Wakilii

Rev Father Santos Wapokra v Uganda [2016] UGHCCRD 48

High Court · 2016 Appeal Allowed — Conviction Set Aside — Retrial Ordered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from High Court at Adjumani conviction for aggravated defilement
Decision
Conviction and sentence set aside. Case remitted to High Court for retrial within three months, failing which appellant to be discharged.

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Holding

The Court of Appeal held that the appellant's trial was a nullity because he was never asked to plead to the amended indictment after the prosecution amended the dates of the offence, and he never pleaded to a charge that included the HIV status element that was ultimately used to convict him. Section 51(1)(a) of the Trial on Indictments Act requires that an accused plead to an altered indictment. Plea taking is a fundamental principle of fair trial under Article 28(3)(b) of the Constitution. The conviction and sentence were set aside, and a retrial was ordered given the gravity of the offence.

Outcome

Conviction and sentence set aside. Case remitted to High Court for retrial within three months, failing which appellant to be discharged.

Facts

The appellant, a Catholic priest aged about 43 years, was charged with aggravated defilement of a 15-year-old girl, Onen Jackline, at Pakwach Catholic Mission between March and November 2010. The original indictment stated the offence occurred between March and November 2010. On 21 December 2011, before the first prosecution witness testified, the prosecution applied to amend the dates to November 2009 to March 2010. The trial court allowed the amendment. The appellant pleaded not guilty to the original charge but was never asked to plead afresh to the amended indictment. During trial, the prosecution led evidence and tendered exhibits showing the appellant was HIV positive. The trial judge's judgment stated the particulars included that the appellant was infected with HIV when he committed the offence. However, this HIV status element was never formally part of any indictment the appellant pleaded to. The High Court convicted the appellant of aggravated defilement under section 129(3) and 4(b) of the Penal Code Act (which includes an HIV-positive accused as an aggravating factor) and sentenced him to 10 years imprisonment. The appellant had by the time of appeal spent two years on remand and served four years of his sentence.

Issues

  1. Whether the trial court erred in failing to have the appellant plead to the amended indictment before proceeding to trial.
  2. Whether the conviction was valid when the appellant did not plead to the HIV status component that formed part of the aggravated defilement charge.
  3. Whether the trial was a nullity by reason of the procedural irregularities in plea taking.
  4. Whether the Court should order a retrial or discharge the appellant.

Orders

  • Appeal allowed.
  • Conviction and sentence of ten years imprisonment set aside.
  • Trial before High Court at Adjumani Criminal Case No. 0067 of 2010 declared a nullity.
  • Retrial ordered on an indictment containing the components of aggravated defilement c/s 129(3)4(b) of the Penal Code Act, including the HIV status element.
  • Director of Public Prosecutions to indicate readiness for retrial within three calendar months from date of judgment, failing which the appellant shall be discharged.
  • High Court sitting at Arua/Adjumani to carry out retrial at earliest convenient Criminal Session, but not more than three months from date of judgment, otherwise appellant to be discharged.
  • Appellant to continue in custody subject to right to apply for bail from High Court at Arua/Adjumani.

Rules and key headnotes

Criminal Law & Procedure — Plea Taking — Amended Indictment — Mandatory Requirement to Plead Afresh
Section 51(1)(a) of the Trial on Indictments Act requires in mandatory terms that where an indictment is altered under Section 50, the Court shall thereupon call upon the accused person to plead to the altered indictment. This is a penal section and must be strictly interpreted. Plea taking is a fundamental principle of a fair trial.
Constitutional Law — Fair Trial Rights — Right to Be Informed of Charge — Article 28(3)(b)
Article 28(3)(b) of the Constitution provides that every person charged with a criminal offence shall be informed immediately, in a language that the person understands, of the nature of the offence. The charge to which an accused pleads serves the purpose of notice and intimation of the nature of the accusation the accused is called upon to meet in the trial. Any material alteration in the charge that introduces a new offence or provision of law calls for the accused to plead afresh to that charge.
Criminal Law & Procedure — Nullity — Failure to Take Plea to Amended Indictment
Where an accused does not plead to a charge, the trial is a nullity. An accused cannot be convicted on an indictment to which he never pleaded. The trial proceedings, conviction, and sentence must be set aside as wrong in law.
Criminal Law & Procedure — Retrial — Principles for Ordering Retrial
The overriding purpose of a retrial is to ensure that the cause of justice is done. A retrial may be ordered where the original trial was illegal or defective, but the Court must investigate whether the irregularity warrants a retrial. A retrial must not be used by the prosecution as an opportunity to fill gaps in its evidence. A retrial is not to be ordered where it will obviously result in an injustice or deprive the accused of the chance of an acquittal. Each case depends on its particular facts and circumstances.
Criminal Law & Procedure — Retrial — Factors to Consider — Gravity of Offence and Interests of Justice
In deciding whether to order a retrial, the Court must consider the strength of the prosecution case, the seriousness of the offence, whether the original trial was complex and prolonged, the expense of the new trial to the accused, the ordeal of a criminal trial, the length of time between commission of the offence and the new trial, and whether evidence will be available at the new trial. Where the offence is grave and both prosecution and defence cases are not flimsy, the interests of justice may demand a retrial notwithstanding the passage of time and the accused's time already spent in custody.
Criminal Law & Procedure — Evidence — Scope of Evidence Admissible — Evidence Must Relate to Charge Pleaded
Any evidence adduced at trial must be in respect of only those matters stated in the charge to which the accused has pleaded, and not others. Evidence going to matters not contained in the charge the accused pleaded to cannot form the basis of a conviction, even if such evidence is admitted and the trial judge considers it in the judgment.

Legislation cited (4)

Cases cited (7)

  • Zachary Kataryeba & 3 Others v 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

Full judgment

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

Rev Father Santos Wapokra v Uganda [2016] UGHCCRD 48 (7 June 2016)
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.