[2024] UGCA 234

### THE REPUBLIC OF UGANDA

### IN THE COURT OFAPPEAL OF UGANDAAT KAMPALA

lCoram: Egonda-Ntende, Barishaki Cheborion & Mugenyi, JJA)

Criminal Appeal No. 353 of 2019

(Arisingfrom High Court Criminal Session Case No. 75 of 2018 at Mukono)

### BETWEEN

| :::Appellant | |--------------| | |

#### AND

Uganda Respondent

(On Appealfrom the judgment of the High Court of Uganda (Mutonyi, J.,) delivered on the l2th June 2019 at Mukono)

#### JUDGMENT OFTHE OURT

#### lntroduction

- tl] The appellant was convicted on his own plea of guilty, following a plea bargain agreement of the oflence of aggravated defilement contrary to sections 129 (3), (4) (a) ofthe Penal Code Act. The particulars ofthe offence are that on the 7th April 2018 at Seeta, Gongobe Zone, the appellant performed a sexual act on a girl, 6 years old. He was sentenced to serve a term of imprisonment of 20 years inclusive of the period spent on remand. He appealed against both conviction and sentence. - l2l 3 grounds ofappeal have put forth by the appellant and we shall set them out below.

'l. That the leamed trial judge ened in law and fact when she convicted the appellant on his plea of guilty without following the right procedure.

2. That the learned trial judge ened in law and fact when she ignored the appellant's mitigating factors when sentencing him.

3. That the learned trial judge erred in law and fact when she imposed a harsh and excessive sentence of20 years imprisonment on the appellant given the circumstances of the case.'

- t3] The respondent opposed the appeal against conviction and at the hearing of this appeal conceded that the sentence was illegal on account of failure to comply with article 23 (8) of the Constitution. - 14) At the hearing Ms Barbara Kawuma, Assistant Director of Public Prosecutions in the Office of the Director, Public Prosecutions, holding brief for Ms Samalie Wakholi, Assistant Director of Public Prosecutions appeared for the respondent while Ms Sheila Kihumuro, appeared for the appellant, on state brief. Both counsel filed written submissions.

### Facts of the Appeal

- t5] The appellant, with the assistance of his counsel, signed a plea bargain agreement in the court below. When he was arraigned for trial in the High Court and the charges were read to him he admitted the offence and a guilty plea was entered by the trial court. Counsel for the appellant then waived the right to have the facts ofthe case read out to the accused person on the ground that the appellant knew the facts and had admitted them in the plea bargain agreement. Nevertheless, Ms Rachael Namutebi, appearing for the state, stated briefly the facts ofthe case against the appellant. - t6l Thereafter the court asked the appellant ifhe admitted that he sexually abused a young girl, 6 years old. The appellant replied in the affirmative. He was convicted on his own plea of guilty and sentenced to 20 years' imprisonment inclusive of the period spent on remand.

### A na lysis

## Cround I

17) It is contended under this ground that the trial leamed judge convicted the appellant on his own plea of guilty without following the right procedure and thereby occasioned a miscarriage ofjustice. The respondent, on the other hand, contends that this is ground is wrongly raised, as the appellant had no right ofappeal considering the provisions of section 132 (3) of the Trial on Indictments Act. We shall deal with this objection first.

- t8l Section 132 (3) of the Trial on Indictments Act provides, 'No appeal shall be allowed in the case of a person who has pleaded guilty and has been convicted on that plea except as to the legality ofthe plea or the legality of sentence-' - t9] In our view the substance of the complaint is basically questioning the legality of the plea for failure to comply with the correct procedure for taking such a plea. This ground therefore falls within the exception allowed by section 132 (3) of the Trial on Indictments Act. The ground passes muster. The objection is overruled. We can now turn to whether this ground is worthy of merit. - [0] The attack on the plea taking process in the court below is threefold. Firstly, it is attacked that the proceedings which proceeded in the English language was a language that the appellant did not understand as he had stated that his preferred language was Kumam. Secondly that the facts of the case were not read to the appellant as his counsel told court that the appellant was familiar with the facts of the case and therefore they need not be read out to him. Lastly that the trial court did not comply with Rule 8 (2) of the Judicature (Plea Bargain) Rules,20l6 as the record of trial does not indicate that this rule was complied with. - [11] Counsel for the appellant submitted that the trial court did not follow the procedure set out in Adan v Republic 19731 EA 445 for the recording of a guilty plea and that this occasioned a miscarriage ofjustice. - Uzl Counsel for the respondent submitted that the procedure set out in Adan v Republic (supra) had been complied with by the trial court and that this ground ought to be rejected. - t13] The procedure that ought to have been followed in this matter is provided for under the Judicature (Plea Bargain) Rules, 20 I6, which in our view, fully incorporates the procedure set out in Adan v Republic (supra) and adds further safeguards. This is captured in rule 12 and schedule 2 ofthe said rules.

# l14l We shall set both out here below.

'12. Recording ofplea bargain agreement by the court. ^I) Subject to the procedure prescribed in the Schedule 2, the court shall inform the accused person ofhis or her rights, and shall satisfy itselfthat the accused person understands the following-

(a) the right-

(i) to plead not guilty or having already pleaded, the effect of that plea;

(ii) to be presumed innocent until proved guilty; (iii) to remain silent and no1 to testify during the proceedings; (iv) not to be compelled to give self-incriminating evidence;

(v) to a futl trial; and

(vi) to be represented by an advocate of his or her choice at his or her expense or in a case triable by the High Court, to legal representation at the expense ofthe state.

(b) that by accepting the plea agreement, or he or she is waiving his or her right as provided for under paragraph (a);

(c) the nature ofthe charge he or she is pleading to: (d) any maximum possible penalty, including imprisonment, fines, community service order, probation or conditional discharge;

(e) any applicable forfeiture;

(0 the court's authority to order compensation and restitution or both; and

(g) that by entering into a plea agreement, he or she is waiving the right to appeal except as to the legality or severity of sentence or if the judge sentences the accused outside the agreement.

(2) The charge shall be read and explained 10 the accused in a language that he or she understands and the accused shall be invited to take plea.

(3) The prosecution shall lay before the court the factual basis contained in the plea bargain agreement and the court shall determine whether there exists a basis for the agreement.

(4) The accused person shall freely and voluntarily without threat or use of force, execute the agreement with full understanding of all matters.

$(5)$ A plea bargain confirmation shall be signed by the parties before the presiding judicial officer in the Form set out in the Schedule 3 and shall become part of the court record and shall be binding on the prosecution and the accused.'

#### [15] Schedule 2 to the said rules provides,

'Schedule 2

1. Party called.

2. Representatives introduced.

3. State introduces the Plea Bargain Agreement.

4. Defence confirms the Plea Bargain Agreement.

5. Court informs accused of his or her rights in a criminal trial and the effect of a plea of guilty.

Court finds out from the accused whether he 6. voluntarily signed the agreement after it had been explained to him or her and translated to him or her in a

language he or she understands.

7. If the accused so confirms, he or she is invited to execute a confirmation.

If the agreement is accepted by the court the same is 8. received on court record.

9. The charge is read and explained to the accused in the language he or she understands.

10. If he or she confirms that he or she understands the charge he or she is invited to plead to it.

11. Plea is recorded.

12. If he or she pleads guilty, the state summaries the facts.

13. If accepted to be true by the accused, he or she is found guilty and convicted on his or her own plea of guilty.

14. State is heard in aggravation.

15. Defence is heard in mitigation.

- 16. Convict is heard in allocutus. - 17. Victim or complainant's views on sentence are heard. - 18. Convict is sentenced.' - [16] It will be convenient at this stage to set out the proceedings in the court below which have given rise to this appeal and to consider the same *vis a vis* the applicable rules, as set out hereinabove.

#### '07^TH JUNE 2019 12:31 p.m. **BEFORE HON. LADY JUSTICE MARGARET** MUTONYI, JUDGE HIGH COURT PROCEEDINGS

**State:** My Lord I am Namutebi Rachel for the State. Counsel Halid Salim is representing the Accused person. This matter is for plea taking under plea bargaining. **Court:** Engulu Dennis what language do you understand?

#### Accused: Kumam

**Court:** How did you communicate in Luzira?

**State:** He was speaking English

**Court:** Do you understand this little English that I am speaking?

**Accused:** Yes My Lord

Court: You are Engulu Dennis you are charged with Aggravated Defilement contrary to section 129 $(3)$ and $(4)$ (a) of the Penal Code Act. Aggravated Defilement means playing sex with a child who is below 18 years. Where it is alleged it is said that you Engulu Dennis on the $7^th$ day of April 2018 at Ngogobe zone, Goma Division in Mukono District you performed a sexual act with a child who was 6 years old. I am child friendly so I usually don't want to mention the names of the children. But by the time you come here in Luzira you knew that you were there because you played sex with a child/you performed a sexual act with a girl child who was 6 years old. Have you understood the case against you?

**Accused:** Yes my Lord

**Court:** Is it true or it is not true?

**Accused:** It is true my Lord.

**Court:** A plea of guilty is entered.

**Defence Counsel:** My Lord the Accused person is well aware of the facts so we pray to dispense as we invite State to exhibit the evidence.

**State:** My Lord I join issue with Counsel for the convict and submit as follows: The summary of the facts were well explained to the Accused person during the negotiation. The Accused person on the 7^th day of April 2018 at Ngogobe zone, Goma Division, Mukono District performed a sexual act with a victim aged 6 years. My Lord the victim was examined on Police Form $3$ (a) and the Police Form revealed that she was 6 years with reference to the absence of third morals in her dental formula. The report further revealed that the hymen had been newly partially raptured and non-healed; the labia minora was slightly red and tender. My Lord the Accuse person was examined on Police form 24 (a) and the report revealed that he was 25 years of age with reference to the presence to the old erupted third morals and with Noted Complete Crown growth Noted. My Lord the Accused was also found to be of a normal mental status. My Lord I pray to tender in Police Form 3 (a) for the victim and $\frac{1}{2}$ Police Form 24 (a) for the convict. $\frac{1}{2}$

**Court:** The Police Form 3 (a) is marked PE1 and Police Form 24 (a) is marked PE2. Do you admit that you sexually abused the child of 6 years old?

Accused: Yes my Lord

**Court:** The Accused person is convicted on his own plea of guilty of the offence of Aggravated Defilement.

**Defence Counsel:** My Lord the Accused who is now the convict, Defence and Prosecution have entered into a Plea Bargain Agreement where the convict has agreed to serve a sentence of 20 years imprisonment. We pray that this court be pleased to endorse the same.

**Court:** Engulu Dennis did you understand this Agreement, agreed to waive your rights to be heard you said you are not going to wait for Prosecution to bring witness; I committed this offence, I am pleading guilty and accept to serve my sentence and you agreed on the sentence of 20 years?

Accused: Yes my Lord

**Court:** Is this your signature where you are accepting that you are guilty and you should serve your sentence of 20 years?

**Accused:** Yes my Lord.

**Court:** The court having questioned the Accused concerning his constitutional rights finds that the Accused has intelligently waived and given up his constitutional rights. The court also finds that his plea of guilty is voluntarily and freely made with an understanding of the nature and consequences thereof. The court is accepting his plea of guilty and sentencing him to 20 years imprisonment. Period on remand inclusive for abusing a child of 6 years old. (signed) Margaret Mutonyi **RESIDENT JUDGE**

- MUKONO HIGH COURT CIRCUIT' - [17] We shall first deal with the 3-fold reasons in which the appellant grounds his complaint. The appellant said that the language he understands is Kumam. However, when the court asked if he could understand the little English the judge was speaking the appellant said he did understand it. The state also indicated that in the negotiations with the appellant the language they had used was English. We have also looked at the plea bargain agreement that the appellant signed. It is in English and there was no certificate of translation for the appellant from another language into English. Counsel for the appellant in the court

below did not raise the issue of language and the need for translation for the appellant from Kumam to English.

- [18] We are satisfied that there was no objection from the appellant for the proceedings to be conducted in English. He accepted this to be the case when the question was put to him by the court. In the result we would not find that the proceedings were conducted in a language that the appellant did not understand. - [9] Regarding whether the facts of the case were read out to the appellant by the prosecution the appellant's advocate on record purported to waive the right ofhis client to be read the facts ofthe case against him so that he may respond to the same whether are they are correct or not. This is a legal requirement that cannot be waived. We note though that much as the counsel for the prosecution joined issue with his leamed friend on this matter she still went ahead and read out, very briefly, the facts. The court then asked the appellant ifhe admitted that he sexually abused a girl 6 years old? The appellant agreed that he did. - [20] We are satisfied that the facts, which must be regarded as the bare minimum, were read out to the appellant and he accepted them. We reject the appellant's argument in this regard. - [21] Tuming to whether Rule 8 of the Judicature (Plea Bargain) Rules had been complied with by the trial court. This relates to the participation of the court in plea bargain negotiations. There is no indication on the record that the court participated in the negotiations or was asked any question by the parties in the matter during the negotiations. It is up to the parties to involve the court and where they do not there is no breach of this rule whatsoever. - l22l Howeveq what is ofgreat concern to us, reading both the rule 12, and schedule 2, which the court was obliged to follow, is the twin failure by the trial court to comply with the order of proceedings as ordered by Schedule 2 and with significant aspects of rule 12, which we have set out above.

- 123) Schedule 2 provides 13 steps to conviction ofan accused. Step I is calling ofthe parties and step 2 introduction ofthe parties' representatives. Step 3 is introduction of the plea bargain agreement by the prosecution. Step 4 is the confirmation of that agreement by the defence. Step 5 involves the court informing the accused of his or her rights in a criminal trial and the effect of a plea of guilty. Step 6 requires the court to find out from the accused whether he or she voluntarily signed the plea agreement after it was explained to him or her in a language he or she understood. The accused is then invited to execute a confirmation if he or she accepts or confirms the voluntariness of the agreement. It is then received in court in step 8. It is after this point that the charge is then read out to the accused in a language he or she understands and he or she confirms he or she understands the same. Once he or she confirms that he or she understands the same he or she is invited to plead to it in step 10. Under step 1 I the plea is recorded. If he or she has pleaded guilty, the state reads out the facts. In step l3 ifthe accused accepts the facts, he or she is found guilty by the court, and convicted on his or her own plea. - 124) Rule 12 obliges the trial court, at the commencement of the hearing, to read out to an accused the constitutional rights of the accused in relation to his trial. These fundamental rights are listed in rule l2 (1) (a). The rights are 6 in number. These are; the right to plead not guilty, or having already pleaded guilty, the effect ofthat plea; the right to be presumed innocent until proved guilty; the right to remain silent and not to testify during the proceedings; the right not to be compelled to give selfincriminating evidence; the right to a full trial and the right to be represented by an advocate of his or her choice at his or her expense or in a case triable by the High Court, to legal representation at the expense of the state. - 125) Secondly after reading an accused those rights the court must inform the accused that by accepting the plea bargain agreement, he or she is waiving his or her rights set out in rule l2 ( I ) (a) of the said rules. - 126) The trial court did not follow the order set out in schedule 2. Maybe this would not be consequential if all the steps had been taken and rule l2

complied with. However, the trial court did not read out the accused's constitutional rights to the accused at all. After it had taken the plea the court asked the appellant towards the end ofthe proceedings whether he had understood the agreement, waived his right to be heard and not wait for the prosecution to bring witnesses, pleaded guilty and accepted to serve the sentence of 20 years. The cluster of 6 rights that an accused must waive were not individually set out; including, the right not to plead guilty, the right to presumption of innocence, right to remain silent, right against self-incrimination, and right to be represented by an advocate of his choice.

- 127) The appellant was only asked if he had agreed to waive his right to be heard and that he was not going to wait for the prosecution to bring its witnesses. In effect the trial court did not comply with rule 12 ( I ) (a) and (b) of the rules. This ought to have been done early on in the proceedings, before the charge was read to the accused and the plea taken as provided in schedule 2. Asking the appellant whether he had agreed to the plea bargain agreement and waived his rights without those rights being read out to him violated rule 1 2 ( I ) (a) and (b) of the rules. - [28] The crux of a plea bargain agreement is the waiver of a cluster of ⁶ fundamental rights set out in rule 12 (l ) (a) and it is important a couft must satisfl itselfthat an accused understood these rights and agreed to forego the same. To satisfu itself to this effect it is required of the court to inform the accused ofthem and seek his or her specific response as to whether they have been waived. The trial court, in this case, not to have done so, was a breach of the rules, and occasioned a miscarriage of justice.

## Decis ion

[29] We are satisfied, for different reasons other than those advanced by the appellant, that the trial court failed to follow the right procedure in entering a guilty plea and convicting the appellant. We find merit in ground I and quash the conviction of the appellant. We set aside the sentence imposed upon the appellant. We order a retrial of the appellant before another judge. In light of the foregoing orders, it is unnecessary to consider grounds 2 and 3.

[30] We order the Registrar of the High Court to fast track the re-hearing of this matter at the next convenient session of the High Court of Uganda no later than 6 months from the date hereof.

Dated, signed and delivered at Kampala this ZJrday of A^1\ ²⁰²⁴

ck oll -Ntende Justice of Appeal

Ban Cheborion

fAppeal

D eny Justice of Appeal