Committal, Nolle Prosequi, joinder of persons, substituted convictions, Bail, Charges
CHARGES
A charge is defined as a written statement containing as accusation against a person alleged to have committed an offence. In the High Court, this is referred to as an indictment. A charge sheet contains a statement and particulars of an offence. This is provided for in sections 85 and 88 of the Magistrates Courts Act.
General Rules Regarding Charge Sheets
A charge sheet commences with the statement of offence. The statement of offence describes the offence in ordinary language avoiding use of technical terms. This was upheld in the case of COSMA VS R (1955) 22 EACA 450.
After the statement are the particulars of the offence. The particulars should be set out in ordinary language in which technical terms are avoided. It must be noted that where a charge contains more than one count, the counts should be numbered consecutively.
Court held in R V. TAMBUKIZA 1958 EA 212; that the final charge is the essence in criminal procedure and the failure of the Magistrate to draw up and sign a final charge was a defect which rendered the trial a nullity. Failure to draft formal C/S renders the trial a nullity. Thus the charge sheet must be signed. Court held further in UGANDA VS OCILAJE S/O ERAGU [1977] HCB 9 where Allen J held that a charge sheet submitted by the Police Officer is neither proper nor complete if it is unsigned by a Police Officer.
Defects In Charge Sheets
A charge sheet is defective and may be bad in law if the defect can not be cured by correction or otherwise. Below are some of the defects which can be evident in a charge sheet.
DUPLICITY
A charge sheet is bad for duplicity if it has more than one offence in one count; or if two accused persons are charged in one charge sheet yet the offences are different and do not warrant a joinder of persons.
UNNECESSARY CHARGES
This is conversed by section 146 of the Magistrates Courts Act. the most common example of this is charging an individual with an attempt to commit an offence. It is proper to charge the person with the offence such that where this is not proved, one can be convicted of attempting to commit that offence.
ACCESSORY AFTER FACT
Another example is charging one as an accessory after fact; conversed in section 147 of the Magistrates Courts Act. it is an unnecessary charge.
MINOR AND COGNATE OFFENCE
Another example is charging an individual with a minor and cognate offence; this is provided for in section 147 of the Magistrates Courts Act. Court outlawed this in FUNO VS UGANDA (1967) EA 363.
SUBSTITUTED CONVICTIONS
Another unnecessary charge is use of substituted convictions; thus where court finds one guilty of an offence different from the one he was charged with. These type of offences are covered in sections 149 -157 of the Magistrates Courts Act; they include:
- If one is charged with manslaughter, he or she can be convicted of traffic offences under sections 2,3,4 of the Traffic and Road Safety Act.
- If one is charged with rape, he or she can be convicted under sections 128,129,132 and 149 of the Penal Code Act.
- If one is charged with defilement, he or she can be convicted under sections 128,132 of the Penal Code Act.
- If one is charged with burglary, he or she can be convicted of kindred offences under sections 295,296,278 or 300 of the Penal Code Act.
- If one is charged with obtaining money by false pretences, he or she can be convicted of offences such as receiving stolen property or retaining stolen property, stealing.
It must be noted that charges can be amended if the amendment will not cause injustice to the accused person. This discretion is conferred on the Magistrate in section….. of the Magistrates Courts Act.
Court held in UGANDA V. ELATU Crim Rev 71/72 that “it is not every obvious irregularity and defect in a chargesheet that makes it bad in law and thus render the proceedings a nullity. The test is what the effect of the defect in the charge on the trial and conviction of the accused and whether there has been in fact failure of justice.
A wrong section or law was discussed in UG. V. BORESPAYAO MPANYA (1975) HCB 245, where the accused charged and convicted under the forest rules instead of the Forest Act, on revision, Saied J held that the charge disclosed no offence. However, the charge was not a nullity or bad merely because the rules were cited instead of the Act but would simply be defective or imperfect because a bad charge would be disclosing no offence known to law but as long as the particulars leave no doubt of the offences the accused is charged with, the charge would not be bad in law but defective.
JOINDER OF COUNTS
This is provided for in section 86(1) of the Magistrates Courts Act and section 22(1) of the Trial on Indictments Act and the general rule is that any offence may be charged in the same count if the offences are of the same facts or are part of series of offences of the same or similar character. This is fortified by ZABASSAJJA VS UGANDA (1968) EA 384.
Another cardinal rule regarding joinder of counts is that no count is to be joined with a count of murder or manslaughter; except where the additional count is based precisely on the same facts as the more serious charge. This principle is fortified in YOWAN SEBUZUKIRA V R (1965) EA 684
Thirdly, where more than one offence is charged in a charge a description of each offence ought to be set out in a different paragraph. This is provided for in section 86(2) of the Magistrate Courts Act and section 21(2) of the Trial on Indictments Act.
JOINDER OF PERSONS
Joinder of persons is provided for in section 87 of the Magistrates Courts Act and section 22 of the Trial on Indictments Act. Below is a discussion of the rules relating to joinder of persons.
Where persons are accused of the same offence committed in the course of the same transaction; under sections 87 (a) of the Magistrates Courts Act and 22 (a) of the Trial on Indictments Act.
Secondly, where persons accused of an offence and persons accused of assisting or attempting to commit such offence; under sections 87 (b) of the Magistrates Courts Act and 22 (b) of the Trial on Indictments Act.
Thirdly, persons accused of more offences than one of the same kind that is to say; offences punishable with the same amount of punishment under the same section of the Penal Code or any other written law committed by them jointly within a period of twelve months; under sections 87 (c) of the Magistrates Courts Act and 22 (c) of the Trial on Indictments Act.
Fourthly, persons accused of different offences committed in the course of the same of the transaction; under sections 87 (d) of the Magistrates Courts Act and 22 (d) of the Trial on Indictments Act.
Fifthly, persons accused of any offence which refers to offences of stealing, robbery, burglary and false pretence; may be charged with persons accused of receiving or retaining such property stolen or robbed; under sections 87 (e) of the Magistrates Courts Act and 22 (e) of the Trial on Indictments Act.
Lastly, persons accused of any offence relating to counterfeit coins under cap XXXVI of the Penal and persons accused of any other offence under that cap relating to the same coin or of abatement or attempting to commit any such offence; under sections 87 (f) of the Magistrates Courts Act and 22 (f) of the Trial on Indictments Act.
Mandatory Bail
This is provided for in Article 23(6)(b) and (c). In respect to offences triable by the High Court and the surbordinate courts, the accused person is entitled to statutory bail after a period on remand, before commencement of the trial of 120 days.
In respect to offences triable by only the High Court, the accused person is entitled to statutory bail after a period on remand, before committal to the High Court for a period of 360 days.
BAIL IN HIGH COURT
When a case is triable in High Court, The matter has to first be entertained by a Magistrate’s Court for mention. The practice is that the Magistrate tells the accused person that he has no jurisdiction to try the matter. The Magistrate then commits the Accused to the high court (when told by the state that the case is ready) or places you on remand. In this instance therefore, an accused person who seeks bail applies to the High Court. You can apply for bail before committal.
Counsel for accused is enjoined to draw the Notice of Motion + Affidavit. This is premised on section ……… of the Trial on Indictments Act Cap 23 and Rule 2 of The Judicature (Criminal Procedure)(Applications) Rules SI 13-8 which provides that all applications to the High Court in criminal cases shall be in writing, and where evidence is necessary, shall be supported by affidavit.
The notice of the Application is served on the Director of Public Prosecutions, by virtue of rule 4 (1) of the Judicature (Criminal Procedure) (Applications) Rules SI 13-8.
According to Section ….. of the Trial on Indictments Act the accused must prove the following;
· That he has substantial sureties (members of society)
· That he is willing to pay an amount as bond should he defy the conditions of the bail if granted
The Accused must show further that :-
· He will not abscond from court
· He will interfere with witnesses
In grant of bail in the High Court, court looks at the nature of accusation, gravity of offence and antecedents of accused inter alia. There are some offences which are non-bailable by Magistrate Court and these include:-
· Terrorism, cattle rustling, offences under fire arms, act punishable by sentence of less than 10 years, abuse of office, rape, embezzlement, causing financial loss, corruption, bribery.
JURISDICTION
It must be noted that a court should have statutory authority pecuniary, geographically inter alia to try a case. The power to try a case has to be conferred by statute. Save for the High Court which has inherent and original jurisdiction in all matters, criminal jurisdiction differs from grade of a judge to another.
DRAWING UP A SUMMARY OF THE CASE
A summary of the case is conversed in the context of section 168 of the Magistrate Courts Act. It accompanies an Indictment and does give the “summary” to the case before the High Court. It is written dfin ordinary and plain language. It contains material particulars which the state attorney or the DPP proposes to adduce at the trial. It is signed by the State Attorney.
The reasons advanced for a summary of evidence are; first and fore most to enable the accused person to know the case against him and also enable him prepare a defence.
The summary of evidence enables the prosecution prepares for the case and it also gives the trial judge an opportunity to acquaint himself with some of the problems likely to arise in the course of the trial.
Section 1 of the Trial on Indictments Act provides that the High Court shall have jurisdiction to try any offence under any written law and may pass any sentence authorised by law. It must be noted however that no criminal case shall be brought before the High Court unless the accused person has been committed for trial to the Magistrate Courts Act.
Committal proceedings are provided for in section 168 of the Magistrates Courts Act. These proceedings are a consequence of a fact that a magistrate does not have the jurisdiction to try a case before him. The accused person thus appears before him for mention but does not take plea. The following should be noted in committal proceedings:
· A person should be charged with an offence in the Magistrate’s court, triable by the High Court.
· The DPP or the State Attorney files an indictment with a summary of the case in the Magistrates Court.
· The Magistrate is given a copy of the Indictment and summary of the case.
· The Magistrate reads out the indictment and summary of the case and explain to the accused the nature of the accusation against him in the language he or she understands.
· The magistrate then commits the accused for trial to the High Court and transmits copies of the indictment and summary of the case to the registrar of the High Court.
· The accused person is then remanded by the magistrate pending his or her trial.
It must be noted that the effect of the committal is that if the accused was on bail, it lapses with the committal.
Another form of committal is evident in section 164 of the Magistrate Courts Act, which is committal for sentence.
In such a scenario, the court should be presided over by a Magistrate Grade One, Two or Three.
Secondly, the accused should have been convicted and the magistrate forms an opinion that the accused deserves a greater punishment;
Thirdly, that such punishment should be out of his sentencing jurisdiction under section 162 of the Magistrate Courts Act.
Fourthly, the Magistrate commits such person to the Chief Magistrate’s Court. If the Chief Magistrate considers that the conviction is improper, he forwards the record to the High Court and postpones passing of the sentence pending the decision of the High Court. The Chief Magistrate is at his discretion empowered to release the offender on bail or remand him pending the decision.
It must be noted that under section 166 of the Magistrates Court’s Act, the magistrate has no jurisdiction to try any offence; he can remand the accused person in custody to appear before a superior court.
Court held in Uganda vs Yonasani Lule Monthly Bulletin 17 of 1969 that a committing Magistrate should only commit an accused person to the High Court if there is a reasonably arguable prima facie case and should not dig into the merits of the case viz the weight of the evidence. Usually if the matter does not disclose a reasonably material prima facie case; then the Magistrate is at discretion to deny committal of the accused person to the High Court.
GROUNDS FOR WITHDRAW / NOLLE PROSEQUI
There were laid down in the case of Sezi Musoke And Anor Uganda criminal appeal no. 39 of 1974, and these are :
1) insufficient evidence
2) lack of compliance by witness either they have relocated or cannot be found to which the I.O must prepare an affidavit of service and the same be attached to the letter. Since there are phone numbers try calling the witness
3) no prima facie case
Nolle prosequi is usually entered in any of the above situations
Steps
- the rsa has to write to an opinion or legal memo powers to grant a nolle prosequi. This letter should be inform of defence and opinion to allow the DPP determine whether to involve their powers or not
- the DPP will sign the nolle prosequi.
- The nolle prosequi is presented before he presiding judge or magistrate.
- The judge shall then enter the nolle prosequi and have the accused set free
- Where accused is not in court , the registrar shall cause the notice in writing of the nolle prosequi to be served to the keeper of the prison .(s.134(2) of T.I.A)
Effects of nolle prosequi
Persuant to s.134(1) of T.I.A nolle prosequi is not a bar to subsequent proceedings against the accused on account of the same facts . the case can be reinstated however this must be before the defence case was made. If the nolle prosequi is entered after the defence has made its case , the nolle serves as an acquittal and as such the case cannot be reinstated.
BY: AHIMBISIBWE INNOCENT BENJAMIN
Entertainment Lawyer
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