procedure of Trial within a Trial

(i) If the defense is aware, before the commencement of the trial, that such an issue will arise;
the prosecution should be informed of that fact. Having been informed, the prosecution would
refrain from mentioning anything in relation to the statement in the presence of the assessors.

(ii) When the stage is reached at which the issue must be tried, the defense should mention to
the court that there is a point of law to be resolved and submit that the assessors be asked to
retire (withdraw from the courtroom). This must be done before any witness testifies in relation
to the statement. The insistence is that it should be quite early before any such witness goes to
the witness box.

(iii) The court will then order the lay members of the court (the gentlemen or/and ladies
assessors) to retire, i.e. to go out of the court and stay at a distance long enough not to hear or
even see anything in the courtroom.

(iv) After the departure of the assessors, the prosecution (upon whom the burden to prove the
statement lies) will call its witnesses including, of course, the person to whom the statement was
made, the interpreter (if any), and any other person acquainted with the fact in issue. These
witnesses would be examined-in-chief in a normal way, and then the defense will cross-examine
them.

(v) The accused has the right to give evidence or to make a statement from the dock, and to call
witnesses, whose evidence will be limited to the issue of the admissibility of the statement. The
accused and his witnesses (if any) will be cross-examined by the prosecution on the issue of
admissibility of the statement and never on the general issue in the main trial.

(vi) Having heard both sides of the case, the judge will then make a ruling either to admit the
statement or to exclude it and pronounce that ruling to the parties.

(vii) After the ruling, the lay members of the court (the assessors) would be called back to
retake their seats in the courtroom and the main trial would then resume.

Preliminary hearings
A "Summary of the Case" is simply a summation of the case, the details of which are then produced
by way of evidence. It was rightly observed in Soon Yeon kong Kim and another v. Attorney General,
Constitutional Reference No. 6 of 2007 that;

Pre-trial disclosure in the trial before the High Court in Uganda was the norm rather than the
exception until 1990 when The Magistrates Court (amendment) Statute No. 6 of 1990 was enacted.
Before that enactment, there were preliminary hearings conducted by Chief Magistrates or
Magistrates Grade one for cases triable by the High Court. The purpose of the preliminary
hearings was to screen out those cases where the prosecution evidence was too weak to justify a
trial.....

In 1967, The Criminal Procedure (summary of Evidence) Act was enacted. This changed the
purpose of the Preliminary hearing from screening to disclosure. The purpose became to give the
accused advance knowledge of the prosecution’s case. The Director of Public Prosecutions was
required under this Act to file with the Magistrates Court a proper indictment and a Summary of
Evidence containing the substance of the evidence of each would-be witness for the prosecution. In
the summary of evidence, reference was made to exhibits intended to be produced by the
prosecution at the trial. These exhibits would be produced in court at the committal proceedings,
marked, and taken into the custody of the court. Copies of the summary of evidence would be given
to the accused. This too was full pre-trial disclosure. It was only upon the enactment of The
Magistrates Courts (Amendment) Statue No. 6 of 1990 that trial by “ambush” was introduced in a
criminal trial by the High Court in this Country. As we have seen above, a trial by ambush is
repugnant to Article 28 (1) (3) above as there can be no equality between the contestants in a trial
by ambush and therefore no fairness.
You are a magistrate in court together with a clerk at 5 pm. A child of 14 years is brought in
court and she / she pleads guilty. Proceed.

SSENDYOSE JOSEPH Vs UGANDA

The appellant was indicted with the offence of defilement contrary to Section 123(1) of the Penal
Code Act. He was convicted of the said offence by His Lordship Hon. Justice Moses Mukiibi, J
on 30th July, 2010 and sentenced to twelve years imprisonment.

at the time he committed the offence he was between 16 and 17 years old. In fact the learned
trial judge put his age at 16 years at the time of the commission of the offence.

With all due respect to the judge, having realized that appellant was a child at the time the
offence was allegedly committed they did not bring into play the provision of The Children Act
(Cap 59)

The provisions of Sections 13 and 14 of The Children Act provide as follows:

13 (1) There shall be a court to be known as the family and children court in every District,
and any other lower government unit designated by the Chief Justice by notice in the Gazette.

(2).........

14. Jurisdiction of family and children’s court.

(1) A family and Children Court shall have power to hear and determine-

(a) Criminal charges against a child subject to Sections 93 and 94;

Part 10 of The Children Act relates to children charged with criminal offences. It sets out the
procedure to follow whenever a child is arrested and charged. For emphasis we have set out
below provisions of Section 89 of the said Act that are relevant to this particular case.

“89. Arrest and charge of Children.

.......................
.......................
As soon as possible after arrest, the child’s parents or guardians and the secretary for children’s
affairs of the local government council for the area in which the child resides shall be informed of
the arrest by the police.
The police shall ensure that the parent or guardian of the child is present at the time of the
police interview with the child except where it is not in the best interests of the child.

Where a child’s parent or guardian cannot be immediately contacted or cannot be contacted at

all, a probation and social welfare officer or an authorised person shall be informed as soon as
possible after the child’s arrest so that he or she can attend the police interview.

Where a child is arrested with or without a warrant and cannot be immediately taken before a
court, the police officer to whom the child is brought shall inquire into the case and, unless the
charge is a serious one, or it is necessary in the child’s interests to remove him or her from
association with any person, or the officer has reason to believe that the release of the child will
defeat the ends of justice, shall release the child on bond on his or her own recognisance or on
a recognizance entered into by the parent of the child or other responsible person.

Where release on bond is not granted, a child shall be detained in police custody for a
maximum of twenty –four hours or until the child is taken before a court, whichever is sooner.
No child shall be detained with an adult person.

Section 90 of the same act provides for the procedure and conditions for grant of bail to children
and Section 91 provides for the procedure for remand.

However, having convicted the appellant the learned trial judge should have sent the appellant
to a Family and Children Court for sentencing as required by law. He did not

“There is no dispute on the facts before us that the appellant was a child as defined under
Section 2 of the Children’s Act Cap 59 Laws of Uganda at the time of the commission of the
offence. He ought to have been sent to family and children’s court for sentence under Section
94 of the same Act.

The sentence of life imprisonment imposed by the trial court was illegal in the eyes of the law
and occasioned a miscarriage of justice”.

We agree that the correct procedure would have been for the Judge to send the appellant to the
Family and Children Court for sentencing under the provisions of Section 94 of that Act.

Section 94 (1) provides as follows:-

A family and children court shall have the power to make any of the following orders where the
charges have been admitted or proved against a child-
(g) detention for a maximum of three months for a child under sixteen years of age and a
maximum of twelve months for a child above sixteen years of age and in the case of an offence
punishable by death, three years in respect of any child.

“There is no dispute on the facts before us that the appellant was a child as defined under
Section 2 of the Children’s Act Cap 59 Laws of Uganda at the time of the commission of the
offence. He ought to have been sent to family and children’s court for sentence under Section
94 of the same Act. The sentence of life imprisonment imposed by the trial court was illegal in
the eyes of the law and occasioned a miscarriage of justice”.

The learned trial judge therefore had no jurisdiction to impose punishment on the appellant.

The sentence imposed by the learned trial judge was therefore illegal in law and it is accordingly
set aside.

We hereby order the immediate release of the appellant.

You’re the trial magistrate and the accused has pleaded guilty proceed…

You are a magistrate; the accused pleads guilty to all facts. Proceed.

In cases of plea of guilty like in the instant case, its trite law that no appeal is allowed except as
regards to the legality of the plea or legality of the sentence. Section 204(3) of the Magistrates
Courts Act Chapter 16 refers.

The correct procedure for recording a plea of guilty was settled by SPRY V.P (as he then was)
in Adan Versus Republic (1973)E.A 446 in the following terms:- “When a person is charged,
the charge and the particulars should be read out to him, so far as possible in his own language,
but if that is not possible, then in a language which he can speak and understand.

The Magistrate should then explain to the accused person all the essential ingredients of the
offence charged. If the accused then admits all those essential elements, the Magistrate should
record what the accused has said, as nearly as possible in his own words, and then formerly
enter a plea of guilty. The Magistrate should next ask the prosecutor to state the facts of the
alleged offence and, when the statement is complete, should give the accused an opportunity to
dispute or explain the facts or to add any relevant facts which, if true, might raise a question as
to his guilty, the Magistrate should record a change of plea to “not guilty” and proceed to hold a
trial. If the accused does not deny the alleged facts in any material respect, the Magistrate
should record a conviction and proceed to hear any further facts relevant to sentence”.

Someone broke into Grace 's house and stole the watch plus a bottle of Uganda Waragi
... Police carried out a search and found them with Isabella Sunday Owori.... proceed?
Bogere Moses and Another versus Uganda, SCCA No. 1 of 1997, the Supreme Court had this
to say:-

Doctrine of recent possession

“It ought to be realized that where evidence of recent possession of stolen property is proved
beyond reasonable doubt, it raises a very strong presumption of participation in the stealing, so
that if there is no innocent explanation of the possession, the evidence is even stronger and
more dependable that eye witnesses evidence of identification in a nocturnal event. This is
especially so because invariably the former is independently verifiable, while the later solely
depends on the credibility of the eye witness.”

Contrary to ss 27(1) to 27(8) of the Police Act, the respondent did not show evidence of any of
the following records which are essential for a lawful search, entry and seizure, to wit:

A search warrant,
A warrant card, in lieu of a search warrant
A written record of the specific thing(s) for which the impugned search was undertaken.
A written record of the responsible officer’s “reasonable grounds” for believing that the search,
entry and seizure of particular things from Nakasero Mosque on 27 December 2016 was
necessary.
A written record of the reasons why the responsible police officer unable to conduct the search
in person and why he required his subordinates.
A written record of the order that the responsible police officer delivered to his subordinates (not
below the rank of corporal) including RW1 to enter, search and seize particular things from
Nakasero mosque.
A written record showing that copies of the above-mentioned records were immediately sent to
the nearest magistrate empowered to take cognisance of the offence and to the owner or
occupier of Nakasero mosque.

Judge
The law that allows a search by police officers Section 27 imposes the following several
restrictions on the power of search and seizure;

The officer concerned must have reasonable grounds for believing that anything necessary for
the purpose of an investigation of an offence may be found in any place within his jurisdiction;
He must be of the opinion that such a thing cannot be got without undue delay otherwise than
by making search;
He should record in writing the grounds of his belief; and
Specify in such writing, as far as possible, the things for which the search is to be made; Section
27(1) Police Act.
He must conduct the search, if practicable, in person; Section 27(2) Police Act.
If it is not practicable for him to make the search in person, and there is no other person
competent to make the search at the time, he/she must record in writing the reasons for not
making the search himself and authorize any officer subordinate to him or her not below the
rank of corporal to make the search and he/she shall deliver to that officer an order in writing
after specifying in writing the place to be searched;
Thereupon search for that thing in that place. Section 27(3) Police Act.
Copies of the record above shall immediately be sent to the nearest magistrate empowered to
take cognizance of the offence and to the owner or occupier of the place searched. Section
27(5) Police Act.
Presence of the occupant or some other person in his or her behalf or where possible a local
leader should be present during the search. Section 27(6) Police Act
No police officer shall search any premises unless he or she is in possession of a search
warrant issued under the Magistrates Courts Act or is carrying a warrant card in such a form as
shall be prescribed by the Inspector general. Section 27(7) Police Act.
A search shall be carried out in a humane manner and unnecessary damages or destruction to
property shall be avoided. Section 27(9) Police Act.

Robbery occurred in Mbarara but they can’t trace the suspects... A. Christine. O’s identity
card is found at the scene of crime ... you’re the defense counsel proceed to defend

Alibi. Bag was stolen.

Who is an assessor? And sum up for assessors on the offence of aggravated robbery.

Nsonzi Medi, the Accused person is charged with Aggravated Robbery C/s. 285 and 286(2) of
the Penal Code Act.

It is alleged that the Accused person and others still at large on 29th August 2018 at Kaayi
Zone, Nabweru, Wakiso District robbed Naduli Ibrahim of a motorcycle Reg. No. UER 548Q and
immediately before or immediately after the time of the said robbery used a deadly weapon, to
wit a hammer on the said Naduli Ibrahim.

In a trial of Aggravated Robbery under Sections 285 and 286(2) of the Penal Code Act., before
convicting the accused person, the Judge must be satisfied beyond reasonable doubt that:-

There was theft of the alleged item or any other property capable of being stolen.

That there was use of violence.

That there was use or threat to use a deadly weapon or deadly substance.

Where the Accused persons are more than one, common intention must be proved.
WHO IS AN ASSESSOR?

Section 3 of the TIA provides that except as provided by any other written law, all trials before
the high court must be with the aid of assessors, whose number must be two or more.

According to Douglas Brown in his book criminal procedure in Uganda and Kenya at pg 137, An
assessor in law is a person who is appointed to advise the judge. Although the number of
assessors at a hearing must be two or more, the practice in the high court has always been to
restrict it to two. Assessors are lay people selected in the locality by the chief magistrate in the
area. They must be persons with a very good reputation in their areas. The assessors’
selection, qualification and attendance are governed by the assessors rules set out in the
schedule to the trial on indictment act. Under the schedule, every chief magistrate is required to
prepare, before the first day of the month of March in each year, a list of persons in his
magisterial area who qualify to serve as assessors. Rule 1 of the assessors’ rules.

The list of assessors must be posted at the courthouse for inspection by the public and any
person who wishes to object to a particular person being included on the list of assessors may
do so. Rule 3(1). Any such objection is heard and determined by the chief magistrate or a
magistrate grade I of the area.

After the hearing of the objections about a person’s suitability to serve as an assessor, the chief
magistrate will amend the list and strike out the name of the person not suitable, in his judgment
to serve as an assessor. Rule 4(1). A copy of the list so revised shall then be sent to the chief
registrar. Rule 4(2). The list so prepared shall be again revised once in every year and if any
person suitable to serve as an assessor is found in any magisterial area after the list has been
settled, her name will be added to the list by the chief magistrate of the area. Rule 4 (4)

WHO IS ELIGIBLE TO SERVE AS AN ASSESSOR?

All citizens in Uganda who are not exempted and who are between the ages of 21 and 60 and
who are able to understand the language of the court with a degree of proficiency sufficient to
be able to follow the proceedings shall be liable to serve as assessors at any trial held before
the high court. Rule 2 (1).

Must be a citizen of Uganda

Between the ages of 21 and 60
Must understand the language of the court – English

The following persons are exempt from liability to serve as assessors. Rule 2 (2)

Persons actively discharging the duties of priests or ministers of their respective religions

Medical practitioners, dentists and pharmacists in active practice

Legal practitioners in active practice

Members of the armed forces on full pay (it is not clear why these categories of people are
exempted from serving, perhaps as these are professions or callings which require active and
full attention, it might not be easy for those concerned to perform fully their duties as assessors
which frequently involve long sittings, without causing serious disruptions in their normal duties)

Members of the police forces or of the prison services

Persons exempted from personal appearance in court under the provisions of any written law
for the time being in force, relating to civil procedure- diplomats, president.

Persons disabled by mental or bodily infirmity (these are exempted for obvious reasons- an
assessor must be able to understand and follow the proceedings and must also be able to stand
for long hours

Persons exempted from serving by statutory instrument made by the minister challenging the
appointment of an assessor.

According to section 67 of the TIA, assessors must be sworn in at the commencement of the
trial but after the preliminary hearings and after the accused has pleaded to the indictment.
According to section 68, before assessors are sworn the accused and or his advocate and the
advocate for the prosecution have the right to challenge the propriety of the choice of a
particular assessor. They can do so on the following grounds;

a) presumed or actual partiality- an assessor who goes to court with a preconceived

idea as to what the judgment of the court should be even before hearing the evidence is not
what is required or expected of an assessor or an assessor who has an interest in the case
b) personal cause such as infancy, old age, deafness, blindness or infirmity
c) his or her character in that he or she has been convicted of an offence, which in
the opinion of the judged renders him unfit to serve as an assessor
d) his or her inability adequately to understand the language of the court

According to section 68 (2) TIA, when a challenge is disputed, it becomes a triable issue and
the person challenged may be examined by the court as to the allegations about his
incompetence. See case of Ndirangu s/o Nyagu v R [1959] EA 875

ABSENCE OF ASSESSORS

According to section 69 of the TIA, if in the course of the trial and before verdict an assessor is
from sufficient cause unable to attend throughout the trial or absents himself, and it is not
practicable immediately to enforce his attendance, the trial shall proceed with the aid of the
other assessors.
According to section 69(2) TIA, if more than one of the assessors are prevented from attending
or absent themselves, then the proceedings shall be stayed and a new trial shall be held with
the aid of different assessors.

SUMMING UP TO ASSESSORS

At the end of the evidence for both the prosecution and the defence, the judge will be required
to sum up the law and the evidence in the case to the assessors and shall require each of the
assessors to state his or her opinion orally and shall record each such opinion. S. 82(1) TIA.
As far as summing up to the assessors is concerned, it should be done in simple language. In
the case of Godfrey Tinkamalirwa and another v Uganda, it was stated that some of the matters
which the judge should direct the assessors on are;

a) the contradictions and inconsistencies in the evidence

b) the weight to be given to certain pieces of evidence e.g evidence of a hostile
witness
c) when court may base a conviction on identification by a single witness
d) when the court may rely on circumstantial evidence, etc…
see charles kayumba v Uganda

In the case of Uganda v Charles Kangameito, it was stated that it is improper for assessors to
form their opinions before hearing counsel’s submissions and the summing up.

OPINION OF ASSESSORS

After summing up, the judge will request each assessor to give her opinion orally and then the
judge will record such opinion. S.82 TIA. The assessors may retire to consider their opinions
after summing up and if they so wish and during such retirement, they may consult with one
another. S.82(4) TIA.

It should be pointed out that the assessors’ opinions are not binding on the judge but where the
judge doesn’t conform to the opinions of the majority of assessors, she shall state her reasons
for departing from their opinions in her judgement. S. 82(3) TIA.

THE ROLE OF ASSESSORS IN CRIMINAL TRIALS.

As already pointed out, the opinion of assessors is not binding on the judge. The question then
arises, what then is their role in criminal trials?

The assessors’ role in the colonial days was to advise the colonial judges on questions of fact
and custom. They were present to protect against a possible miscarriage of justice. The
functions of assessors appear to be two fold; the duty to assess and advise- they assess or
weigh the evidence as a whole and decide whether the accused is guilty or not in the light of
their special knowledge as to the habits, customs, modes of thought, and language of the
particular society from which the accused comes. Assessors may be able to tell from the
accused demeanour that the accused or witness is telling a lie which may escape the presiding
judge’s mind.

Assessors’ also have a duty of advising the judge on matters upon which they have special
knowledge.

Briefly here we shall have to look at the following sections under the law.

Section 3 on the definition of who an assessor is. Section 67 on when to swear in the
assessors that s at the comessment of the trials

Under section 68 on the aspect of the advocate or the accused or the advocate of the
prosecution can challenge the personality of the assessor.
Under section 69 in case one or more of the assessors is not available or in case he absents
himself the it is advisable that the proceedings be restarted.
Under rule 1 of the assessor’s rules under the TIA the chief magistrate is required to carry out
appointments annually in every month of march. And under rule 3.in case the personality of an
assessor has been attacked then it is the chief magistrate or the magistrate grade one in the
area to entertain the matter during the appointments. And according to rule 4 of the assessors
rules you find that the chief magistrate is empowered to take further appointments during the
year and forward such names to be considered or taken as assessors.
And also under section 82 .4 the assessors have the right to retire first and go and consult each
other before giving their evidence and also under section 82.3. the judge has to give a reason
for not taking the assessor’s opinions.

As the RSA, make final submission on the offence of aggravated defilement.

"For the accused to be convicted of Aggravated Defilement, the prosecution must prove each of
the following essential ingredients beyond reasonable doubt;

That the victim was below 14 years of age.

That a sexual act was performed on the victim.
That it is the accused who performed the sexual act on the victim."

Add other aggravating factors

The first ingredient of the offence of Aggravated defilement is proof of the fact that at the time of
the offence, the victim was below the age of 14 years. The most reliable way of proving the age
of a child is by the production of her birth certificate, followed by the testimony of the parents. It
has however been held that other ways of proving the age of a child can be equally conclusive
such as the court’s own observation and common sense assessment of the age of the child.

The second ingredient required for establishing this offence is proof that the victim was
subjected to a sexual act. One of the definitions of a sexual act under section 129 (7) of the
Penal Code Act is penetration of the vagina, however slight by the sexual organ of another or
unlawful use of any object or organ on another person’s sexual organ. Proof of penetration is
normally established by the victim’s evidence, medical evidence and any other cogent evidence,

The last essential ingredient required for proving this offence is that it is the accused that
performed the sexual act on the victim. This ingredient is satisfied by adducing evidence, direct
or circumstantial, placing the accused at the scene of crime. In his defence, the accused stated
that he was returning from fishing on that day when he was asked by P.W.3 Aliga Felix to follow
him to the home of the victim's guardian from where he was surprised to be implicated in having
defiled the victim. He denied having committed the offence.

In order to place him at the scene of crime as the perpetrator of this act, the prosecution relies
on the testimony of P.W.5 Take Easy Immaculate who stated that it is the accused that dragged
her to a place under a tree and performed that act. She knew the accused before since they
lived in the same neighbourhood and on the fateful day, he engaged her in some talk before
dragging her away. It was not a sudden attack by a stranger. She therefore had ample time to
recognise him. Although it was dark, the accused was in close proximity. Her prior knowledge of
the accused is corroborated by the accused himself who in his defence admitted they were
lovers, although he denied that the affair involved sexual intercourse. Therefore in agreement
with both assessors, I find that this ingredient has been proved beyond reasonable doubt.

You are defense counsel, the accused raped the victim, the father of the victim took her
home and left her there and went to the police, the victim took a bath and after washing
the dress. The prosecution brought in this
dress and want to tender it in as an exhibit. Proceed.

Objection my Lord, the defense wishes to pray that the prosecution exhibit is not tendered in as
evidence in this trial because the chain of evidence was broken. Hence this exhibit cannot be
relied on. It has been tampered with and we don't know what else has been doctored by the
overzealous counsel for the state.

According to the law of chain of exhibits in Uganda. I beg that you don't tender it in.

Oppose a bail application in the high court

No case to answer
If the court finds that the accused has no case to answer, then he/she will be discharged. If
court finds that the accused has a case to answer, then he/she will be required to give his/her
defence by giving his/her testimony and/or calling witnesses to testify.

My Lord, The Prosecution proved the 1st, 2nd and 3rd elements of the Offence of Murder but
failed to prove the 4th element regarding participation of the Accused person (A4).

It is my humble submission that none of the three Prosecution witnesses gave any evidence
implicating Ssengendo Lawrencio (A4) in the participation of the murder of Kabugo Joseph. I
would like to point out to this Honourable Court that the only evidence available on record is that
Ssengendo Lawrencio (A4) was at the scene of crime.

My Lord, the Prosecution has failed to adduce evidence to prove the essential element of the
Offence of Murder with which Ssengendo Lawrencio (A4) is charged with. My Lord, the defense
contends that whereas A4 was arrested on the basis of PW2’s information to the Police. PW2
distanced Ssengendo Lawrencio (A4) from the crime. PW2 testified that he did not see A4
participate in the beating of the deceased although he was at the scene of crime.

My Lord, it would be a denial of justice to the Accused person, Ssengendo Lawrencio (A4) to
put him on defence when there is no credible evidence pointing to his guilt. I therefore pray that
this Honourable Court finds Ssengendo Lawrencio (A4) not guilty under Section 73 (1) of the
Trial Indictment Act, Cap 23 and acquit him of the Offence with which he is charged with and set
him free.

Murder
As per Sections 188 and 189 of the Penal Code Act, to constitute the offence of Murder, the
prosecution must prove the following ingredients beyond reasonable doubt;

● Death of a human being;

● That the death of the deceased was caused unlawfully;
● That the death of the deceased was caused with malice aforethought;
● That the accused participated in causing the death of the deceased.

How to prove death

It is trite law that death may be proved by production of a post mortem report or evidence of
witnesses who state that they knew the deceased and attended the burial or saw the dead
body. (See Uganda versus Anyao Milton Criminal Session No. 5 of 2017)

Malice aforethought
These are: the type of weapon used, the nature of injury or injuries inflicted, the part of the body
affected and the conduct of the attacker before and after the attack. Malice aforethought being a
mental element is difficult to prove by direct evidence.

Defence Counsel’s submissions in a murder case.

Counsel for the accused submitted that the Prosecution led evidence from 5 witnesses whose
evidence was very weak and had a lot of gaps including Pw1 who testified that she did not see
who killed her husband. Counsel further submitted that Pw2 and Pw3’s evidence was hearsay
evidence as they only heard about the death of the deceased.

Counsel also queried Pw4’s testimony (the dog handler) who testified during cross examination
that dogs could make mistakes and he further submitted that he was not the one who trained
the sniffer dog. Counsel argued that the dog evidence was weak in the sense that one could not
tell who entered the kitchen. He further submitted that the clothes that were recovered were
neither exhibited nor was a Government Analytical laboratory report made to prove fingerprints
of the accused even though the Police Officer (Turyakira Bruce) sent the clothes to Government
Analytical Laboratory (GAL) as testified by Pw5.

Counsel submitted that the accused pleaded alibi on account that A1 was attacked while on his
way home. Counsel argued that there was no criminal that could present himself in the home of
the deceased to get solace from there after the incident. Counsel also argued that no witness
was brought to prove that A2 had ever been seen wearing the blood stained clothes.

In conclusion, Counsel submitted that the prosecution failed to connect all the accused with the
offence of murder and prayed that they be acquitted.

1.You are the RSA on the day to appear you realise you forgot your file at home 20km
away from court. Proceed

*2.You are the judge and the case has been on murder however to you the case can be
manslaughter...what are the 5 instances that can reduce the charge from murder to
manslaughter.*

3.You (Magistrate) granted bail to an accused but he has never shown up to court and
you are informed that he actually escaped to Australia. Proceed.