[2023] UGCA 198

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# ⁵ THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

(Coram: R. Buteera, DCJ, C. Gashirabake JA, O. Kihika, JA.)

CRIMINAL APPEAL NO. O24I OF 2019

(Arising.from Criminal Session No. HCT-11-CR-CS 0 I 99/20 I 8)

#### BETWEEN

## MWESIGWA ROBERT APPELLANT

AND

UGANDA RESPONDENT

(Appeal.from the Judgment of the High Court of Ugando Holden at Kampala, by Susan Okalany, J. delivered on l3th December, 2018) 15

## JUDGMENT OF COURT

## lntroduction

- 1.1 The appellant was indicted for Aggravated Defilement c/s 129(3)(4)(a) and (c) ofthe Penal Code Act Cap 120. - 2.] The facts from the lower court were that the appetlant on the l3th June, 2015 at Gamba Village in Mukono district, performed a sexual act with N. E, a girl of 5 years of age. The appellant initially pleaded not guilty to the indictment when he was first arraigned before the High Court on 4th December, 2018. He however changed his plea after the evidence of the medical examination report of Dr. Daniel Ssegirinya was admitted as PEl. He was convicted on his own Plea of guilty and sentenced to 9 years and 4 months' imprisonment. - 3.1 The appellant being aggrieved with the decision of the High Court lodged an appeal in this court. The appeal is premised on one ground set out in the Amended Memorandum of Appeal as follows;

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llPaBe

The learned Judge erred in law when she exercised powers injudiciously in entering plea of guilty wilhoul udequate scrutiny of alleged offence, inEyedients of alleged crime. date inconsistencies in charge sheet I I /6/201 5, indictment I 3 /06/20 I 5 alongsitle illegal plea bargain agreemenl before convicling appe I lant occ as i oni n g m i sc arri age of j ust i ce.

#### Rerrresentation

4.] At the hearing of the appeal, the appellant was represented by Mr. Seth Rukundo on state brief. The respondent was represented by Mr. Sam Oola, Senior Assistant DPP and Ms. Sarah Amony, Chief State Attorney.

1s Ground one

The learned Judge erred in law when she exercised powers injudiciously in entering plea of guilty without adequate scrutiny of alleged offence ingredients, alleged crime date inconsistencies in charge sheet I I1612015, indictment 13 10612015 alongside illegal plea bargain agreement before convicting appellant occasioning miscarriage of justice

## Submissions for the appellant

- 5.] Counsel for the appellant submitted that the prosecution did not satisfy the burden ofproofrequired by law. - 6.] It was submitted for the appellant that there were inconsistences in the dates on the charge sheet and the indictment. The charge sheet had 1110612015, whereas the indictment had I 3 / 06 I 2015.ln counsel's view this was an indication that the ingredients of the offence were not proved beyond reasonable doubt. Counsel cited Okale vs. Republic 1965 E. A.55.

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- ⁵ 7.] Counsel submitted that Section I I of the Judicature Act Cap 13 gives power to the Court of Appeal to act in original jurisdiction when determining appeals. Rule 2(2) Court of Appeal Rules empowers Court of Appeal to set aside judgments which have been proved null and void after they have been passed and shall be exercised to prevent abuse ofthe process of any court caused by delay. 10 - 8.] On Plea bargain, counsel argued that the agreement was illegal and could not be enforced since the appellant signed it while in prison. In counsel's opinion, the appellant did not have the f'reedom to contract which was contrary to sections 2 and 10(1) of the Contracts Act, No. 7 of 2010. Counsel further argued that the procedure of recording the plea bargain was irregular and this occasioned a miscarriage ofjustice. - 9.1 Additionally, counsel for the appellant submitted that the indictment was not read and explained to the appellant in the language he understood.

## Submissions for the respondent

- 10.] On the burden and standard of proof on the offence of aggravated defilement, counsel for the respondent submitted that the appellant's advocate intimated to court that the appellant wished to change his plea, the indictment was read afresh and he pleaded guilty. The brief facts were then read to him by the prosecutor. When the court asked the appellant whether the facts true were, he confirmed them and stated they were ^correct. 20 25 - ^I1.] Counsel submitted that since the facts constituting all the essential ingredients of aggravated defilement were admitted to be correct by the appellant, the trial Judge rightly convicted the appellant on his own plea of guilty in accordance with the law.

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- ⁵ l2.l As regards the inconsistences in the date when the offence was committed that is I 1/06/201 5 and 1310612015, counsel submitted that this ground is without merit. It is merely an irregularity which does not go to the root of the trial. The appellant affrrmed that the facts were correct. Counsel invoked section 139 of the Trial on Indictment Act, which forbids this court from interfering with the decision of the High court on grounds of irregularity, error or omission. Counsel submitted that the important question to establish is whether there was injustice when court refused to resolve the inconsistencies. 10 - 13.] On the proper procedure of plea taking, it was submitted for the respondent that, the appellant raised two issues here in under, one on the procedure of taking plea, and vitiation ofthe plea bargain agreement. - 14.1 On plea taking recording procedure, counsel for the respondent concurred with counsel for the appellant on the correct procedure for recording a plea of guilty as was laid down in Adan vs. R, 1973 E. A 445. However, counsel's departure was that the trial Judge was alive to and correctly followed the principles and procedure of recording a plea of guilty. Counsel submitted that it was an afterthought for the appellant to tum around and argue that the plea was not correctly recorded in accordance with the test in Adan(Sapra). - 15.] On the plea bargain agreement, counsel for the respondent submitted that it is not true that the appellant did not understand the ingredients of the offence. That the record shows that the appellant was represented by an advocate. It is indicated that both the indictment and plea bargain form were read to the appellant in Luganda by a clerk called Bijule Rogers. This was in compliance with Rule 10 of the Judicature (Plea Bargain) Rules, 2016. That the appellant confirmed before the trial 25 30

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⁵ Judge, his advocate and the State Attomey that he voluntarily signed the Plea Bargain Agreement. In compliance with rule 12.

16.] Counsel submitted that it is clear that the appellant understood the nature of the Plea bargain agreement, the consequences of the Plea bargain agreement on all his constitutional rights to a fair trial. This was done voluntarily.

#### Reioinder

- l7.l Counsel for the appellant submitted that there was no evidence to show that the appellant admitted each essential ingredient of the charge. - 18.] Counsel reiterated the earlier submissions that the inconsistencies in the charge and indictment made the trial illegal. Counsel cited Mistry Amar vs. Kulubya (1963) 3 ALLER 489, where court held that justice cannot be used to enforce illegality even if the parties entered into an illegality willingly.

### Consideration of Court

- 19.] When this matter came up for hearing, there were two Memoranda of Appeal. The respondent had objected to the Amended Memorandum of Appeal because it was not filed with leave of court and the ground was argumentative. However, during the hearing, counsel for the respondent dropped the preliminary objections in the interest ofjustice. 20 - 20.1 During the hearing, counsel for the appellant clearly stated that the appellant was not appealing against the sentence but only the conviction as stated in the Amended Memorandum of Appeal. 25 - 2l .l This court therefore shall consider this appeal on the basis of the Amended Memorandum of Appeal and the submissions there under.

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- ⁵ 22.) This being a first appellate court, it has a duty to re-evaluate the evidence, weighing conflicting evidence, and reach its own conclusion on the evidence, bearing in mind that it did not see and hear the witnesses. In Kifamunte v Uganda, Supreme Court Criminal Appeal No. 10 of 1997, Court stated that: We agree that on.first appeal, from a conviclion by a Judge the appellant is entilled to have the appellale Court 's own consideration and views of the evidence as a whole and its own decision lhereon. The frst appellate courl has a duty to review lhe evidence of the case and to reconsider lhe materials before the trialjudge. The appellate (:ourl musl 10 15 - 23.1 See also the cases of Pandyo v. R [19571 EA 336, Bogere Moses v. Uganda, SCCA No. I of 1997 and Rule 30(l) of the Court of Appeol Rules that are of the same effect.

then makt up ils own mind not disregarding the judgmenl

appealed from but carefully weighing and considering it.

- 24.) The appellate court may, depending on its findings, quash, or uphold the decision of the lower court, come up with its own decision, address legal issues of unfaimess or irregularity that are not contained in the memorandum but are glaring on the record which resulted into a miscarriage ofjustice and or order for a retrial in the interest ofjustice, bearing in mind that litigation whether civil or criminal must come to an end. - 25.1 It is also trite that even where court has erred, the Appellate court interferes with the decision of the lower court only where there has been a miscarriage of justice to any of the parties in the proceedings. The appellate Court is guided by the presumption of innocence under article 6lPage w

- 28(l) (a) of the 1995 Uganda Constitution and the burden of proof as articulated in the case of Woolmington Versus The DDP, 1936 AC 462. - 26.1 The procedure for taking a plea is clearly set out in the case of Adan Vs R, [973[ EA. 445 where the East African Court of Appeal (as it then was) stated as follows;

" llhen a person is charged with an ofibnce, the charge and the particulars thereof should be read oul to him, so far as possible in his own language, but if that is not possible in the longuage which he can speak and understand. Thereafter lhe Court should explain to him the essential ingredients of the charge and he should be asked if he admits them. lf he does admit his answer should be recorded as nearly as possible in his own words and then pleo of guiky .formally enlered. The proseculor should then be ctsked to slate the facts of the case and the accused be given an opportunity to dispute or explain the.facls or to add any relevanl .facts he may wish the courl lo know. If the accused does nol agree wilh lhe facts os slated by the prosecutor or intoduces new facls which, if true might raise a question as to his guilt, a change of pleo to one ofnot guilly should be recorded and the lrial should proceed. If the accused does not dispute the allegedfacls in any material respect, a conviction should be recorded and further facts reloling b the question of senlence should be given before sentence is passed. "

- 27.1 The earlier case of Tomasi Mufumu v. R, lt959l EA 625 decided by the same court had stated that; - 30

" ...it is very desirable that a trial judge, on heing olJbred a plea which he construes as a plea o.f guilty in a murder case, should not only satisfy himself thot the plea is an unequivocal plea, but shoulcl satisfu himself

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⁵ also and record that lhe accused understands the elements v'hich constitule lhe o.ffence of murder...and underslands that the penalty is dealh. "

28.1 Where the plea taken does not amount to an unequivocal plea of guilty to the offence to which the accused is convicted, the conviction must be quashed (see R v. Tambukiza s/o Unyonga, [958] EA 212). We have bome the above principles in mind in the resolution of this appeal.

29.1 A study of the record shows that when the matter came up on the l3th December 20,l8 before the trial court for hearing, the indictment was read and explained to the appellant in Luganda. The appellant denied the charge and a plea ofnot guilty was entered by court.

30.] On the same day after the evidence of Dr. Ssegirinya Daniel had been admitted as PWl, Mr. Ayorekere Arthur informed court that the appellant wanted to change his plea. This was the procedure of what happened in court that day;

"Mr. Aytrekere:

I have consulted with the clerk and state counsel. The accused would like to change his plea.

Court: indiclmenl read and explained to the accused in Luganda

Accused: I have understood the indictment. lt is true.

Court: plea of guilty entered

Ms. Gladys Nyanzi: The facls of this cose are lhol N E was aged 5 years al lhe time on 13/6/2015, the victim and Joyce Nabatanzi her sibling went to the accused's home to play. The accused summoned the victim to the house. He led her lo his bedroom, undressed her, undressed too and had sexual inlercourse with the victim. The victim

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returned home and reported the matter to Nafuma Jackie who informed their molher Nandaula Rose. The victim was examined by Nandoula Rose who saw injuries on the victim's genitals as well as a discharge. - The matter was ref)rted lo Police (Seeta Nazigo) the accused wcts arrested ond charged.

Accused: The facls are correcl

10 Court: The accused is convicted on his own plea of guilty"

31.] It is evident from the record that the clerk, Ms. Gladys Nyanzi, read the facts and explained to the appellant the indictment in the language he understood, that was Luganda. This gave him an opportunity to either dispute, explain or add any relevant facts. The appellant simply said the facts were correct. In our view, the plea was unequivocal. In Adan vs R(Supra) court explained the essence of facts in a plea of guilty, that is;

"The statement offacls serves lwo purposes: it enables lhe magislrale to scttisfy himself thot the pleo of guilty was really unequivocal and thal the occused has no defence and it gives the mogistrale the basic material on which to assess senlence. It nol infrequently hoppens lhat an accused, after hearing the stalement of facts, di,spules some particular fact or alleges some additional.fact, showing that he did not really understand the position u,hen he pleaded guilly; it is for this reason thot il is essenlial for the stotement o/ facts to precede lhe conviclion. "

32.) With regard to the issue of the plea bargain agreement, counsel's arguments have no merit. The law does not speciff where the plea bargain agreement should be signed from. So the argument that it was signed in prison does not hold water. It is an afterthought and an abuse of court process. Furthermore, counsel for the appellant is mixing up the plea of not guilty and that of plea bargain. This matter had both the plea of guilty

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- ⁵ and plea bargain. It is clear from the record that the appellant first entered the plea ofnot guilty and he then entered a plea bargain agreement ofthe sentence as it is under Rule 5 of the Judicature Plea Bargain) Rules 2016. Which provides that a party can initiate a plea bargain at any time before sentence. - ¹⁰ 33.] Regarding the discrepancy in the dates on the charge sheet and the indictment. The law on inconsistencies and contradiction was laid down by the Supreme Court in Obwalatum Francis vs. Uganda, Supreme Court Criminal Appeal No. 30 of 2015, where the Supreme Court held that; - "the law on consistency is to the effect that where there are inconsistencies and discrepancies/ contradictions between the witnesses which are minor and of a trivial nature. these may be ignored unless they point to the deliberate untruthfulness. However. where contradictions and discrepancies are grave, this would ordinarily lead to the rejection ofsuch testimony unless satisfactorily explained" 15 20 - 34.1 In our view, the inconsistences in the charge sheet on the date of commission of the offence reading 1110612018 and 13106/2018 are minor. The appellant accepted the facts as read to him by the trial Judge to be true. These inconsistencies in dates do not go to the root of this case.

Consequently, this appeal lacks merit. It fails. The sentence ofthe trial Court is upheld .

## We so Order

Dated at Kampala this day of ... 2023 }!- '4"5

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RICHARD BUTEERA DEPUT CHIEF JUSTICE

## CHRISTOPHER GASHIRABAKE

## JUSTICE OF APPEAL

(/ 15 OSC

## JUSTICE OF APPEAL

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