Wakilii

Kassim v Uganda (Criminal Appeal 1 of 1981)

Court of Appeal · [1983] UGCA 3 · 1983 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court conviction and sentence for murder
Decision
Conviction and death sentence for murder upheld; appeal dismissed.

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Holding

The Court of Appeal held that proceeding with one assessor under s.67(1) of the Trial on Indictments Decree was lawful where the absent assessor could not be enforced to attend. Although allowing the returned assessor to resume and give an opinion was a breach of s.67(1), the trial had been conducted substantially in the prescribed manner because the assessor had heard all the evidence and missed only counsel's address, which is not evidence. The irregularity, like the defective indictment naming an uncommitted person, did not occasion a failure of justice and was curable under s.137. The eye-witness evidence of Ssebunya alone sufficiently supported the conviction. The appeal was dismissed.

Facts

On 23 November 1973 the deceased, Samson Ddungu, was charged with several offences and taken before a Chief Magistrate, who discharged him on the prosecutor's application and ordered his release. Fearing he would be killed, the deceased unsuccessfully sought to be sent to prison, then escaped, but was recaptured and driven, handcuffed, to Naguru Public Safety Unit. There he was shot dead in the yard. The prosecution case was that the appellant, a uniformed officer, shot the deceased. Eye-witness Ssebunya testified that the appellant ordered the deceased to face the fence and shot him while he pleaded for mercy, addressing the appellant as his brother-in-law. Another eye-witness, Kabuuka, gave a partly differing account involving prior flogging. The appellant denied involvement and set up an alibi. At trial one assessor absented himself during counsel's address, then returned and gave an opinion; both assessors advised conviction and the judge convicted the appellant of murder.

Issues

  1. Whether proceeding with the trial with only one assessor after the other absented himself rendered the trial a nullity.
  2. Whether allowing an absent assessor to resume his seat and give an opinion after missing part of the proceedings rendered the trial a nullity or was a curable irregularity.
  3. Whether the inclusion on the indictment of a person not committed for trial rendered the indictment fatally defective.
  4. Whether the trial judge's summing up improperly directed the assessors to convict and shifted the burden of proof.
  5. Whether the trial judge properly evaluated the prosecution evidence to support the conviction.

Orders

  • Conviction upheld.
  • Appeal dismissed.

Key headnotes

Criminal Procedure — Trial with Assessors — Proceeding with One Assessor under s.67(1) Trial on Indictments Decree
Where an assessor absents himself and it is not practicable immediately to enforce his attendance, the trial may lawfully proceed with the aid of the remaining assessor, and the existence of sufficient cause need not be established.
Criminal Procedure — Assessors — Return of Excluded Assessor
Once a decision has been taken under s.67(1) of the Trial on Indictments Decree to proceed with one assessor, the absentee ceases to be an assessor and it is wrong to allow him later to resume his seat and give an opinion on the case.
Criminal Procedure — Irregularities — Curable Defects under s.137 Trial on Indictments Decree
Where a trial is conducted substantially in the manner prescribed by the Code, an irregularity that does not occasion a failure of justice is curable; thus permitting a returned assessor who had heard all the evidence and missed only counsel's address to give an opinion is a curable irregularity.
Criminal Procedure — Indictment — Inclusion of Person Not Committed for Trial
The inclusion on an indictment of a person who was not committed for trial renders the indictment defective, but where it does not occasion a failure of justice the defect is curable under s.137 of the Trial on Indictments Decree.
Evidence — Single Eye-Witness — Sufficiency to Support Conviction
Despite contradictions among prosecution witnesses, the credible direct evidence of a single eye-witness who observed the killing at close quarters in broad daylight may be sufficient to support a conviction for murder.

Legislation cited (7)

  • Trial on Indictments Decree s.3(1)
  • Trial on Indictments Decree s.67(1)
  • Trial on Indictments Decree s.137
  • Trial on Indictments Decree s.48
  • Magistrates' Courts Act s.119
  • Indian Criminal Procedure Code s.162
  • Indian Criminal Procedure Code s.537

Cases cited (5)

  • Moses Kashaija & two others v. Uganda E.A.C.A. Cr. App. No.131/76 (1977) H.C.B. 51
  • Rex v. Assa Singh (1937) E.A.C.A.
  • Rex v. Roman Bin Mwakiponya (1937) E.A.C.A. 6
  • Joseph Kabui v. Reginam (1954) 21 E.A.C.A. 260
  • Kottaya v. Emperor (1947) A.I.R. (34) 67
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.