[2024] UGCA 233

## ⁵ THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CRIMINAL APPEAL NO. 182 OF 2O2O

GAHIZI LAWRENCE . APPELLAI{T

#### VERSUS

10 UGANDA. RESPONDENT

(Appeal from the decision of Hon. Mr. Justice Oguku Ojok Anthong in the High Court at Nakasongola in Ciminal Session Case No. 821 of 2O19)

CORAM:

HON: MR. JUSTICE CHEBORIOI{ BARISHAIS, JA

15 HON: LADY. JUSTICE HELLEIY OBURA, JA HOITI: LADY. JUSTICE EVA x. LUSWATA, JA

JUDGMENT OF THE COURT

# 20 INTRODUCTION

This Appeal is from the decision of the High Court sitting at Nakasongola in Criminal Case No. 0821 of 2019, in which Justice Anthony Oyrku Ojok sentenced the Appellant to 18 years and 10 months' imprisonment, following plea bargain agreement, for murder under Sections 188 & 189 ofthe Penal Code 25 Act.

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# 5 Brlef facts.

According to the record, on the lst of May 2079 at around l:00 a.m, while the Appellant and his wife were sleeping, they heard their dogs barking continuously. This prompted the Appellant to get out of the house armed with a spear and grazing stick to check why the dogs were barking. The Appellant with the help of his dogs started chasing the deceased while shouting'thief' thief' and they ran for almost a kilometre. The deceased got trapped by thick bushes, and when he fell down, the appellant stabbed him in the back with the spear. When the deceased tried to turn, the appellant hit him on the forehead, and he died instantly.

The appellant was arrested, charged, and on his own plea of guilty, he was sentenced to 18 years and 10 months' imprisonment for the offence of murder. 15

Being dissatisfied with the decision of the learned trial Judge, he appealed to this Court on the following two grounds:

- 1. Tlnt the leorned tial Judge ened in laut and fact when he convicted the - Appellant uithout due regard to the proper procedure under the pleo bargain agreement. - 2. Tlnt the learned trial Judge ened in laut and fact u.then he passed a tnrsh and excessiue sentence against the Appellant tlrus occasioning a miscarriage of justice on the Appellant.

⁵ At the hearing of the Appeal, Mr. Sam Ahamya appeared for the appellant while the respondent was represented by Mr. Simon Ssemalemba Assistant DPP.

Counsel for the appellant submitted that there was a contradiction between paragraphs 3 and 4 ofthe plea bargain agreement. That while paragraph 3 which dea-ls with the summary of the case and the agreed facts between the prosecution and the defense states that the accused murdered the deceased mistakenly, paragraph 4 states that the killing was intentional.

He submitted that the trial Court disregarded the prosecution and defense agreed facts that the accused murdered the deceased mistakenly and proceeded to convict and sentence the Appellant on a murder charge instead of manslaughter.

Counsel invited this Court to find that the charges against the Appellant would have been manslaughter and reduce the sentences given to the Appellant.

Counsel submitted that the trial Court did not consider any of the mitigating factors but instead considered only the aggravating factors, since the trial Judge did not weigh the mitigating factors against the aggravating factors which was an error on his part.

In counsel's view, the charge against the Appellant would have been reduced to a minor offence of manslaughter which would have attracted a lesser sentence compared to the one that was given by the Trial Judge. He referred to Rule 6

Judlcature (Plca Bargalnf Rulea 2O16 which is to the effect that a plea bargain 3lPage ,q

⁵ may be in respect of a plea of guilty to a minor and cognate offence; or lesser offence.

That the sentence of 18 years and 10 months given to the Appellant was manifestly harsh since the Appellant had no malice aforethought to commit the offence as indicated in paragraph 3 ofplea bargain agreement where it was stated that the accused murdered the deceased by mistake. He relied on Rlchard Obong Vs Ugdndd Crlm;lnal Appeal No. 4 oJ 7982 where the Supreme Court cited with approval the decision in R g s Shcushl S/o Mlga Crimlnal Appeal No. 779 oJ 7957 EACA 798 and stated that;

'the essence of tlrc cime of murder is malice aforethought, and if the circumstances shout that the fatal blout utas giuen in the heat of passion on the sudden attack or threat to attack uthich is near enough and serious enough to cause loss of control then the inference of malice aforethought is rebutted and the offence will be manslaughter. " 1)

In response, Counsel for the Respondent conceded that although there was a plea bargain agreement, the learned trial Judge did not follow the correct procedure of taking plea of guilty. That the proper procedure to be followed was laid down in the case of Adan Vs Relrubllc (EACA Crlmlna'l Appeal No, 58 o! 1973) where it was held that; 20

"When a person is ctnrged, the charge and the particulars should be read out to him, so far as possible in his own language, but if ttnt is not possible, then in ^a 25

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- ⁵ language uthich he can speak and understand. The Magistrate should then explain to the Accused person all the essential ingredients of tte offence charged. If the Accused admits all those essential elements, the Magistrate should record tuhat the Accused has said, as nearly as possible in his ou.tn utords, and then formallg enter a plea of guiltg. The Magistrate should ask next the proseattor to - state the facts of the alleged offence and uhen the statement is complete, should @ue the Accused an opportunity to dispute or explain the facts or to add releuant facts.... If the Accused does not deng the alleged facts in any mateiol respect the Magistrate should record a conuiction and proceed to hear ang further facts releuant to sentence, the statement offacts and the Accused's replg must of course be recorded". 10

Counsel then submitted that the above procedure was not followed when the Appellant took plea. That the indictment was read to the Appellant and he replied that'I committed the offence.". Court then ordered the accused person together with the state attorney to complete a plea bargain form and report to court.

He submitted that the prosecution should have stated the detailed facts of the case to which the Appellant would have replied and this was not done. 20

He submitted that the trial Judge erroneously upheld the sentence of 18 years which was agreed upon by both parties in the plea bargain without first convicting the Appellant.

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# 5 CourttsConslderatlon

We have considered the submissions of both counsel and studied the record of appeal. As a first Appellate Court, we are required to re-appraise the evidence adduced and make our own inferences. See Rule 3O(1) oJ the Rules of thls Court and. Klf,amunte Henry V Ugand4 Suprernc CourA Crlmlnal Appeal No.7O of 7997.

Once parties conclude the plea bargaining process, then the proceedings have to be reduced into a plea bargain agreement which is defined under rule 4 of the Judicature (Plea Bargain) Rules, 20 16 to mean an agreement entered into between the prosecution and an accused person regarding a charge or sentence again st an accused person. The plea bargaining process is intended to benefit the accused, the victim and the state.

In the instant Appeal, the Appellant was on his own plea of guilty convicted of murder and sentenced to 18 years' imprisonment following a piea bargain agreement.

- Rule 8 of the Judicature (Plea Bargain) Rules, 20 16 provides for Court's participation in plea bargain discussions. Rule 8(2) provides that the parties shall inform Court of the ongoing plea bargain negotiations and shall consult the Court on its recommendations with regard to possible sentence before the agreement is brought to Court for approval and recording. 20 - The proceedings of the lower Court in the instant appeal indicate as follows; SlPage 25 - ⁵ 'Defence: The acansed lxants to sag something Accased: I uant to clnnge mg plea Court: Let the clerk read the indictment again Clerk: Ttte indictment is read to the accused? Wwt do you sag? - Accused: I committed the offence 10

Court: Let tte accttsed person together uith the State and defence Lanager bargain and report to Court

State: ute haue concluded a plea bargain fonn and agreed to 18 gears and 1O months hauing subtracted the peiod spent on remand.

Defence: That is tlrc position 15

> Court: The sentence of 18 gears and 1O months is herebg uplrcld hauing token into account both aggrauating and mitigating factors. Let the fonn be signed by all the parties and tendered in Court. TLe form tendered in Court and signed by all parties."

The above excerpt shows that the trial Judge did not convict the Appellant but proceeded to sentence him to 18 years and 10 months' imprisonment. ^A conviction is the determination by a court of law that an accused person is guilty of a crime. 20

The learned trial judge did not follow the proper procedure for recording the plea

of guilty. The facts of the case were not read to the Appellant, the trial Court did not satisfy itself that the plea of guilty was unequivocal and that the Appellant understood the facts to which he was pleading guilty and had no defence. ,q

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⁵ We find that the learned trial judge did not follow the procedure as laid down in Adan Vs Republtc (atpra) as earlier reproduced in this judgement.

Rule 12(2) of the Plea Bargain Rules incorporate plea taking in the recording of a plea bargain. The Rule requires that the charge is read and explained to the accused in a language that he/ she understands and the accused has to be invited to take plea. In Muslnguzl Apollo V. Uganda (2019) UGCA I57, it was held that where there is a plea bargain, the accused still has to plead guilty and the proceedings for plea taking have to be recorded.

For the above reasons, we find the said Plea Bargain Agreement defective. We accordingly set aside Appellant's sentence and order a retrial.

In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufliciency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its own facts and circumstalces and an order for retrial should only be made where the interests of justice require it. See latchalt Ma4Jt a The Republlc [1966] I EA 343. A trial was rendered defective due to a mistake or omission committed by the trial court, but in most cases that in itself is not a ground for ordering a retrial. Of course, each case should be considered on its own facts ald circumstances 15 20

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## ⁵ In Reu. Father Santos Wapokra V Ugandq Court of Appeal Crlnlnal Appeal No.2O4 of 2072, this Court stated as follows;

"The ouerriding purpose ofa retial is to ensure that the cause of justice is done in a case before Court. A serious error committed as to the conduct of a tial or the discouery of neut euidence, uthich uas not obtainable at the trial, are the major considerations for ordering a retrial. The Court tttat has tried a case should be able to correct the elTors as to the monner of the conduct of the tial, or to receiue other euidence that utas then not auailable. Houteuer, that must ensure that the accased person is not subjected to double jeopardy, by utag of expense, delag and inconuenience bg reason of the retriol. Other considerations are; where the original tial uas illegal or defectiue, the rule of lau that a man shall not be tuice uexed for one and the same cause ((Nemo bis uexai debet pro eadem causa), uhere an accused was conuicted of an oJfence other than the one uith which he utas either charged or ought to haue been chorged, strength of the prosecution case, the seriousness or othentise of the offence, u.thether the oiginal trial tuas complex and prolonged, the expense of the neto tial to the accused, the fact that ang criminal trial is an ordeal for the accused, utho should not sulfer a second tial, unless the interests ofjustice so reEtire and the length of time betueen the commission of the offence and the neu trial, and uhether the euidence utill be auailable at the neut tiaL"

One of reasons for ordering a retrial is when the original trial was unlawful or flawed. See: Ahned All Dho;ramsl Sumar V R [1964] EA 487. Th,.e Court must however first investigate whether the irregularity is reason 9lPage

5 enough to warrant €rn order of a retrial. See: Rat{tal Shohur [7958] EA 3.

As to whether the Appellant shall be subjected to a double jeopardy if a re-trial is ordered, before ordering a retrial, the Court handling the case must address itself to the rule of the law that: "a man shall not be tutice uexed for one and the same cause: Nemo bis uexari debet pro eadem causo".

- 10 We acknowledge that any criminal trial is a difficult experience for an accused person, involving the use of resources, the stress of facing criminal charges, and the burden of attending court. However, when someone is accused of committing a serious crime against society, it is essential for the interests ofjustice that they face a crimina.l trial to determine their innocence or guilt. This holds true even - 15 in cases where a retrial is necessary, depending on the specific details of the CASC.

In R. I/. Dossanl (1945) E. A. C. A I5O, it was held that an order for retrial is the proper order to be made when the accused had no satisfactory trial.

20 Since the taking of plea was flawed, we allow the Appeal, quash the Appellant's conviction and sentence. We frnd that the interest of justice will best be served by ordering a retrial under the following terms:

We order that the matter is remitted back to the High Court for a retria-I. The

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⁵ Registrar of this Court is directed to bring this matter to the immediate attention of the Resident Judge at Nakasongola so that a retrial is conducted in the next convenient criminal session.

We eo order 'i \+ 4c' day of p^^\$ 2024 Dated at Kampala this

Cheborion Barishaki JUSTICE OF APPEAL

Obura JUSTIC o APPEAL Eva Luswata JUSTICE OF L

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