THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA
HOLDEN AT SOROTI
HCT-09-CR-CRIMINAL REVISION NO. 00001/2012
(Arising from Chief Magistrate’s Court Moroto 0089/2012)
1.ANERO SUSAN .........................................................RESPONDENTS
2. AINGA JOY.
BEFORE: HON. JUSTICE MUSOTA STEPHEN.
This is an application for revision brought by way of Notice of motion under the Judicature (criminal Procedure) (application) Rules and ss 34, 48 and 50 of the Criminal Procedure Code Act. It is for orders that:-
(a). The finding and sentence in criminal case No. 897 2012 be reversed.
(b). The accused be retried by a court of competent jurisdiction.
The grounds of application are contained in the supporting affidavit by Nabaasa Carolyn H. Basiima a Principal State Attorney and are briefly that:-
- The respondent’s defence of intoxication was mis-interpreted to mean change of plea from plea of not guilty to a plea of guilty upon which they were subsequently convicted without following proper procedures there by causing an irregularity in the proceedings that led to a mis carriage of justice.
- The sentence of a fine of 300,000/= or 12 months imprisonment in default and compensation of only 600,000/= was not proper considering the gravity of the offence committed and permanent disfigurement inflicted on the victim.
- The imposition of additional suspended sentence imprisonment of 2 years against the respondents was illegal and irregular.
In the affidavit in reply, The 1st Respondent Anero Susan deponed on her behalf and irregularly did so purportedly on behalf of the 2nd respondent and disputed the state averment that the learned trial Magistrate misconstrued the defence of intoxication to mean a plea of guilty. That instead the trial Magistrate judiciously exercised his discretion while arriving at the sentence imposed on the respondents.
That the suspended 2 year sentence is not improper or illegal as it pegs the respondents to be of good character.
Further that the complainant embraced the compensation received from the respondents of shs 1,200,000/=. That court should not be used to perpetuate animosity but rather promoted reconciliation.
At the hearing of this application, Ms Njuki the Resident State Attorney submitted on behalf of the applicant while Mr. Isodo submitted opposing the application on behalf of the respondents. Learned Counsel reiterated the contents of the application and the opposition to the application respectively.
It is provided for under S.48 of the Criminal procedure Code Act that:-
“48 the High Court may call for and examine the record of any
Magistrate’s court for the purpose of satisfying itself as to the
Correctness legality and propriety of any finding, sentence or
order recorded or passed, and as to the regularity of
any proceedings of the Magistrate’s Court”.
Under S.50 of the Criminal procedure code Act, powers of the High Court on revision are outlined. These include enhancing sentence if need be or alter or reverse any order made by the Magistrate’s court. All this has to be done after both the Director of Public Prosecution and the accused have been heard.
Any person aggrieved by any finding sentence or order made or imposed by a Magistrate’s court may petition the High Court to exercise its powers of revision where the Petitioner could have appealed against the finding, sentence or order and has not appealed. In case the application is made by the Director of Public prosecution to make an order to the prejudice of an accused person, the application shall be lodged with the Registrar within 30 days of the imposition of the sentence unless, for good cause shown, the High Court extends time.
When I perused the lower courts record of 18.5.2012 I noted that prosecution closed its case and court made a ruling that each of the accused persons had a case to answer. Each of the accused persons now respondents opted to defend themselves on oath. Defence hearing was fixed on 22.6.2012. On that day, the accused were reminded of the charge against each.
In her defence, A1 (DW.1) Anero Susan had this to say:-
“I am really very sorry and I pray to this honourable court to
forgive me on that fateful day I went to Club Kicks, we danced ,
We drunk, I never intended to hurt Joyce I beg ..............to forgive
me. I think I drunk a lot of booze, I took bond 7. I did not know what
I was doing, I beg I will never do it again”
Thereafter, there is a note, that “Accused I admit liability I committed the offence”.
The court made the following conclusion:-
“Court: The accused having admitted liability at this stage upon
a prima facie case and has opted to make such a
confession on oath case (Sic), finds her guilty thus
convicted in the circumstances (Sic)” .
With regard to A2 Joy Akello the record reads as follows:-
“I beg for forgiveness before God and court. I was
influenced by booze, I did bad to hurt my friend, I will
never repeat this . I am sorry I did bad to fight.”
With the above information court went ahead to say that:-
“The accused has in open court admitted liability, upon
A prima facie case, she is sorry for the offence committed,
I find A2 guilty thus convicted as charged”(Sic)”.
Court found imprisonment inappropriate in order to promote reconciliation. Each convict was thus fined 300,000/= and in default each was to serve 12 months. Each convict was ordered to compensate the victim with shs. 600,000/= within 30 days.
Each convict was given a suspended sentence of 2 years.
“In case of any danger or harm on the victim under un clear
circumstances both convicts to be re arrested and serve
2 years (Sic).
Given the above narrative of what transpired in the trial court, I am in agreement with the submission by the Learned State Attorney that the learned trial Magistrate did not follow the correct procedure when he detected that the accused intended to change plea to a plea of guilty. In fact there is nothing to suggest that the accused were changing plea because the record does not bear that out. A prima facie case had been found. The accused had been put on defence. In their defences, each was pleading intoxication, one of defences in criminal trials. There was therefore no basis for the learned trial Magistrate to have summarily concluded that the defences amounted to changes in pleas.
The trial Magistrate should have continued to hear the defence and at the close of the defences, set down the case for judgment after evaluation of evidence on both sides. What the trial Magistrate did was irregular and can not be allowed to stand.
Regarding sentence of a fine, I would not have interfered with it had the trial been regularly conducted. It is within the discretion of the trial Magistrate to impose a sentence he deems fit. Reasons for sentence of a fine appear justified. Any dissatisfaction on sentence would be handled on appeal and not by revision.
I noted availed intend by the learned trial Magistrate to promote reconciliation although he attempted to do it in a botched trial. He did this by imposing a fine and ordering compensation to the victim in the total sum of 1,200,000/= which the victim gladly accepted. There was therefore no justification for the trial Magistrate to go ahead and award another “suspended sentence of 2 years imprisonment” This sentence though suspended was illegal for it is not provided for in law. The sentence would amount .to double punishment for he had already tried the convicts and set a default sentence of 12 months and awarded compensation. The so called suspended sentence is hereby set aside.
After perusing the record and the circumstances under which this case was concluded, I am unable to order a retrial because it would cause hardship to all the parties involved.
The bottom line is that despite the irregularities the trial Magistrate promoted reconciliation which was embraced by the complainant. The complainant received the compensation money of 1,200,000/= which by the area standards is a lot of money. Refunding the same may be a problem to the complainant. I will take it that this case is settled. No retrial is ordered.