[2023] UGHCCRD 97

## 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA CRIMINAL SESSION CASE NO.296 OF 2021 UGANDA-----------------------------------------------PROSECUTION VERSUS**

## 10 **KIMULI KURAISH & 6 OTHERS-------------------------ACCUSSED BEFORE HON: JUSTICE ISAAC MUWATA RULING**

Before the matter came for ruling on a whether the accused persons have a case to answer, Counsel for the prosecution State Attorney Ainebyona

15 Happiness made an oral application to reopen the prosecution case before court made its ruling on whether the accused persons have a case to answer.

She made the application pursuant to Article 126(2) (e) of the Constitution and under section 17(2)(c) of the Judicature Act. The grounds of the

- 20 application were that at the time she took over from her colleague who was prosecuting the matter, she was not given the details of other witnesses for the prosecution. That it was after exercising due diligence and perusing the police file and the record that she discovered that there were witnesses who did not testify and that there were some documents - 25 that were tendered in court for identification but were required to be tendered in as exhibits.

She further submitted that this court has the power to allow calling for more evidence if it considers that the evidence may assist court in reaching a just decision

- 30 In reply, Counsel Sselwambala Julius for the accused vehemently opposed the application and submitted that the prosecution has not indicated what documents already identified required to be tendered in as exhibits. Counsel argued that the prosecution has already led 8 witness they have not told court whether these 8 witness have not been of value. He further - 35 submitted it is a principle of law that there should be an end to litigation since the accused persons have been on remand for over 3 years

In rejoinder, counsel for prosecution submitted that one of the documents that was tendered for identification is the DNA report which is crucial to the determination of this case

## 40 **The question for determination here is whether the prosecution can be allowed to reopen the its case.**

The general rule under section 73(1) of the Trial on Indictment Act is that once the prosecution has closed or concluded the evidence of its witnesses it cannot reopen its case. However, this is not without 45 exception.

Section 39(1) of the Trial on Indictment Act provides that;

**"The High Court may, at any stage of any trial under this Act, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and**

50 **reexamine any person already examined, and the court shall summon and examine or recall and reexamine any such person if his or her evidence appears to it essential to the just decision of the case."**

The decision to grant leave to the prosecution to reopen its case and call 55 other witnesses is therefore discretionary, this discretion must be exercised judiciously and in the interests of justice. There are a number of instances where court may exercise its discretion to admit further evidence after the close of the prosecution case.

One of the instances is to enable a party to adduce evidence of a purely 60 formal and non-contentious nature for example, where the prosecution has omitted to tender a material document in evidence. In such circumstances, no prejudice is caused to the accused by allowing the Prosecution to re-open its case, and the court will therefore admit such evidence.

65 Secondly leave may also be granted to the prosecution to re-open its case in order to adduce new evidence not previously available to it. Such fresh evidence is properly defined not merely as evidence that was not in fact in the possession of the prosecution at the time of the conclusion of its case, but as evidence which by the exercise of all reasonable diligence 70 could not have been obtained by the prosecution at that time. The burden of establishing that the evidence sought to be adduced is of this character

rests squarely on the prosecution.

When the court is deciding how to exercise its discretion in this situation, the stage of the trial must be a relevant consideration. As a general rule, 75 it may be considered that where the prosecution seeks to adduce further evidence, the later in the trial that the application is made, the less likely the court is to accede to the request. The court must also take into account the nature of the evidence sought to be presented. While all evidence must fulfil the requirements of admissibility, for the court to

- 80 grant the Prosecution leave to re-open its case, the probative value of the proposed evidence must be such that it outweighs any prejudice caused to the accused. Great caution must be exercised by the court lest injustice be done to the accused, and it is therefore only in exceptional circumstances where the justice of the case so demands that the court 85 will exercise its discretion to allow the prosecution to adduce new - evidence it has closed their case.

In the instant case, counsel for the prosecution stated that when she took over prosecuting this matter from her colleague, her colleague had inadvertently omitted to tender in some documents on record as exhibits.

- 90 One of the documents referred to by the counsel for the prosecution is the DNA report. This report by its own nature is of probative value and goes far in assisting this court to arrive at a just decision. Calling its author to tender it as an exhibit is procedurally necessary to have it considered as evidence. - 95 I have also considered the stage of the trial at which the application has been brought, the court has not yet made any determination as to whether the accused persons have a case to answer so there is no prejudice caused to the accused persons. The proposed evidence therefore outweighs any prejudice and the justice of the case demands 100 that the court exercises this discretion to allow the prosecution reopen its case. The application is accordingly allowed. The prosecution case is reopened as prayed.

I so order.

## **JUDGE**

105 **3/07/2023**

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