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Bakole and Others v Uganda (Criminal Appeal No. 232 of 2011)

Court of Appeal · [2021] UGCA 76 · 2021 Appeal Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Consolidated criminal appeals from High Court (Anti-Corruption Division): appeal against conviction and sentence (Appeal No. 232 of 2011) and DPP appeal against acquittal (Appeal No. 244 of 2011)
Decision
Appellant Bakole Hamza's conviction substantially upheld but conspiracy count quashed; DPP appeal allowed, acquittals of the two tellers set aside and convictions substituted, both remanded for sentencing

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Holding

The Court of Appeal largely dismissed Bakole Hamza's appeal against conviction for causing financial loss and embezzlement, finding the trial Judge properly evaluated the evidence, that secondary CCTV evidence backed up on CDs was admissible despite loss of the original hard disk, and that double jeopardy did not apply. However, since causing financial loss and conspiracy to defraud were effectively charged in the alternative, the conspiracy conviction (count 4) was quashed and that sentence set aside. The DPP's appeal succeeded: the acquittals of two bank tellers were set aside and convictions substituted, the Court holding that tellers who credited accounts with cash they never received knew or had reason to believe this would cause financial loss under s.20 of the Anti-Corruption Act.

Facts

Between August and December 2010, six accused, including bank officials at Barclays Bank Masindi branch, were alleged to have conspired to defraud the bank of hundreds of millions of shillings. Fictitious pay-in slips, unaccompanied by cash, were used to credit two accounts associated with the first accused's sibling and a company he owned. Whenever these accounts were credited at Masindi, equivalent sums were almost immediately withdrawn in Kampala. CCTV footage showed no physical cash transactions corresponding to the credited deposits. Bakole Hamza was the branch manager; Kamacooko Onesmas and Zziwa Joseph were tellers. Bakole was convicted at trial of causing financial loss, embezzlement and conspiracy. The two tellers were acquitted on the basis that they had merely followed the manager's instructions and were truthful. Bakole appealed his conviction and sentence; the DPP appealed the tellers' acquittals. Evidence established the tellers prepared false end-of-day balances acknowledging cash they had not actually received.

Issues

  1. Whether charging causing financial loss and conspiracy to defraud arising from the same facts as substantive counts (rather than in the alternative) was bad in law and occasioned a miscarriage of justice.
  2. Whether secondary CCTV video evidence backed up on CDs was properly admitted where the original hard disk had been lost.
  3. Whether the trial Judge properly evaluated the evidence in convicting the appellant of causing financial loss, embezzlement and conspiracy to defraud.
  4. Whether convicting the appellant of both causing financial loss and conspiracy to defraud (charged in the alternative) was proper.
  5. Whether the prosecution proved beyond reasonable doubt that bank tellers who credited accounts without receiving cash, on the manager's instructions, knew or had reason to believe their acts would cause financial loss under s.20 of the Anti-Corruption Act.

Orders

  • Ground four of Appeal No. 232 of 2011 succeeds; the conviction on count 4 (conspiracy to defraud) is quashed and the sentence set aside.
  • Appeal No. 232 of 2011 substantially fails and is dismissed save for ground 4 and the order on holding office in a financial institution.
  • The order barring the appellant from holding office in a financial institution is set aside and substituted with an order barring him for 10 years from 22 November 2018, the date of conviction.
  • Appeal No. 244 of 2011 (DPP appeal) succeeds on both grounds.
  • The acquittal of the first respondent (Kamacooko Onesmas) is set aside and a conviction substituted on both counts.
  • The acquittal of the second respondent (Zziwa Joseph) is set aside and a conviction substituted on both counts.
  • Bail in respect of each convicted respondent lapses; both are remanded in prison pending allocutus and sentencing.

Key headnotes

Indictment — Alternative Counts — Conviction on Both Causing Financial Loss and Conspiracy to Defraud
Where charges against an accused are effectively in the alternative, the proper course upon conviction on one count is to refrain from entering a verdict on the other; a conviction for conspiracy to commit a felony cannot stand alongside a conviction for the substantive offence arising from the same facts.
Electronic Evidence — Secondary Evidence — Admissibility of CCTV Backups Where Original Hard Disk Lost
Secondary electronic evidence such as CCTV footage backed up onto CDs is admissible where the original hard disk has been lost, applying the principle in section 64(1)(c) of the Evidence Act that secondary evidence may be given where the original is destroyed or lost, provided the backups are authenticated.
Causing Financial Loss — Anti-Corruption Act s.20 — Mens Rea of Bank Officials
A bank teller who credits a customer's account with cash he has not actually received, and prepares false end-of-day balances acknowledging such cash, knows or has reason to believe his act will cause financial loss to his employer and is criminally liable under section 20 of the Anti-Corruption Act, regardless of having acted on a superior's instructions.
Employee Liability — Following Superior's Instructions No Defence to Statutory Duty
An employee owes an independent legal duty to ensure records reflect what actually transpired; trusting a superior's word that cash was received does not absolve a teller who acknowledges receipt of money he never physically received, where any reasonable person would have appreciated the risk of financial loss.
Constitutional Right — Article 23(8) — Deduction of Pre-Trial Custody Limited to Lawful Custody
Article 23(8) of the Constitution relates only to time spent in lawful custody; days spent unlawfully detained at a police station beyond the lawful 48-hour period cannot be deducted in computing sentence, the remedy being a civil action for unlawful detention.

Legislation cited (13)

  • Anti-Corruption Act s.20(1)
  • Anti-Corruption Act s.19(b)
  • Anti-Corruption Act s.49
  • Penal Code Act s.309
  • Electronic Transactions Act 2011 s.5(1)
  • Electronic Transactions Act 2011 s.8(1)
  • Electronic Transactions Act 2011 s.7
  • Evidence Act Cap 6 s.64(1)(c)
  • Constitution of Uganda Article 23(8)
  • Constitution of Uganda Article 28(9)
  • Criminal Procedure Code Act s.34(1)
  • Trial on Indictments Act s.139
  • Court of Appeal Rules r.30(1)

Cases cited (10)

  • Seifu S/O Bakar vs R [1960] EA 338
  • Marjani vs Uganda [1967] EA 111
  • Serunkuma Edirisa and Others v Uganda (Criminal Appeal No. 0147 of 2015)
  • Kemeze and Matovu v Uganda (Criminal Appeal No. 231 of 2011)
  • Oryem Richard v Uganda (Criminal Appeal No. 22 of 2014)
  • Bogere Moses and Another v Uganda (Criminal Appeal No. 1 of 1997)
  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • R vs Traine & Another [1984] 4 F & F 104
  • Scott vs Metropolitan Police Commissioner (1974) 3 All ER 1032
  • R vs Anderson [1985] ALL ER
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.