Wasswa v Uganda (Criminal Appeal 281 of 2021) [2023] UGCA 249 (12 June 2023)

# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT GULU

[Coram: Egonda-Ntende, Bamugemereire & Mulyagonja, JJAJ

# CRIMINAL APPEAL NO. 281 OF 2O2I

(Arising from High Court of Uganda Criminal Session Case No. 352 of 2016 at Lira)

### BETWEEN

| Wasswa Yasin | | Appellant | |--------------|-----|------------| | | AND | | | Uganda | | Respondent |

(Appeal from a Judgment of the High Court of Uganda (Nabisinde, J.) delivered on the 27'h June 2018)

# JUDGMENT OF THE COURT

### lntroduction

- tll The appellant was indicted of the offence of aggravated defilement contrary to sections 129 (3) and (4) (a) of the Penal Code Act. The particulars of the offence were that the appellant on the 23'd of May 2016 at Biashara Cell in Apac District performed a sexual act on AF, a girl, 13 years old. He was tried, convicted and sentenced to serve a term of 25 years' imprisonment. He appealed against both conviction and sentence. - I2l The appellant set forth the following grounds ofappeal:

'1. The leamed trial judge erred in law and fact when she convicted the appellant of aggravated defilement in the absence of aggravating factors and in further absence of proofofact ofdefilement by the accused beyond reasonable doubt hence occasioning a miscarriage ofjustice.

2. The leamed trial judge ened in law by flouting the procedures oftrial in regard to assessor not being swom and assessors not properly changing in the course of the trial against the requirements of the law hence occasioning a miscarriage ofjustice.

3. The leamed trialjudge erred in law and fact by imposing a manifestly harsh and excessive sentence of 25 years' imprisonment and ignoring the mitigating factors and without considering the remand periods which sentence occasioned a miscarriage ofjustice.

4. The leamed trialjudge erred in law and fact by convicting the appellant without giving him a right to hear and cross examine the victim or victim's family members hence occasioning a miscarriage ofjustice.'

t3l Mr Lobo Akera Stephen appeared for the appellant while Ms Caroline Marion Acio, Chief State Attomey, in the Office of the Director, Public Prosecutions, acted for the respondent. Both counsel filed written submissions upon which this appeal proceeded.

### Facts of the Case

t4] AF, a young girl, alleged to be l3 years of age, with her siblings, were left in the care of the appellant on the 22"d of May 2016. In the evening of 23'd of May 2016 it was contended that the appellant performed a sexual act on the AF. AF reported to a neighbour and the matter was reported to the police. In a charge and caution statement that was made by the appellant and admitted at the trial with the consent of his counsel the appellant admitted having performed a sexual act on AF. He was subsequently indicted with aggravated defilement, tried, and convicted as charged. He was sentenced to 25 years' imprisonment.

### Ground 2 ofthe Appeal

- t5] This ground raises a fundamental matter which we must dispose of first given that it may result in disposing of the appeal in this case. This is the question of whether the trial can be conducted with a multiplicity of assessors and with only one of them having been swom in at the commencement of the trial while the others were not sworn in. Secondly whether an unswom assessor who has not been present at the reception ofevidence at the trial can join and offer an opinion upon which the trial judge may act. - t6] It is pertinent to set out relevant portions ofthe record.

#### 'Assessors:

Court: Do you know the people sitting on your left in the court? Accused: No, I don't. Court: Do you have any objection to any ofthem sitting in your trial assisting Court to arrive at a just decision? Accused: No. LAkoa Nelson (swom). State: We have witnesses today and ready to proceed. Defence: We are also ready. Court: Case stood over to later for hearing. Hon. Lady Justice Dr. Winifred Nabisinde. Judge, 19.02.20r8.

'r 9.02.2018: 6.40pm. Accused-Present; Presentation at the Ban Is before Ochan Luganda / Lango Interpreter: State: We are before court for hearing and ready to proceed. Defence: We are also ready. Court: Hearing PWI OGWANC GEOFFREY, M / A, 60 years, Language, English, SWORN:'

- 17) It is clear that the court picked and swore in only one assessor, Akoa Nelson and proceeded to commence hearing with only that assessor. The court heard 2 witnesses for the prosecution and adjourned the case for further hearing to 5'h March 2018. There is no record of what happened on 5'h March 2018. The next record is on the 19th March 2018. No hearing took place. It was adjoumed to 2I't March 2018. On 21" March 2018 the court heard the testimony of PW3 and then held a preliminary hearing, admitting agreed facts, in respect of the medical examination of the victim and appellant, requested for by Detective Corporal Akello Santo dubbed PW4 and Dr Oula Alex, Medical Officer, the examining officer, dubbed PW5; and the charge and caution statement of the appellant made to DAIP Ogwang Julius Peter dubbed PW6. The prosecution then closed its case. - t8] The court found the offence, prima facie, to have been established and put the appellant to his defence. The defence opted for the appellant to remain silent. On l4'h April 2018 the court summed up the evidence and the law to the assessors who were on that day reflected as Akoo Nelson and Aceng Beatrice. The court then fixed the case for reception of the assessor's opinion. - t9] On the 24'h of April 2018 the record reflects as below:

'24t 4t2018 4:llPM. Accused: present Sarah Amony for the state Komakech Victor for the Accused person Ochen J, Interpreter (Lango). State: The case is for assessors' opinion We are ready to receive it. Court: Proceed. Mr. Akoo Neison end Adong Margaret Joint Assessors 0pinion Uganda Vs Wasswa Yasin. [Opinion read out.] Lady Assessor: I concur with the Gentleman Assessor on the opinion.'

- [10] It is evident from the record that the trial started with only one swom assessor and along the way another assessor, Aceng Beatrice, joined the trial. It is not clear at what point this happened. Certainly, it was not on the day the first 2 witnesses testified. Neither was it reflected on the day the third witness testified. It was only reflected when the leamed trial judge was summing up to the assessors. - I I ] The joint assessors' opinion read by the gentleman assessor, Mr Akoo Nelson, was concurred in by Ms Adong Margaret, and the leamed trial judge accepted and acted on the advice ofthese two assessors to convict the appellant. - [2] There is no record of when either Ms Aceng Beatrice or Ms Adong Margaret were admitted as assessors in this case and when they sat in the course of reception of evidence. Neither is there any record of swearing in of these 2 assessors. - [3] Ms Caroline Acio in her submissions before us conceded that the record reflected the above position but that no substantial miscarriage ofjustice was occasioned. She relied on 34 (l) of the Criminal Procedure Code Act and B aruhan a Fodori v U da CACA No. 24 of 1999 (unreported). She prayed that this ground be rejected. - [4] The Supreme Court was faced with a somewhat similar situation in Abdu Komakeqh v Uganda t I 990] UGSC 10. In that case after a preliminary hearing the trialjudge chose 2 assessors and they were swom. The hearing of the case did not take off on that day. It was adjoumed to another date. Subsequently another assessor, without being swom, apparently replaced one of the originally swom in assessor at some point in the trial and the hearing proceeded until it was concluded and determined. On appeal it was contended for the appellant that the trial was a nullity as an unswom assessor had participated in the trial of the case. - [ 5] The court held,

'ln the case before us it is not clear, as we have already pointed out, whether Zankumbi was even sworn in as Assessor or that he was even present when the trial began. Going by the record we are inclined to find that he did not participate in the trial of the appellant. Since Zirumu acted as an Assessor fraudulently, we find that the trial judge sat with only one Assessor throughout the trial. This inegularity is fundamental as it goes to jurisdiction. It has occasioned a miscarriage ofjustice and it is not therefore curable under section Section 137 of the Trial on lndictments Decree. On this ground alone this appeal would succeed.'

- [6] The situation is not different from the case before us. The trial judge sat throughout the hearing of this case with only one swom assessor, contrary to the law, which requires the trial to start with 2 assessors. - <sup>I</sup><sup>I</sup>7] Section 3 ( I ) of the Trial on Indictments Act provides,

'Except as provided by any other written law, all trials before the High Court shall be with the aid ofassessors, the number ofwhom shall be two or more as the court thinks fit.'

[18] Section 65 of the Trial on Indictments Act provides,

'lf the accused person pleads not guilty, or a plea ofnot guilty is entered in accordance with section 62, the court shall (subject to the provisions of section 66 proceed to choose assessors and to try the crse.

[ 9] Section 67 of the Trial on Indictments Act provides,

'At the commencement of the trial and. where the provisions of section 66 are applicable. after the preliminary hearing has been concluded. each assessor shall take an oath impartially to advise the court to the best of his or her knowledge, skill and ability on the issues pending before the court.'

- [20] The forgoing provisions are mandatory in nature. The combined violation of the foregoing provisions ofthe law rendered the trial a mistrial. Section 34 ( I ) of the Criminal Procedure Code Act, cannot save the proceedings in the court below. The court that commenced the taking of evidence was not properly constituted contrary to sections 3,65 and 67 of the Trial on Indictments Act. It had no jurisdiction. It would follow that the resultant proceedings were a nullity. - [21 ] Secondly, Ms Adong Margaret, the second assessor at the rendering of the assessors' opinion did not attend the hearing of this case when evidence was being adduced. She was not present at the summing up of the evidence and the law to the assessors by the trial judge. She came in only at the end of the trial while the assessors were due to give their opinion to the trial judge. She joined in that opinion and the leamed judge acted upon it, accepting their advice to convict the appellant. Ms Margaret Adong was a stranger to the proceedings in which she participated. This was an incurable irregularity for an assessor who had not heard the evidence in the case to render advice to the trial judge. The court was improperly constituted and therefore had no jurisdiction to proceed with the determination of the case against the appellant. - [22] We have no choice but to allow ground 2 ofthe appeal and hold that there was a mistrial. It is unnecessary to consider the other grounds ofappeal. - [23) In light of this decision, it is possible to order a re trial. However, we note that the appellant has been in detention in respect of this offence since 2016, a period of about 7 years to date. This could well amount to serving a sentence of l0 years' imprisonment if a prisoner eamed remission. That may well be the sentence that the appellant would attract were he to be convicted. We do not believe the interests ofjustice would be served by ordering a re-trial in this matter given the period the appellant has spent in detention; and the

inevitable systemic delay for a re trial to take place. The appellant's right to a speedy trial has been severely compromised.

#### **Decision**

This appeal is allowed. The conviction is quashed. The sentence is set aside. $[24]$ The appellant is discharged. We order a stay of prosecution in relation to the charges that were levelled against him in this case. We order the immediate release of the appellant unless he is being lawfully held on other charges.

### **Other Remarks**

Before we take leave of this matter, we note that the preliminary hearing $[25]$ leading to a memorandum of agreed facts was conducted after 3 witnesses had testified. We do not know why it was not conducted prior to the commencement of the hearing in accordance with section 66 of the Trial on Indictments Act. This hearing is preliminary to the trial. We would urge trial judges to follow the steps and order set out in the law in the conduct of trials before them.

Signed, dated and delivered this $\lambda$ day of

Fredrick Egonda-Ntende

**Justice of Appeal**

Catherine Bamugemereire **Justice of Appeal**

Irene Mulyagonja

June

**Justice of Appeal**

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