Wakilii

James Sawoabiri and Another v Uganda (CRIMINAL APPEAL NO. 5 90)

Supreme Court · [1991] UGSC 34 · 1991 Appeal Allowed — Convictions Quashed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Criminal appeal against conviction and sentence from a High Court trial
Decision
Convictions quashed and sentences set aside; trial deemed a nullity; no retrial ordered; appellants set free forthwith unless otherwise lawfully held.

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Holding

The Supreme Court allowed the appeals against convictions for attempted robbery. While the right to counsel of one's choice under Article 15(2)(d) is not absolute and the trial judge was entitled to proceed when chosen counsel was absent, refusing to recall prosecution witnesses so that the appellants—who had been unprepared to cross-examine—could test their evidence violated the right to a fair hearing. The court also held that the judge erred in law by considering and accepting the prosecution evidence in isolation, treating facts as proved 'beyond doubt' before turning to the defence, and by misusing the appellants' failure to cross-examine. Both grounds succeeded; the trial was a nullity. Convictions quashed, sentences set aside, no retrial ordered.

Facts

The appellants were charged with the aggravated robbery of Dr. Ingrid Rissom, who was forcibly ejected from her Mercedes Benz near her gate in Bugolobi, Kampala, in May 1988; one assailant was said to have pointed a pistol. At trial the appellants' privately-retained advocate failed to appear when the hearing began, and the appellants rejected a state-brief advocate, electing to defend themselves. When the first three prosecution witnesses testified, the appellants said they were unprepared to cross-examine. Their advocate later resumed the defence and applied to recall two witnesses for cross-examination; the trial judge refused, citing delay. The judge convicted the appellants of attempted simple robbery under sections 272 and 274 of the Penal Code and sentenced each to three years' imprisonment, disagreeing with both assessors who had favoured acquittal. The appellants had relied on an alibi and called three witnesses; the arresting officer was never called.

Issues

  1. Whether the appellants were denied a fair hearing when the trial proceeded in the absence of their chosen counsel and the court declined to adjourn.
  2. Whether the refusal to recall prosecution witnesses for cross-examination by subsequently-appearing defence counsel violated the appellants' right to a fair hearing.
  3. Whether the trial judge erred in law by failing to evaluate the whole of the evidence and basing the conviction on the prosecution evidence considered in isolation.
  4. Whether a retrial should be ordered following the quashing of the convictions.

Orders

  • Appeals allowed.
  • Convictions quashed and sentences set aside.
  • No order for a retrial.
  • Appellants to be set free forthwith unless otherwise lawfully held.

Key headnotes

Constitutional Law — Fair Hearing — Right to Counsel of Own Choice (Article 15(2)(d))
The right of an accused person to be defended by counsel of his own choice is not absolute; where chosen counsel is absent without explanation, the court is not bound to adjourn indefinitely and may direct the accused to conduct his own defence.
Criminal Procedure — Cross-Examination — Refusal to Recall Prosecution Witnesses
Where an accused was unprepared to cross-examine prosecution witnesses and his counsel subsequently seeks their recall for that purpose, refusal to allow the recall denies the accused the opportunity to test the prosecution evidence and amounts to a violation of the constitutional right to a fair hearing.
Evidence — Evaluation of Evidence — Duty to Consider the Whole Evidence
A trial judge errs in law by considering the prosecution evidence in isolation and accepting it as proved beyond doubt before turning to the defence; the whole of the evidence, prosecution and defence, must be evaluated together before findings of guilt are made.
Evidence — Unchallenged Evidence — Inference from Failure to Cross-Examine
An omission to challenge evidence-in-chief by cross-examination ordinarily implies acceptance of that evidence, but the inference is rebutted where the failure to cross-examine was caused by the court's own refusal to permit cross-examination or recall; it is then an error to treat the evidence as accepted merely because it was unchallenged.
Criminal Procedure — Retrial — Principles Governing the Order
Whether a retrial is ordered after a conviction is quashed depends on the particular facts of each case; a retrial that would merely enable the prosecution to fill gaps in the evidence left at the first trial, or that would cause injustice to the accused, should not be ordered.

Legislation cited (9)

  • Penal Code Act s.272
  • Penal Code Act s.273(2)
  • Penal Code Act s.274
  • Penal Code Act s.274A
  • Constitution of Uganda Article 15(1)
  • Constitution of Uganda Article 15(2)(d)
  • Constitution of Uganda Article 15(2)(e)
  • Trial on Indictments Decree s.70
  • Fire Arms Act s.31(4)

Cases cited (6)

  • Galos Hired v The King (1944) AC 149
  • Adamu v Attorney General of Bendel State (1986) LRC (Crim) 27
  • Ahmed Ali Dharamsi Sumar v Republic (1964) EA 481
  • Uganda v Dusman Sabuni [1981] HCB 1
  • Charles Komiswa v Uganda [1979] HCB 86
  • Alfred Tajor v Uganda (Criminal Appeal No. 167 of 1969)
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.