Wakilii

Wapokra v Uganda (Criminal Appeal No. 204 of 2012)

Court of Appeal · [2016] UGCA 33 · 2016 Appeal Allowed — Retrial Ordered ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against conviction and sentence for aggravated defilement by the High Court
Decision
Conviction and sentence set aside; trial declared a nullity; retrial ordered with the appellant remaining in custody subject to bail and to discharge if the DPP fails to proceed within three months

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Holding

The Court of Appeal held that the trial was a nullity because the appellant was never called upon to plead to the amended indictment, contrary to the mandatory requirements of section 51(1)(a) of the Trial on Indictments Act, and was convicted partly on an HIV-status component never properly placed before court or pleaded to. Plea-taking is a fundamental principle of a fair trial protected by Article 28(3)(b) of the Constitution. The conviction and ten-year sentence were set aside. Given the grave nature of the offence and the interests of justice, the Court ordered a retrial on the properly constituted indictment, subject to the DPP indicating readiness within three months, failing which the appellant would be discharged.

Facts

The appellant, a Catholic priest, was charged with aggravated defilement of Onen Jackline, a girl under 18, allegedly committed at Pakwach Catholic Mission, Nebbi District. He pleaded not guilty to the original indictment on 21 December 2011. On the same day, before the first witness testified, the prosecution applied to amend the indictment only as to the dates of the offence (substituting November 2009–March 2010 for March–November 2010), which the court allowed. The appellant was never called upon to plead to the amended indictment. The trial proceeded with seven prosecution witnesses; the appellant testified denying the offence. Although the indictment was never amended to allege that the appellant was infected with HIV, the trial judge admitted evidence (including exhibits) on the appellant's HIV status, summed up to the assessors on it, and convicted him of aggravated defilement under section 129(3) and (4)(b), sentencing him to ten years. The appellant had spent two years on remand and served four years of the sentence.

Issues

  1. Whether the failure to call upon the appellant to plead afresh to the amended indictment rendered the trial a nullity.
  2. Whether the conviction could stand where evidence and judgment were based on matters (HIV status) not part of the indictment to which the appellant pleaded.
  3. Whether a retrial or a discharge should be ordered upon nullifying the trial.

Orders

  • The conviction and sentence of ten years' imprisonment for aggravated defilement is set aside by reason that the trial in High Court Criminal Case No. 0067 of 2010 was a nullity.
  • A retrial of the case is ordered.
  • The retrial shall be on an indictment containing only the components of the offence in respect of which the first trial was held but not pleaded to, namely aggravated defilement c/s 129(3)(4)(b) of the Penal Code Act relating to unlawful sexual intercourse with Onen Jackline while infected with HIV.
  • The Director of Public Prosecutions is to indicate readiness to have the case heard within three calendar months, failing which the High Court at Arua or Adjumani shall discharge the appellant.
  • The High Court at Arua/Adjumani is to carry out the retrial at the earliest convenient Criminal Session, not more than three months from the date of judgment, otherwise the appellant shall be discharged.
  • The appellant shall continue to be kept in custody, subject to his right to apply for bail from the High Court at Arua/Adjumani.

Key headnotes

Criminal Procedure — Amendment of Indictment — Mandatory Plea to Altered Charge
Where an indictment is altered, section 51(1)(a) of the Trial on Indictments Act mandatorily requires the court to call upon the accused to plead to the altered indictment; failure to do so renders the trial a nullity.
Fair Trial — Right to be Informed of the Nature of the Offence — Article 28(3)(b)
Plea-taking is a fundamental principle of a fair trial; the charge serves as notice to the accused of the accusation to be met, and any material alteration introducing a new offence or provision of law requires the accused to plead afresh.
Criminal Procedure — Evidence Confined to Particulars of the Charge
Evidence adduced at trial and findings in judgment must relate only to matters stated in the indictment; a conviction founded on a component (such as HIV status) never included in the indictment or pleaded to cannot stand.
Criminal Procedure — Retrial — Principles Governing the Exercise of Discretion
An order for a retrial is a judicious exercise of discretion guided by considerations including the seriousness of the offence, the strength of the cases, avoidance of double jeopardy, and the interests of justice; a retrial must not allow the prosecution to fill gaps in its evidence nor be ordered where it would deprive the accused of a chance of acquittal.

Legislation cited (5)

  • Penal Code Act s.129(3)
  • Penal Code Act s.129(4)(b)
  • Trial on Indictments Act s.51(1)(a)
  • Trial on Indictments Act s.50
  • Constitution of Uganda Article 28(3)(b)

Cases cited (7)

  • Zachary Kataryeba & 3 Others vs Uganda [1997] KALR 31
  • Fatehali Manji v R [1966] EA 343
  • Ahmed Ali Dharamsi Sumar v R [1964] EA 481
  • RATILAL SHAHUR [1958] EA 3
  • Muyimbo v R [1969] EA 433
  • M'Kanake v R [1973] EA 67
  • Tamano v R [1969] EA 126
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.