Wakilii

Dr. Stella Nyanzi V Uganda (Criminal Revision No. 024 of 2019)

High Court · [2019] UGHCCRD 39 · 2019 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal revision application arising from Chief Magistrate's Court criminal trial proceedings
Decision
Revision application dismissed; matter remitted to trial magistrate to conclude the underlying criminal trial

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Holding

The High Court dismissed the criminal revision application arising from the Chief Magistrate's Court trial. The Court found that the trial magistrate did not interfere with the accused's right to call witnesses or violate her right to a fair hearing. The trial magistrate properly declined to issue arrest warrants where defence counsel failed to justify non-attendance of witnesses and did not properly prepare witnesses for trial. The Court held that the trial magistrate's closure of the defence case after seven adjournments during which the defence failed to produce witnesses without justifiable cause did not constitute a miscarriage of justice. The allegation of judicial bias was rejected as unjustified.

Outcome

Revision application dismissed; matter remitted to trial magistrate to conclude the underlying criminal trial

Facts

Dr. Stella Nyanzi was on trial before the Chief Magistrate's Court at Buganda Road (Criminal Case No. 1115 of 2018). When put on her defence on 21 June 2019, she chose to remain silent and call witnesses. Defence initially indicated 5-7 witnesses, later increasing to 20. Court issued summons on 26 June 2019 and scheduled multiple hearing dates. On 3 July 2019, defence counsel informed court they had not effected service and that witnesses were not even aware they were defence witnesses and counsel could not state what testimony they would give. Defence also declined to name four minor witnesses. On 9 July 2019, DW1 (Mr. Mustapha Mugisha) appeared but protested he did not know why he was in court or who the accused was, despite defence counsel having requested and been granted 45 minutes to brief him. The trial magistrate adjourned to allow defence to prepare the witness. On subsequent dates, defence continued to report that witnesses had not been served or would not attend without being compelled by court. Defence counsel then requested to advertise in newspapers for voluntary witnesses. The trial magistrate eventually closed the defence case. Dr. Nyanzi then applied for criminal revision on nine grounds.

Issues

  1. Whether the learned trial magistrate interfered in the accused person's autonomy in choosing the witnesses she wished to call and the order.
  2. Whether it was the duty of the court to effect service of summons on the defence witnesses.
  3. Whether the trial court failed to facilitate the attendance of Defence witnesses.
  4. Whether it was wrong for the trial court to order the accused to only obtain attendance of witnesses known to her, partisan or personally interested in the outcome of the accused person's case and willing to testify without being compelled by the court.
  5. Whether the learned trial magistrate accorded the accused person a fair hearing under Article 28 of the Constitution.
  6. Whether the trial Magistrate was biased against the accused person and descended into the arena during the trial in the impugned proceedings.

Orders

  • Application dismissed.
  • File to be transmitted back to the trial magistrate to hear the case conclusively within reasonable time to meet the ends of justice.

Rules and key headnotes

Defence Case — Right to Call Witnesses — Order of Presentation — Discretion
While an accused person may at times be given the option to call witnesses in any order as he or she wishes, when its witnesses testify before the accused does, it is a factor to be considered by the trial court of fact in weighing the evidence, as the witness's evidence is open to the suggestion that it may have been made deliberately to conform to earlier testimony heard.
Service of Witness Summons — Responsibility of Court vs Defence — Court Process Server
Where a law clerk certified as a court process server is attached to a law firm representing an accused person and that clerk receives witness summons from court and effects service on some witnesses without counsel raising any objection, the trial court has no obligation to effect service of summons on defence witnesses who were known to the accused and her counsel and whom the defence were effecting service through a court process server.
Defence Witnesses — Preparation and Duty of Defence Counsel — Briefing Witnesses
Defence counsel has a duty to properly prepare and brief defence witnesses before they testify, including informing them of the nature of the case and the evidence they are expected to give. Where a defence witness appears in court but has not been briefed and does not know why he is in court or what case he is testifying about, the trial court is entitled to adjourn to allow the defence to prepare the witness, and counsel's failure to do so cannot be visited upon the trial court.
Fair Hearing — Right to Call Witnesses — Limits — Delay and Abuse of Process
The right to a fair hearing includes the right to call witnesses in one's defence, but where defence counsel fails to produce defence witnesses without justifiable cause after being given multiple adjournments and fails to provide a clear explanation as to when witnesses will be able to attend court, further adjournment risks violation of the constitutional right to a fair and expeditious trial and would amount to an abuse of court process, justifying closure of the defence case.
Right to Fair Hearing — Article 28 — Provision of Trial Record for Defence Preparation
In preparing for defence, courts must promote the spirit, purpose and objects of natural justice. It is good practice to avail an accused person typed and certified proceedings where resources allow and considering the volume of proceedings and complexity of the case, as this is helpful in preparing for their defence, even where the accused person and counsel have been present throughout the trial.
Judicial Bias — Test for Bias — Impression of Reasonable Person
In considering whether there was a real likelihood of bias, the court does not look at the mind of the judicial officer who sits in a judicial capacity. The court looks at the impression which would be given to other people. Even if the judicial officer was as impartial as could be, if right-minded persons would think that in the circumstances there was a real likelihood of bias, then the judicial officer should not sit. Nevertheless, there must appear to be a real likelihood of bias; surmise or conjecture is not enough.
Criminal Revision — Supervisory Jurisdiction of High Court — Powers
Under Section 17(1) of the Judicature Act and Section 48 of the Criminal Procedure Code Act, the High Court exercises general supervisory jurisdiction over magistrates' courts and may call for and examine the record of any criminal proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, or as to the regularity of any proceedings.

Legislation cited (17)

Cases cited (6)

  • R v Smith [1968] 1 WLR 636 (CA)
  • R v Smuk (1871) 3 C ChC (2d) 457
  • Charles Harry Twagira v Uganda (Criminal Appeal No. 27 of 2003)
  • Woolmington v DPP [1935] AC 462
  • GM Combined Ltd v AK Detergents (U) Ltd (Civil Appeal No. 7 of 1998)
  • Ex parte Barnsley and District Licensed Valuers Association [1960] 2 QB 169

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Dr. Stella Nyanzi V Uganda (Criminal Revision No. 024 of 2019) [2019] UGHCCRD 39 (31 July 2019)
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.