Wakilii

Matsiko Edward v Uganda (Criminal Appeal No.75 of 1999)

Court of Appeal · [1999] UGCA 18 · 1999 Conviction Quashed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against conviction for murder from the High Court at Mbarara
Decision
Conviction quashed and death sentence set aside; retrial ordered before a different judge, appellant remanded in custody pending retrial

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal held that the trial judge's recorded remark that a witness 'appears to be very truthful' was an improperly drawn conclusion at the demeanour stage, and that there is no legal basis under the Trial on Indictment Decree for recording such remarks in High Court trials. The locus in quo proceedings were defective: the record did not show the appellant's presence as required by article 28(5) of the Constitution, nor that he was afforded an opportunity to cross-examine witnesses on what was said or demonstrated there. These flaws constituted a mistrial that could not be cured by the strength of the remaining evidence. The appeal was allowed, the conviction quashed, the death sentence set aside, and a retrial ordered before a different judge.

Facts

On or about 20 June 1995 at about 9.00 p.m., Charles Baryayebwa (the deceased) was seated in his kitchen washing his feet, with his son Mwebaze Ivan facing the door. A wick candle and burning firewood lit the kitchen. An attacker struck the deceased once on the neck with a panga and fled. Mwebaze identified the attacker as the appellant and shouted that his father had been killed. The deceased's wife came out and Mwebaze named the appellant. The deceased soon died of excessive bleeding from the deep cut wound. The appellant was arrested the next morning. The deceased and the appellant's father had a long-standing land dispute pending in the Chief Magistrate's Court after the deceased had won at the Local Council Courts. The prosecution case on identification depended wholly on Mwebaze, a single identifying witness. The appellant set up an alibi, which the trial judge rejected. The judge recorded a remark on Mwebaze's demeanour and conducted a locus in quo visit.

Issues

  1. Whether the trial judge's recorded remark on the demeanour of a witness during the trial was improper and prejudicial.
  2. Whether the proceedings conducted at the locus in quo, in the apparent absence of the accused and without opportunity to cross-examine, vitiated the trial.
  3. Whether, despite the flaws, the conviction could be sustained on the remaining identification evidence.

Orders

  • Appeal allowed.
  • Conviction quashed.
  • Sentence of death set aside.
  • Retrial ordered before a different judge.
  • Appellant to be kept in custody pending the retrial.

Key headnotes

Criminal Procedure — Recording of Witness Demeanour — High Court Trials
There is no legal basis under the Trial on Indictment Decree for the practice of recording remarks respecting the demeanour of witnesses at a trial before the High Court, the omission of any provision corresponding to section 139 of the Magistrates' Court Act being deliberate.
Witness Credibility — Premature Conclusions on Truthfulness
A judicial remark that a witness 'appears to be very truthful' exceeds the permissible limit of recording demeanour, as it conveys a conclusion that can properly be drawn only when considering the evidence as a whole after the close of both cases.
Locus in Quo — Purpose and Limits of a View
A view of the locus in quo is to check evidence already given and, where necessary and possible, to have it ocularly demonstrated; a judge must take great care not to constitute himself a witness, and neither a view nor personal observation may substitute for evidence.
Right to be Present at Trial — Locus in Quo Proceedings
An accused has a constitutional right under article 28(5) to be present during his trial, including proceedings at the locus in quo; his absence without a court order made on account of his conduct runs counter to that right and vitiates the proceedings.
Locus in Quo — Right to Cross-Examine Witnesses
Where witnesses speak to or demonstrate facts to the court at the locus in quo, the accused must be afforded an opportunity to cross-examine them; failure to do so is a departure from the cardinal principles of criminal procedure.
Mistrial — Effect of Defective Proceedings on Conviction
Proceedings at the locus in quo are an integral part of the whole trial and cannot be expunged; where an improper demeanour remark and defective locus proceedings constitute a mistrial, the conviction cannot stand merely because other evidence appears overwhelming.

Legislation cited (7)

  • Penal Code Act s.183
  • Magistrates' Court Act 1970 s.139
  • Trial on Indictment Decree No. 26 of 1971
  • Criminal Procedure Code Act (Cap 107) s.192
  • Criminal Procedure Code Act (Cap 107) s.201
  • Criminal Procedure (Recording of Evidence) Rules, SI No. 107-6
  • Constitution of Uganda article 28(5)

Cases cited (3)

  • Mukasa Vs. Uganda [1964] EA 698
  • Tameshwar and Another vs. R. [1957] 4 Cr. Appeal R 165
  • Karamat Vs. The Queen [1955] 40 Cr. App R 13
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.