RULING/PRIMA FACIE CASE

 

CRIMINAL PROCEDURE 

RULING/PRIMA FACIE CASE

Close of Prosecution Case

Section 211 of CPC – On hearing the evidence in support of the charge and such summing up, submission or argument as may be put forward, summing up and submissions re by the prosecutor and defence respectively. After which the court shall consider whether or not a prima facie case has been established. If it appears to the court that a case is made out against the accused person sufficiently it will require him to make a defence. Bhatt v Republic 2957 EA 332, where the court defined a prima facie case as one where a reasonable court directing its mind to the law and evidence would convict if not explanation were offered by the defence. Where the court is of the opinion that the prosecution has failed to establish a prima face case; then a detailed reasoned ruling will be written leading to an acquittal under Section 210 of the CPC and the accused shall be set at liberty accordingly.

Where the court finds that the prosecution has established a prima face case, then the ruling should not be detailed and no reasons are required either.

Compliance with Section 211

Once a ruling that a prima facie case has been established is entered; S 211 of the CPC provides;

1. That the court shall again explain the substance of the charged to the accused.  This is to prepare the accused person or to remind him of the charge.
2. Shall inform him that he has a right to give evidence on oath from the witness box, in which case he shall be liable for cross examination or that he can make an un-sworn statement in which case he shall not be liable to cross-examination.
3. Thirdly, even though it is not mentioned in S 211 the accused shall be informed of his right to remain silent see section 306 (3)  dealing with trial in the High Court which makes reference to this as an option that the accused may elect.  It is now standard practice in criminal courts that the court must explain this option to the accused.
4. Whichever option the accused person chooses, he shall be informed of his right to call witnesses.  Whether he chooses to give a sworn statement, unsworn etc he must be given the option. Section 211(2) enables the court to compel attendance of witnesses on behalf of the accused where there is need and to grant adjournment to enable such witnesses to attend court.
5. The accused may also apply for production of documents or thing that he considers necessary for defence. The court can reject such applications where it considers it to be vexatious or that it is intended to delay or defeat the cause of justices in which case the reasons for refusal should be recorded.

David Nalima v Republic – at the beginning of the prosecution case the appellant was unrepresented he later hired counsel at the close of prosecution case counsel withdrew. The appellant conducted his own defence and gave evidence, his co accused gave evidence and called one witness at which point the appellant indicate that he wanted to call 3 witnesses. The application was rejected on the ground that the accused knew his right to call witnesses but failed to do so. Even though the case had dragged on for a considerable period, the HC held that none of the considerations appeared to be good reasons for refusing the appellant opportunity to call witnesses.

DEFENCE CASE

The accused shall commence his defence by calling his witnesses referred to as Defence Witnesses (DW). The practice is for the accused where he has elected to give evidence whether sworn or unsworn first – see R v Malakwen arap Mutel.

This procedure ensures that the accused person who must be present through out the trial does not have the advantage of listening to his witnesses and thereby probably tailoring his own evidence to corroborate such witness statements.

The accused shall then call witnesses who shall be sworn or affirmed and shall give their evidence in chief, be cross examined by the prosecutor and re examined by the defence and finally they may be examined by the court.  The weakness is that most accused persons are unrepresented and don’t know what to do, they may be led by the court if they are unable.  The other challenge is if an accused is unrepresented they lead themselves and are cross-examined but they cannot re-examine themselves, the ideal will be for court to re-examine them for clarification.

After calling all the witnesses the defence shall signify to the court the close of their case. Both the defence and the prosecution may then address the court.  The procedure is like during the examination. The argument will be to support each side’s position. After  the close of the defence case the accused or his advocate have the being the address to the court; with the prosecutor having an automatic right of reply where the accused has adduced evidence (calling witnesses other than himself).

Where only the accused has testified the right of reply is only exercisable by the prosecution where the AG or the Solicitor General appears in person in court.

After listening to the arguments from both sides the court will proceed to write the judgment.  At the ruling stage the ruling can amount to an acquittal in the same way that a judgment can amount to an account where the court has established there is no prima facie case.

ISSUES ARISING IN THE CAUSE OF TRIAL

1.      Non attendance by complainant – Section 202 of the CPC provides that where the accused is present before the court but the complainant having had notice of time and place of hearing fails to attend trial, the court acquit the accused unless for some reason it thinks it proper to adjourn the case to another date.

2.      Section 204 Withdrawal of Complaint – at any time before a final order is passed the complainant can withdraw his complaint on satisfying the court that there are sufficient grounds and where the court is so persuaded then the accused shall be acquitted accordingly.  Usually there are attempts by people to withdraw cases such as sexual offence in which case the court can decide not to allow such an application where it feels the victim of crime may have been coerced into withdrawing the claim for where for public good it would not be right to allow withdrawal.

3.      Section 205 adjournments – allows for the court to exercise its discretion to allow for adjournment during trial.  The duration which people have to spend in remand before they can be tried is a good indication of whether there is too much delay and the court has a problem with backlog.  Courts can only manage the case they have by giving people cases that they can proceed with.  It must be ensured that the daily cause list is not overburdened by cases which will not proceed.  Adjournment should only be allowed where there is sufficient ground.

4.      Non appearance by both parties after adjournment section 206 provides that where an accused charged with an offence other than a felony does not appear after adjournment the court may proceed in his absence to convict and sentence, where the court subsequently is satisfied that non-attendance was due to reasons beyond the control of the accused the sentence may be se aside – where it is the complainant who fails to turn up then charge may be dismissed with or without costs.  This is rare in the criminal system. Where there is private prosecution one of the punitive measures against a prosecutor is to have costs awarded to the accused person.

Philip v R 1961 EA 268 – the accused was summoned to give evidence at an inquest, he appeared in court at 9 am on the required date when the magistrate did not appear so he went away at 10.30 am and when he got back to court at 4 pm he apologised.  He was then convicted on his own plea of failing to attend judicial proceedings and fined 200.  He appealed and the court held that there was no such offence created and that the court does not have summary powers to fine a person who absents themselves from court, the proceedings were declared a nullity.

5.      Witnesses – all persons may be called as witnesses in criminal cases except:

1. Children of such tender years that they have no sufficient intelligence to give evidence.
2. Insane persons
3. Persons whose understanding is affecting by temporary causes such as illness or drunkenness.
4. Deaf and dumb witnesses if they are unable by writing or signing or otherwise to communicate.  If they can communicate by writing or any other way, then they can testify.
5. The accused, and the husband or wife of the accused – spouses cannot give evidence against each other unless the offence is in relation to the spouse i.e. if the wife has battered the husband then the husband can testify.
6. Children – any child may be sworn as a witness provided that it appears to poses sufficient intelligence to understand the nature and obligations of the oath- competency is therefore based on understanding not age. The child may give un-sworn statement if the courts are of the opinion that they can understand the nature of proceedings even if they do not understand the nature of the oath. The magistrate should question the child to ascertain whether or not she understands the nature of an oath.

R v Gabriel 1960, it was the duty of the court to ascertain the competence of a child to give evidence.  It is not sufficient to ascertain that a child has enough intelligence to justify the reception of evidence, but also that the child understands between truth and falsehood.

Fransisio Matovu v R EA 260, if the magistrate does not allow the child to be sworn they should record whether in his opinion the child is possessed of sufficient intelligence to justify the reception of the evidence and if he understands the duty of telling the truth.  The court has to be clear that it is not asking the child things that are beyond the knowledge of the child.  The court has to establish whether the child ascribes to any religion, the court should find out if they know about their religion.  Where the child does not understand what an oath is the court must establish whether they understand the duty of telling the truth by finding out from the child if they know the consequences of telling the truth. If the court is satisfied then the child can testify.

7. Refractory Witness (difficult witness) Section 152 provides that whenever a person either in obedience to summons or by virtue or warrant or being present in court and being  verbally required to give evidence refuses to be sworn; a person  refuses to answer any question put to him or refuses or neglect to produce any document or refuses to sign his deposition without offering sufficient excuses, then the court may adjourn the case for any period not exceeding eight days, and may in the meantime commit that person torsion, unless he sooner consents to do what is required of him.

The committal may be ordered again and again until the witness complies.  The court can order the person to be taken to police cells for whatever amount of time until up to 8 days or compliance. Such a witness who refused may be prosecuted for contempt of court; which allows for more substantive punishment but for which a proper charge must be laid out. The provisions of Section 152 allows for a summary procedure to enable the court to deal with contempt on the face of the court by such witnesses, because the conduct of such witnesses is deemed to lower the dignity and authority of the court.  These are summary provisions and can be draconian so the court must ensure that the witness understands what is required and that he is deliberately being obstinate before resulting to punitive measures.

8. Hostile Witness – where a witness is called by a party to the proceedings either the prosecution or defence – but on taking the witness stand gives evidence that is contrary or contradictory to what the party expected him to give – that party may apply to the court to declare such a witness hostile. For a witness to be declared hostile there must of necessity be a written statement which had been recorded with the party calling such a witness and from which statement he seeks to materially deviate. If the evidence is materially different then the court could make a decision based on the recorded statement vis-à-vis the witness’s statement in court. Where the court is satisfied that the witness has deviated materially from his written statement then the court can declare the witness hostile.  The hostile witness is a concern of the party that are calling this witness and a refractory witness is a difficult witness. A declaration that a witness is hostile leads the party making the application to cross examine their own witness – this essentially means that the witness is unreliable and is treated as such.

The evidence of hostile witnesses is usually rendered useless, unless other witnesses give evidence supporting the new version.  One of the difficulties is that prosecution witnesses when they go to the police, the police insist on recording the evidence for a witness, this brings difficulties as there could be language barriers, one may have a problem where evidence is not recorded by a police officer in a language that he witness does not understand.  The court must not be punitive to a witness who may be telling the truth that the statement does not reflect what they said. There are no provisions in the CPC with regard to hostile witnesses but it is a practice in English law and so we follow it as part of common law. Where the nature and extent of deviation is considered serious enough then such a witness may be charged with perjury – i.e. by giving false information or lying before the court. With a hostile witness the ultimate is being charged with perjury but with a difficult witness they would be charged with contempt of court.

9. Commission for examination of witnesses – Section 154-158 makes provision for the HC or a magistrate of first class jurisdiction examination of witnesses in the following ways:

·      The commission may be directed to a magistrate, who shall then proceed to the place and take evidence of the witness, in the same manner that evidence is taken during trial.

·         The parties to the proceedings may tender any interrogatories in writing to court issuing the commission which may then be forwarded to the magistrate conducting the commission and who shall examine the witness upon those interrogatories – alternatively they may appear before the magistrate by advocate or if not in custody in person and may examine, re examine or cross examine the witness.

·         A magistrate below the level of 1^st class may apply to the High Court stating reasons for commission to issue for cress examination.

·         The commission shall then be returned to the magistrate.

10. Right of court to call a witness – Section 150 provides that the court may at any stage of trial summon or call any person as a witness or any person in attendance but not called as a witness or recall any person already called as a witness. The general rule is that the matter of calling witnesses should be left to the prosecution or the defence.

R v Mwisoli – the accused was convicted of murder, during the trial the judge called a defence witness whom the defence had elected not to call.  The court of appeal disapproved of such practice and considered it an interference with the defence.

R v Makanga 1937 EACA 71- the magistrate adjourned court to go and obtain a witness whom he had reason to believe could give material evidence.  There were no police officer or nor court prosecutor present.  The Court of Appeal held that a magistrate has power to summon any person as a witness at any stage of the proceedings “if it appears to him that he is essential to a just decision but that magistrate should he himself leave the bench during the hearing of a case and himself seek out the person.

11. Identification – it is an elementary rule of criminal procedure that the accused be properly identified by witnesses hence the requirement that the relationship between the witnesses and accused is established.

Identification Parades – these are carried out by police to establish whether the witnesses can identify suspects that they allege have committed offences against them.

The proper procedure to be followed in conduct of identification parades was laid down in R v Mwango 1936 EACA 29 but The Police Standing Orders also make similar provisions;

·         That the accused person is always informed that he may have a lawyer or friend present when the parade takes place.

·         That the officer in charge of the case, although he may be present does not carry out the identification.

·         That the witnesses do not see the accused before the parade.

·         That the accused is placed among at least eight persons, as far as is possible of similar age, height general appearance and class of life of him/her.

·         The accused person should be allowed to take any position that he chooses, and that he is allowed to change his position after each identifying witness has left, if he so desires.

·         Care should be exercised that the witnesses are not allowed to communicate with each other after they have been to the parade.

·         Exclusion of any persons with no business there: Careful notes should be made after each witness leaves the parade, recording whether the accused is identified or other circumstances.

·         Ensure the witness touches the person that they identify.

·          During the termination of the parade or during the parade ask the accused if he is satisfied that he parade is being response recorded.

·         While introducing the witness tell him that he will see a group of people who may or may not contain the suspect should not tell him to pick out somebody or influence in any manner whatsoever

·         The whole exercise must be scrupulously fair; otherwise the value of the parade will diminish.

This procedure was endorsed further in Musoke v R 1957 EACA 715.

Whenever the prosecution is to adduce evidence based on the conduct of an identification parade, then the magistrate must ensure that it was done in compliance with these instructions.

Ahimbisibwe Innocent Benjamin ;