Wakilii

Nsubuga Ismail V Uganda (High Court Criminal Appeal No. 0053 of 2018)

High Court · [2018] UGHCCRD 229 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to re-open defence case in ongoing criminal trial for defilement
Decision
Defence case re-opened; police officer to be summoned to tender statement

Observed later treatment

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Holding

The High Court held that an accused person may re-open a defence case after submissions but before summing up to assessors where the evidence appears essential for a just decision and no prejudice would be occasioned to the prosecution. The court exercised its discretionary powers under section 39 of the Trial on Indictments Act to summon a police officer as a court witness to tender the accused's charge and caution statement, which the accused claimed supported his defence of a grudge with the complainant's mother. The right to a fair trial under Article 28 of the Constitution requires that essential evidence be placed before the court, and denial of the application would occasion a miscarriage of justice.

Outcome

Defence case re-opened; police officer to be summoned to tender statement

Facts

The applicant was the accused in Criminal Case No. 564/2016, charged with defilement of Nabakka Melisa. During trial, the applicant gave evidence claiming he had wrangles with the victim's mother, Harriet Namuddu. The prosecution in submissions characterised the evidence of the grudge as an afterthought. The applicant claimed he had mentioned this grudge in a charge and caution statement recorded by DIC/ASP Dusabe Innocent on 25 July 2013. The statement was not tendered during the defence case. After closure of defence and submissions by both parties but before summing up to assessors, the applicant applied to re-open his defence to call the police officer who recorded the statement to tender it in evidence. The prosecution opposed, arguing the applicant had denied making any statement when on oath and had been given adequate opportunity to call witnesses during the defence case.

Issues

  1. Whether the court should grant leave to the accused to re-open his defence case after closure of defence and submissions but before summing up to assessors.
  2. Whether the accused should be permitted to call a police officer to tender a charge and caution statement that was not presented during the defence case.

Orders

  • Application allowed.
  • Witness summons to issue to the Police Officer through the Inspector General of Police to appear and present the charge and caution statement to court.

Rules and key headnotes

Criminal Law & Procedure — Trial on Indictment — Re-opening Defence Case — Timing — Application Made After Submissions But Before Summing Up to Assessors
A trial on indictment before the High Court ends with the summing up to assessors, not with the closure of submissions. An application to re-open the defence case made after submissions but before summing up is not premature and the court retains jurisdiction to entertain it.
Criminal Law & Procedure — Trial on Indictment — Court's Power to Summon Witnesses — Section 39 Trial on Indictments Act — Exercise of Discretion
Section 39 of the Trial on Indictments Act confers on the court a discretionary power at any stage of the trial to summon any person as a witness where that person's evidence appears essential for the just decision of the case. Once the court determines that evidence is essential for a just determination, it is under a duty to call the witness. These powers must be exercised judicially and reasonably and not in a way likely to prejudice the accused.
Criminal Law & Procedure — Fair Trial — Right to Present Defence Evidence — Article 28 Constitution — Miscarriage of Justice
The right to a fair trial under Article 28 of the Constitution requires that an accused be afforded a reasonable opportunity to present evidence essential to his defence. Where the accused believes a statement recorded by police is vital for his defence, denying him the opportunity to tender it through the appropriate witness after closure of the defence case but before the trial ends would occasion a miscarriage of justice, particularly where the statement was not placed on record by the prosecution and no prejudice would be occasioned to the State.
Evidence — Documentary Evidence — Charge and Caution Statement — Who May Tender the Statement
An accused person who did not personally record his own charge and caution statement cannot be the proper person to tender it in evidence. The police officer who recorded the statement must be called to explain the manner and circumstances in which it was recorded before it can be properly admitted.

Legislation cited (7)

Cases cited (4)

  • Stephen Karekona v Uganda (Criminal Appeal No. 10 of 1998)
  • Ihunde Jimmy v Uganda (Criminal Appeal No. 17 of 2001)
  • Uganda v Borespeyo Mpayo [1975] HCB 245
  • R vs. Sidman [1923] IKB 47

Full judgment

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

Nsubuga Ismail V Uganda (High Court Criminal Appeal No. 0053 of 2018) [2018] UGHCCRD 229 (5 June 2018)
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.