Tumusiime v Uganda (Criminal Appeal 196 of 2016) [2023] UGCA 182 (19 July 2023)

#### THE REPUBLIC OF UGAIiIDA

# IN THE COURT OF APPEAL OF UGANDA AT FORT PORTAL

(Coram: Buteera, DCJ; Mulyagonja, & Luswata, JJA)

## CRIMINAL APPEAL NO. 0196 OF 2016

5 TUMUSIIME PETER aaaaaoaaaaaaoaooooaaaooaaaaaoaaataaaaaaaooaaaa ooaaaaaaoaaaaaaaaaaoaaaalaaaaoaaooaaaooaaaaaao APPELLANT

#### VERSUS

UGANDA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

(Appeal against the decision of Batema N. D. A., J, in High Court Criminal Case No. O9 of 2OL6, delivered on 23'd June 2OL6 at Fort Portal).

#### JUDGMENT OF THE COURT

# Introduction

The appellant was convicted of the offence of murder contrary to Sections 188 & 189 of the Penal Code Act, Cap L2O, and sentenced to 17 years' imprisonment.

#### Background

It was alleged that the appellant on the 5th d.y of July 2Ol5 at Butebe village, Karambi sub-county in Kabarole district, with malice aforethought, caused the death of Kabatabazr Dinah.

It was the prosecution case that on that day at around 4:00 hrs at Butebe Village in Kabarole District, the appellant cut the deceased several times on the neck and hands till she died. Thereafter, he covered her with a blanket and fled. The mother of the deceased upon noticing that her daughter was missing reported the matter to Po1ice and a search was mounted. The appellant's house was broken into 25

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and the body of the deceased was found therein. The Appellant was charged with murd.er. He pleaded guilty pursuant to a plea bargaining agreement that he signed on the 23'd June 2016, agreeing to a sentence of 17 years' imprisonment. The trial Judge sentenced the appellant to t6 years and l-month imprisonment, having deducted the period spent on remand.

The appellant being dissatisfied with the decision appealed to this court on the following ground of appeal;

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The Learned Trial Judge erred in law and fact when he failed to ascertain whether the appellant understood the consequences of a plea bargaining agreement, thereby causing a miscarriage of justice.

#### Representation

At the hearing of the appeal the appellant was represented by Mr. Rwakatooke Mugisa Patrick, on state brief. The respondent was represented by Ms Fatina Nakafeero, a Chief State Attorney, and Mr. Oneko Obbo Patrick, a State Attorney, from the office of the Director of public Prosecutions. Counsel for the parties applied and were allowed to adopt their written submissions. This Court considered them in deciding the aPpeal. 20

# Submissions for the APPellant

Counsel submitted that the trial Judge having admitted the plea bargain agreement on 23rd June 2016, was alive to the agreed

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sentence of 17 years' imprisonment but misdirected himself when he appellant understood the the ascertain whether failed to consequences of the agreement, thereby causing a miscarriage of justice.

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Counsel submitted that the practice of plea-bargaining is regulated by the Judicature (Plea Bargain) Rules, 2016. He referred to Rule 4 which defines 'plea bargain' to mean:

> "the process between an accused person and the prosecution, in which the accused person agrees to plead guilty in exchange for an agreement by the prosecutor to drop one or more charges, reduce a charge to less serious offence, or recommend a particular sentence subject to approval by court."

He cited Luwaga Suleiman alias Katongole v Uganda CACA No. 15 **858 of 2014** where this court held that:

> "Once parties conclude the plea bargain process the said process is reduced into a plea bargain agreement which is defined under Rule 4 of the Judicature (Plea Bargain) Rules, 2016 to mean an agreement entered into between the prosecution and an accused person regarding a charge or sentence against an accused person, this means that the plea bargaining process is intended to benefit the accused, victim and the state."

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Counsel contended that according to the court proceedings of 23rd June 2016, when called upon to take plea and for court to record a plea bargain agreement, the appellant stated that: "I am remorseful. I regret why I killed my wife." To counsel, from the words of the


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appellant on the Court record, this was an equivocal plea as the sarne suggested a plea of pardon contrary to the plea bargaining agreement on Court record. Counsel contended the appellant ought to have been given an opportunity to have the plea bargain agreement read to him,

- 5 asked whether he understood the contents and consequences of the same already executed before it could be recorded by court. That the plea bargain agreement reflected no explanation of the same to the appellant. - Counsel referred to Rule 12 of the Judicature (Plea Bargain) Rules, 2Ot6 which provides that at the time of taking plea in Court, Court is required to ascertain that the appellant has full understanding of what a plea of guilty means, its consequences, the voluntariness of the appellant's consent to the plea bargain and waiver of his constitutional rights. Counsel submitted that the appellant's constitutional rights to a fair hearing were violated when he was convicted and sentenced basing on a Plea Bargain Agreement without complying with the provisions of Rule 12 Judicature (Plea Bargain) Rules, 2016 10 15

### The Respondent's submissions

Counsel opposed this appeal and submitted that the Judge did not misdirect himself as regards rule 12 of the Plea Bargain Rules in ascertaining whether the appellant understood the consequences of the plea bargain agreement. He submitted that even if Court were to assume that the Judge misdirected himself, the alleged misdirection did not occasion a miscarriage of justice. 25


Counsel relied on Section 139 ( 1) of the Trial on Indictments Act for the proposition that; no findirg, sentence or order passed by the High Court shall be reversed or altered on appeal on account of any error, omission, irregularity or misdirection in the judgment or other proceedings before or during the trial unless the error, omission, irregularity or misdirection has in fact occasioned a failure of justice.

Counsel argued that the section instructs/ directs that before the appellate court can reverse or alter a finding of the High Court on account of an error, misdirection or irregularity, the Court of Appeal should demonstrate that such error has in fact occasioned a failure of justice. He cited Kifamunte Henry v Uganda SCCA No- 10 of L997, to support his submission. 10

Counsel further referred to section 1 39(21 of the Trial on Indictments Act, which provides for raising objections at the earliest opportunity during trial. He submitted that the wording of this section is instructive to parties to point out irregularities at the earliest stage of the proceedings so as to arrest occasioning of a miscarriage of justice. Counsel made reference to page 6 of the record of proceedings, which captured all the persons present at the hearing on 23d June 2016. 15 20

It was counsel's contention that the plea bargain process was properly conducted as the appellant was represented by counsel and there was an interpreter for Rutooro at the time. That the parties appended their thumb print and signature, respectively, which the Judge confirmed by appending his signature after being satisfied that 25


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schedule 2 and rule 1O of the Plea Bargain Rules had been complied with.

5 Counsel further contended that the language of Rule 12 is couched in a directive manner and that it is not mandatory to record every step in the plea taking process once schedule 2 has been complied with. That what is required of Court is to satisfy itself that the accused person understands what is provided for in Rule 12 to meet the ends of justice. He referred to Article L26l2l (e) of the Constitution which provides that substantive justice shall be administered without undue regard to technicalities. He contended that this appeal is based on a mere technicality and this honorable Court should be persuaded to dismiss it. 10

- Counsel further referred to Uganda v Guster Nsubuga & Robinhood Byamukama; SCCA No. 92 of 2O18, at page 22 of the judgement where Court noted that it would be expecting too much to demand that all trials must run like clockwork, short of which they would result in nullification of the entire trial. Counsel argued that the appellant voluntarily submitted to the plea bargain in the presence of his counsel aided by an interpreter thus the appellant waived his constitutional rights and cannot turn around and claim that his rights were violated. 15 20 - Counsel prayed that the conviction and sentence against the appellant be upheld and this appeal be dismissed or in the alternative that this should court be persuaded to find that a miscarriage of 25 justice was occasioned by the alleged irregularity, this case. to order a retrial of ,


# The of the Court

We have carefully studied the court record, considered the submissions of both parties and the law and authorities cited therein. It is trite that a first appeal from a decision of the High Court requires this Court to review the evidence and make its own inferences of law and fact, See: Rule 30 (1) (a) of the Judicature (Court of Appeal Rulest Directions S. I 13 -1O. In Kifamunte Henry v Uganda (Supral, it held that on a first appeal, this court has a duty to:

:"" '...review the evidence of the case and to reconsider the materials before the trial Judge. The appellate court must then make uP its own mind not disregarding the judgement appealed from, but carefully weighing and considering it." 10

The appellant in this appeal faults the trial judge for convicting and sentencing him without giving him an opportunity to have the plea bargain agreement read to him and asked whether he has understood the contents of the plea bargain agreement.

The plea bargain procedure is defined under rule 4 of the Plea Bargai" as:

Y.s tThe process between an accused person and the prosecution, in which the accused person agrees to plead guilty in exchange for an agreement by the prosecutor to drop one or more charges, reduce <sup>a</sup> charge to a less serious offense, or recommend <sup>a</sup> particular sentence subject to approval by coutt."

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1/r" '! Once the parties conclude the plea bargaining process, the gist of their agreement is reduced into a plea bargain agreement, which is binding upon both the accused and the prosecution.

5 Rule 1O of the Judicature (Plea Bargain) Rules provides that a plea bargain agreement shall, before being signed by the accused, be explained to the accused person by his or her advocate or Justice of the peace in a language that the accused understands and if the accused person has negotiated with the prosecution, through an interpreter, the interpreter shall certify to the effect that the interpretation was accurately done during the negotiations and execution in respect of the contents of the agreement. L0

The brief record of proceedings is reproduced below for ease of reference; 15

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accused present

Bivanju for state

Kateeba for accused on S/B State: we agreed on 17 yrs Accused: I am remorseful. I regret why I killed my wife Court: the agreement is accepted of 17 years, less by 11 months. The accused is sent to Morokatipe-l6yrs and 1 month." 20

The procedure is clearly stated in rule 12 which we shall reproduce below, for ease of reference;

" 7 2. Recording of plea bargain agreement bA the court.


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(1) Subject to the procedure prescibed in the Schedule 2, the court shalt inform tlte aca,tsed person of his or her rights, and shall satisfy itself that the acatsed person understands the follouing- (a) the ight-

5 (i) to plead not guilty, or hauing alreadA so pleaded, the effect of that plea;

(ii) to be presumed innocent until proued guilty;

(iii) to remain silent and. not to testifg during the proceedings; (iu) not to be competted to giue self -incriminating euidence;

(u) to a full trial; and 10

> (ui) to be represented by an aduocate of hb or her choice at his or Lter expense or in a case triable by ttrc High Court, to legal representation at the expense of tlrc State;

(b) that bU accepting tlte plea agreement, he or she is utaiuing hi,s or her right as prouided for under paragraph (a);

(c) the nafitre of the charge he or she is pleading to; (d.) anA maximum possible penalty, including imprisonment, fines, community seruice ord,er, probation or conditional discharge;

(e) ang applicable forfeifitre;

(fl the corrrt's authoritg to order compensation and restittttion or botLt; and 20

(g) that bg entering into a plea agreement, he or she is waiuing the rigltt to appeal except as to the tegalitg or seuerita of sentence or if the judge sentences the acatsed outside the agreement.

(2) The cttarge sltatl be read. and explained to the acansed in <sup>a</sup> language that he or she understand.s and the acansed shall be inuited to take plea.


(3) The prosecution shall laA before the court the facfiial basis contained. in the plea bargain agreement and the court shall determine whether tttere exists a basis for the agreement. ft) The accused. person shall freely and uoluntarilA, without threat or use of force, exeatte the agreement with fuU understanding of all

5 matters.

(5) A Plea Bargain Confirmation shatl be signed by the parties before the presiding Judicial officer in the Form set out in the Schedule 3 and shatl become part of the court record and shall be binding on the prosecLttion and the aca,tsed."

A similar situation arose and was handled in Wanja v Uganda CACA No' <sup>243</sup>"i.1l1t;ffi:lltHl"\*ing the constitutionar rights

outlined in rule 12 is to ensure that an accused Person properly understands and appreciates the seriousness of the offence he is indicted with and the consequences of pleading guilty which includes the sentence he may suffer."

It was \*"Tl.:l';:1''.n".

arthough the rearned triar Judge targely followed the procedure laid down in Adan vs Republic (supra), he omitted a very important part of explaining the ingredients of the offence to the appetlant. However. we are of the view that this omission by the court was cured bv the fact that the AD t was taken throueh a p bargain process in explained to him insredients of which his counsel the

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the offence. Indeed. the coDv of the ent on record which the appellant and the prosecution sisned attests to that. In the part of his plea in the form which he signed, the appellant did indicate that prior to the plea he had had a full opportunity to discuss with his advocate the facts of his case, the elements of the charge, ony defenses he may have had, his constitutional rights and waiver of those rights as well as the consequences of his plea...'!We must obsenre that we took the above course of relying on the content of the plea bargain agreement the parties had executed because in our view, our finding that it was not properly recorded in court and could not be relied on for purposes of determining the issue regarding the sentence imposed on the appellant, does not affect its validity. l[Ie believe we can still safely rely on it to find that the appellant had had the opportunity of having the ingredients of the offence explained to him as part of that process. By so sayhg' we are by no means downplaying the mandatory requirement for the trial court to explain the ingredients of the offence to an accused person during plea taking. We believe each case should be treated according to its own facts and circumstances while taking into account the objective of this fundamental requirement. We think in this case the obiective was achieved bv the plea <sup>a</sup> ln Drocess." (Emphasis is added)


In the instant matter, we have looked at the plea bargain agreement on court record. The appellant signed the plea bargain agreement in the presence of his lawyer, Mr. Cosma Kateeba, who also signed the agreement. The agreement indicates that prior to the plea, the appellant had a full opportunity to discuss with his advocate the facts of his case, the elements of the charge, afly defenses he may have had, his constitutional rights and waiver of those rights as well as the consequences of his plea. It is also indicated that the plea bargain agreement was translated to the appellant in Rutooro by one Kabugabe Agnes.

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We also note that counsel for the appellant contended that the appellant's plea of " I am remorseful. I regret whg I killed mg utfe" alluded to a plea of pardon contrary to the plea bargain agreement. However, a look at the record on page 6 shows that it does not indicate that the said statement is a plea of pardon as alleged by counsel for the appellant. In fact, it is not a plea at all.

Consequently, we conclude that the appellant's conviction for murder and sentence to L7 years'imprisonment agreed upon on his own plea of guilt was correctly done. The trial Judge compiled with the constitutional requirement of deducting the period that the appellant spent on remand, thereby sentencing him to 16 years and 1-months' imprisonment. This appeal therefore has no merit. It is accordingly dismissed. 20 25

Dated at Fort Portal this \qF Day of 2023.

TAC **Richard Buteera**

Deputy Chief Justice

$\mathsf{S}$ Irene Mulyagonj

**Justice of Appeal**

$10$ Eva K. Luswata

Justice of Appeal