CHARGES AND INDICTMENTS

YEAR 3 - LLB NOTES: CHARGES AND INDICTMENTS 

 

CHARGES AND INDICTMENTS 

 What is a charge? A charge is a formal written accusation of an offence drawn up either by a police officer or a magistrate and signed by a magistrate to be used in a magistrate’s court as a basis for trial or preliminary proceedings. Where the charge is filed in the high court, it is called an indictment. A charge sheet is for the magistrate’s court as an indictment is for the high court. What is an indictment? An indictment is a formal written accusation of an offence drawn up and signed by the DPP and filed in the registry of the high court to be used as a basis for trial in that court.

 The purpose of the charge is to state concisely the offence the accused is alleged to have committed and also to bring to the accused ’s knowledge the nature of the offence brought against him or her in order for him to prepare his defence. The difference between a charge and an indictment is one of form and not of substance. Both charges and indictments must contain a statement of the offence committed and the particulars of that offence. S.85 of MCA and s.22 T.I.A. The legal provisions for framing charges and indictments are identical under S.88 MCA and S. 25 TIA accordingly. Case law states that a trial without a charge is a nullity because the accused person would not know the case he is facing. Sir Udo Udoma stated in the case of Judagi & Ors v West Nile district Administration that the failure to frame a charge was a fundamental mistake and therefore the trial was declared a nullity. 

 CONTENTS OF A CHARGE AND AN INDICTMENT.

 A Charge just like an indictment consists of four parts; a) the commencement, b) the statement of offence, c) the particulars of offence and d) the conclusion. Section 85 of MCA and S. 22 of the T.I.A provide that every charge /indictment must contain a statement of the specific offence or offences with which the accused person is charged together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. The rules governing the form of a charge and or indictment are set out in section 88 of the MCA and s. 25 of the T.I.A respectively. a)

 COMMENCEMENT

 This states the place of the courts jurisdiction, indicate that the charge is preferred by the Uganda police, state the name of the police station, date when the charge is preferred, the police charge register no; CPS police charge no 01/06 The rules governing the form of a charge are set out under section 88 of the MCA and these rules are mandatory. a) A count of a charge shall commence with a statement of the offence, called the statement of the offence. S. 88 a) MCA (for an indictment, see s. 25 a) 

 b) The statement of the offence shall describe the offence shortly in ordinary language, avoiding the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence is one created by enactment shall contain a reference to the section of the enactment creating the offence. I.e murder, contrary to section 188 & 189 of the penal code act cap 120 (S.88 b) MCA and s.25 b) T.I.A) 

 c) After the statement of offence, particulars of the offence shall be set out in ordinary language in which the use of technical terms shall not be necessary. (the particulars inform the accused as to the circumstances- e.g time, place, conduct, subject matter of the crime which has thus been alleged against him) only those particulars as are necessary to give the accused reasonable information as to the nature of the charge) S.88 C) and s.25 c) 

 d) Where a charge contains more than one count, the counts shall be numbered consecutively i.e 1-20 there must be a reference of the law creating each offence. S.88 e) MCA and s.25 e) TIA.

 e) Where an enactment constituting an offence states the offence to be the doing or the omission to do any one of any different acts in the alternative… may be stated in the alternative in the count charging the offence S. 88 f) and s. 25 f) 

 f) when a person is charged with any offence under sections 268-271 of the penal code i.e embezzlement, causing financial loss, it shall be necessary to specify the gross amount of property in respect of which the offence is alleged to have been committed and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates. S.88 i) and s.25 i) 

g) the full name and address of the accused must be contained on the charge sheet. It is desirable that his tribe or race, occupation, place of abode should also be inserted. The magistrate should always ensure that the name on the charge sheet is the name of the person standing before the court waiting to be charged. Yonasani Egalu v R (s.88 m) and s.25 m)

h) it is sufficient to describe any place, time, thing, matter, act in a charge in ordinary language. The time of the offence need not be stated unless the time is relevant for the commission of the offence e.g in a charge of burglary; the time must be stated because it can only be committed in the night. (Uganda vs William Ibwokital) s.88 o) and s.25 

i) general rules i) the age of the accused is normally irrelevant and may not be stated unless known. It is however necessary to indicate the age in the particulars of offence where need arises e.g in a charge of defilement, the age of the victim is very important. S.129 

 j) the marital status is not normally necessary but should be indicated in the particulars of the offence where need arises e.g on a charge of adultery by a man contrary to s.154 PCA, the woman with whom a man has sexual intercourse must be a married woman, therefore this fact must be stated. 

 k) A Charge should be signed by the police officer preferring the charge before filing it in court as a means of authenticating it. After it has been filed, the magistrate should sign it before calling upon the accused to plead to it. In Uganda vs Byaruhanga, it was held that the charge sheet should be signed by the police officer who brings it and the magistrate should not accept to proceed with the charge until it is signed. An indictment on the other hand must be signed by the director of public prosecutions under s. 26 and it must commence in the form stipulated under section 27 of the T.I.A. 

 JOINDER OF CHARGES/INDICTMENTS

There are two aspects of joinder of charges;- charging more than one offence in one charge or indictment (joinder of offences) and secondly joining more than one accused in the same charge( joinder of persons).

 JOINDER OF OFFENCES 

 The rule for joinder of offences is that where an accused person is alleged to have committed more than one offence, he may be charged in the same proceedings with all the offences provided that the offences are founded on the same facts or form part of a series of offences of the same or similar character. S.86 (1) MCA and s.23 (1) TIA. Thus in order to join more offences than one in the same charge or indictment, it must be established that the offences were founded on the same facts, e.g if the accused successfully commits robbery on a passer-by and run away with the money, in the course of the escape, he is chased by a police man, whom the accused attacks in order to evade justice. Here there are two offences committed, robbery and assault on a policeman. Can these two offences be said to have been founded on the same facts? 

 

Secondly, more offences than one can be joined in one charge or indictment if they form part of a series of offences of the same or similar character. For example if in the course of an armed robbery on a bank, the security guard at the bank is killed, then obviously the robbery and the killing can be said to have been founded on the same facts and can be joined in one charge. On the other hand, if one evening a man steals from a shop in kireka trading centre and the same evening he burgles the house of the Barclays bank manager which is 100 yards away and shortly thereafter he rapes a woman at mulago hospital. 

The question will be whether all these offences are founded on the same facts and therefore can be joined in one charge. These offences are definitely not founded on the same facts. The next question will then be whether these three offences form part of a series of offences of the same or similar character. Theft and burglary may be of the same character the common fact being the accused’s dishonest intention to acquire that which doesn’t belong to him. 

However not withstanding the proximity in time and distance, the offence of rape is different in character from the offence of theft. Rape is a sexual offence against morality whereas theft and burglary are offences against property. Therefore it would be inappropriate to join the charge of rape with that of theft and burglary. It should be noted that where more than one offence is charged in a charge, a description of each offence so charged shall be set out in a separated paragraph of the charge called a count. In the case of R v DALIP SINGH The appellant and another were charged with theft of property belonging to the Kenyan and Ugandan railways. 

In the second count, the appellant was charged and convicted of giving a bribe to a police officer in order to secure his release from arrest and prosecution for the theft. There was evidence that the bribe had been offered shortly after the arrest of the two men. On appeal to the CA it was argued that there had been an improper joinder of charges as the stealing and the bribery were not offences of a similar character nor were they founded on the same facts. It was held that although the two offences were different in character, they were founded on the same facts. The evidence adduced indicated that the bribe was offered within a very short time after the appellant and his counterpart were arrested. 

The test used in determining whether these offences were founded on the same facts was the proximity in time between the commissions of the two offences. It was noted that proximity in time mattered a lot. Section 86(3) MCA provides that where before trial or at any stage of the trial, the court is of the opinion that the accused person may be embarrassed in his or her defence by reason of being charged with more than one offence in the same charge the court may direct that any of the offences be tried separately. In Joseph S/O Odoro v R It was stated that a possible embarrassment might be caused by charging a string of different offences in the same charge. It would be unfair to put a man on trial on an indictment containing 40 counts involving distinct charges of false pretences. 

 In AliKaeli v R It is a rule of practice that has become a rule of law that no other count can be joined to a count of murder or manslaughter except where the additional count is based precisely on the same facts as the more serious charge, i.e where murder resulted from arson, the court may exercise its discretion and allow the charges to be tried together. See Yowana Sebuzukira v Uganda (28) In AliKaeli v R The accused was charged with five offences. Two were for manslaughter, one for assaulting a police officer, another for drink driving and the last was for driving a defective motor vehicle. All these were arising out of a motor accident. It was held that no other count can be joined to a charge of murder or manslaughter and that the basis for this rule is that a trial on a charge of that nature was so serious and complicated that the defence should not be embarrassed by the necessity of having to deal at the same time with other matters. The court said that although this ought to be regarded as a rule of practice amounting to a rule of law, the failure to comply with it would not necessarily result in quashing the conviction unless the accused was prejudiced at his trial.

 If, however the additional charge is based precisely on the same facts as the more serious offence, for example, where murder resulted from arson, the court may exercise its discretion and allow the charges to be tried together. But under no circumstances can offences committed by two different individuals on different occasions at different places be joined in the same charge merely because the complainant is the same. Such misjoinder would no doubt, render the trial a nullity. 

 JOINDER OF PERSONS/OFFENDERS 

 S.87 MCA and S.24 of the T.I.A provide that the following may be joined in one charge and may be tried together; a) persons accused of the same offence committed in the course of the same transaction, i.e if two or more persons jointly commit robbery at a bank, they may be joined in one charge and tried together. 

b) Persons accused of an offence and persons accused of abetment, or of an attempt to commit that offence. i.e if A and his brother B get hold of a girl and throw her down. While A has sexual intercourse with the girl, B holds the girl’s legs to assist A. Both A and B can may be joined in one charge and may be tried together for rape. 

c) Persons accused of more offences than one of the same kind (that us to say, offences punishable with the same amount of punishment under the same section of the penal code act or any other written law) committed by them jointly within a period of twelve months. For example, if cattle raiders attack a village at night and several people are killed, all the raiders can be jointly charged and tried for the several murders. 

d) Persons accused of different offences committed in the course of the same transaction. In the case of Dalip Singh, it was stated that the test to be applied in order to determine whether different offences have been committed in the course of the same transaction is whether it was inherent in the acts constituting the offences, that from the very beginning of the earliest act the other acts were either in contemplation or necessarily arose there from, or whether from the very nature of the transaction in view, they formed component parts of one whole transaction. (Jackie, john and peter are muk students. They decide on one Sunday evening to go for drinks at Bermuda… Jackie drives back and on her way, she knocks a pedestrian, who is injured badly, john gets to the main gate and assaults the guard who refuses to open the gate for the trio after midnight, peter breaks complex window to let Jackie in since the custodian has refused to open..( Jackie- grievous bodily harm, john assault, peter malicious damage to property) 

e) Persons accused of any offence under chapters 25 to 29 of the PCA f) Persons accused of any offence relating to counterfeit coin under chapter 35 of the penal code act and persons accused of any other offence under the chapter relating to the same coin, or of abetment of or of attempting to commit any offence. It should be noted that if two or more persons are charged or indicted separately, they cannot be tried together even though they are indicted of the murder of one and the same person. Such a trial would be a nullity. In Uganda vs Yokasafati Edopa & 8 others [1977] HCB 3. It was held that a misjoinder of persons is a mere irregularity and cannot be treated as having the effect of making the trial a nullity. A nullity can not be rectified and it will lead to the quashing of the conviction. 

ALTERNATIVE CHARGES 

 An alternative charge is an additional count laid against the accused in the same charge where the prosecution is not certain of which offence the facts of the offence will support. The matter is then left in the hands of the court to decide which of the two counts the evidence supports. For example, where the prosecution is not sure whether the conduct of the accused amounts to theft of property or obtaining that property under false pretences, since the two offences are of the same character, one can be charged as an alternative to the other. 

The commonest example of alternative charges is found in cases of theft with alternative count of receiving stolen property. It should be noted that the alternative charge must be formally charged as an alternative charge. In the case of Harry Isiko v Uganda SCCA No 4 of 1993. It was held that the whole purpose of a criminal trial with its charges and particulars is to avoid surprise. Failure by the prosecution to formally charge as an alternative charge the offence of theft on the charge sheet, clearly prejudiced the accused as he had no way of knowing what he was to defend. The proper procedure should be to add the theft charge formally as an alternative to the charge of false pretence. It should further be noted that a conviction on the alternative count can only be entered if the prosecution fails to prove the main count. In the case of Wanda Alex and two others v Uganda SCCA No 42 of 1995, it was held that a conviction on the alternative count of murder, when the judge had already entered a conviction on the main count of robbery was an error in law. Point of emphasis, an accused cannot be convicted on both the main count and its alternative; the court has to make a choice on one of them if a conviction is to be entered and then no finding is made on the other count. The accused can of course be acquitted of both if the prosecution fails to prove any of them. 

  DEFECTS IN CHARGES AND INDICTMENTS 

A defect in a charge or indictment may come about either because of a failure to comply with the rules of framing charges or indictments under s.88 M.CA and w.25 T.I.A, or as a result of a mis joinder of offences or persons. However, whatever error or defect there may be, the validity of the proceedings cannot be questioned unless such error is material to the merits of the case and involves a miscarriage of justice. In the case of Uganda v Borespeyo Mpaya [1975] HCB 245, it was stated that a miscarriage of justice occurs where by reason of a mistake, omission or irregularity in trial, the appellant has lost chance of acquittal which was otherwise open to him. In the case of Uganda Vs Dickens Elatu and another, the two parties were charged under the following charge sheet. Statement of offence Adultery contrary to section 150 A (1) and (2) of the penal code. 

 Particulars of offence Count no 1. Dickens Elatu on the 22nd day of October 1971, at oyama village, k’do subcounty, kaberamaido county in the Teso district, you were found committing adultery with Bibiyan Akello, a married woman not being your wife. Count no II. Bibian Akello on the 22nd day of October 1971, at oyama village, k’do subcounty, kaberamaido county in the Teso district, you were found committing adultery with Dickens Elatu, not being your husband. What are the defects in this charge? While accepting this as an irregularity, the learned judge held that it did not occasion a miscarriage of justice. The accused was not in anyway misled as to the nature of the offences with which they were charged. There was therefore no miscarriage of justice. 

 DUPLICITY OF CHARGES 

 A charge whish is duplex is defective and may be bad in law if the defect cannot be cured by correction of otherwise. If two or more offences are included in one count, the charge is bad for duplicity because only one offence can be charged in a count. Two or more offences can be charged in one charge provided they are contained in separate counts. For instance if the accused has assaulted two persons at the same time, the accused may be charged with the assault of the two persons in the same charge, but the assault on each person is to be charged in a separate count because assaulting any person is a complete and separate offence even if committed in the same transaction. Similarly if two accused persons assault a person on two different occasions, they can not be charged in one count or same charge sheet, but in separate charge sheets so that each person will be tried separately. It is therefore clear that a charge is bad for duplicity if it contains a misjoinder of counts or offences, or a misjoinder of persons or offenders. 

 UNNECESSARY CHARGES. 

A) ATTEMPTS: 

 Where a person is charged with having committed an offence, it is not necessary to add a count for attempt to commit the same offence since he can be convicted of attempt. (s.146 MCA, s.88 TIA) B) 

ACCESSORY AFTER THE FACT 

 When a person is charged of an offence, he may be convicted of being an accessory after the fact to the commission of the offence even without being so charged in accordance with s. 147 MCA, S.89 T.IA 

 C) MINOR AND COGNATE OFFENCE 

 Where a person is charged of an offence and facts are proved which reduce it to a minor cognate offence, he may be convicted of the minor cognate offence although he wasn’t charged with it. ( s. 145 MCA, S. 87 TIA) The offence must be both minor that is of less gravity and cognate that is, of the same kind, nature, genus, or species. For instance, a person charged with murder, may be convicted of manslaughter, a person charged with robbery may be convicted of theft, a person charged with assault occasioning actual bodily harm may be charged with common assault. See ndecho v R 1951 18 eaca 171, r v mayanja 6 ULR 11. 

  AMMENDMENT OF CHARGES/INDICTMENTS

A magistrate is given power under s.132 to amend a charge if he is satisfied that no injustice or prejudice will be caused to the accused. The power may be exercised under any of the following circumstances;

 a) where the evidence discloses an offence other than the offence with which the accused is charged 

b) where the charge is defective in a material particular. (A defective charge is one that is imperfect.) lk at Uganda vs Dickson Elatu. 

c) Where the accused desires to plead guilty to an offence other than the offence with which the accused is charged Then the court, if it is satisfied that no injustice will be caused to the accused thereby, may make an order for the alteration of the charge by way of its amendment or by the substitution or addition of a new charge as it thinks necessary to meet the circumstances of the case. s.132 (2) where the charge is altered, the call shall thereupon call upon the accused person to plead to the altered charge.#

 the accused will have a right to give or call such further evidence on his or her behalf as he or she may wish. The amendment of the charge is made at the request of or application of the prosecutor and the court has discretion to permit the amendment before judgment is pronounced. 

The court can amend a charge at any stage of the trial, even after the close of the case for the defence provided no injustice is caused to the accused. See S.50 and s.51 TIA for alteration of indictments) Amendments should be limited to periods before judgment is pronounced otherwise grave injustice would be caused to the accused by having to re open the case after a verdict of an acquittal. In Maulidi Abdulla Chengo v R, a new charge which carried a more sever penalty than the original charge was substituted at the close of the case for the defence. It was held that such substitution at such a late stage of an entirely new charge for a more serious offence couldn’t be said to have been made without injustice to the appellant.

 Lk at s.132(6) MCA, the prosecution may be ordered by the court to pay costs incurred to the accused owing to the alter 

 INNOCENT B.R. AHIMBISIBWE

 LAW DEVELOPMENT CENTER. 

 Email: innopianist4@gmail.com