Procedures for Previous Convictions in Criminal Trials, Study notes of Criminal Law

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CHAPTER 23

THE TRIAL ON INDICTMENTS ACT.

Arrangement of Sections.

Section

PART I—J URISDICTION AND MODE OF TRIAL.

1. Jurisdiction of the High Court.
2. Sentencing powers of the High Court.
3. Assessors.
4. Place and date of sessions of the High Court.

PART II—WARRANT OF ARREST.

5. Warrant of arrest.
6. Form, contents and duration of warrant of arrest.
7. Warrants, to whom directed.
8. Execution of warrant directed to a police officer.
9. Notification of substance of warrant.
10. Person arrested to be brought before the court without delay.
11. Where warrant of arrest may be executed.
12. Irregularities in warrant of arrest.
13. Power of court to order prisoner to be brought before it.
14. Release on bail.
15. Refusal to grant bail.
16. Restriction on period of pretrial remand.
17. Power to order sufficient bail.
18. Discharge of sureties.
19. Death of surety.
20. Persons bound by recognisance absconding may be committed.
21. Forfeiture of recognisance.

PART III—I NDICTMENTS.

22. Contents of indictment.
23. Joinder of counts.
24. Joinder of persons.

25. Rules for the framing of indictments.
26. Indictment to be in the name of the Director of Public Prosecutions.
27. Form of indictment.

PART IV—PREVIOUS CONVICTION OR ACQUITTAL.

28. Persons convicted or acquitted not to be tried again for the same offence.
29. Persons may be tried again for a separate offence.
30. Consequences supervening or not known at time of former trial.
31. Where original court was not competent to try subsequent charge.
32. Previous conviction or acquittal, how proved.

PART V—WITNESSES AND EVIDENCE.

33. Summons for witness.
34. Warrant for witness who disobeys summons.
35. Warrant for witness in first instance.
36. Mode of dealing with witness arrested under warrant.
37. Power of court to order prisoner to be brought up for examination.
38. Penalty for nonattendance of witness.
39. Power to summon material witness or examine person present.
40. Evidence to be given on oath.
41. Refractory witness.
42. Reports by Government analyst, ballistic expert and geologist.
43. Competency of accused as witness.
44. Procedure when person charged is the only witness called.

PART VI—PROCEDURE IN CASE OF THE INSANITY OR OTHER INCAPACITY OF AN ACCUSED PERSON.

45. Inquiry by the court as to the insanity of the accused.
46. Procedure when the accused is certified as capable of making his or her defence.
47. Resumption of trial.
48. Special finding of not guilty by reason of insanity.
49. Procedure when the accused does not understand the proceedings.

89. Conviction for being an accessory after the fact.
90. Convictions in respect of charges relating to death of a child.
91. Certain sections of Magistrates Courts Act to apply.
92. Construction of sections 87 to 91.
93. Person charged with misdemeanour not to be acquitted if felony proved.
94. Calling upon the accused.
95. Motion in arrest of judgment.
96. Sentence.
97. Objections cured by verdict.
98. Inquiry may be made prior to passing sentence.

PART VIII—SENTENCES AND THEIR EXECUTION.

99. Sentence of death.
100. Accused to be informed of right to appeal.
101. Authority for detention.
102. Record and report to be sent to Minister.
103. Sentence of death on pregnant woman.
104. Evidence of pregnancy.
105. Sentence of death on person under eighteen years.
106. Warrant in case of sentence of imprisonment.
107. Prisons in which sentences of imprisonment may be served.
108. Mitigation of penalties.
109. Corporal punishment.
110. Fines.
111. Power to allow time to pay fine.
112. Warrant for levy of fine, etc.
113. Commitment.
114. Payment in full after commitment.
115. Part payment after commitment.
116. Sentence of imprisonment in lieu of distress.
117. Objections to attachment.
118. Who may issue a warrant.
119. Discharge of an offender without punishment.
120. Security for coming up for judgment.
121. Sentences fixed by law.
122. Sentences cumulative unless otherwise ordered.
123. Escaped convicts to serve unexpired sentences when recaptured.
124. Police supervision.

PART IX—COSTS , COMPENSATION AND RESTITUTION.

125. Award of costs.
126. Compensation.
127. Recovery of costs and compensation, and imprisonment in default.
128. Power of court to award expenses or compensation out of fine.
129. Property found on accused person.
130. Property stolen.
131. Order for disposal of property regarding which offence committed.

PART X—APPEALS FROM THE HIGH COURT.

132. Appeals to the Court of Appeal from the High Court.
133. Appeal against special finding.

PART XI—CONTROL BY THE DIRECTOR OF PUBLIC PROSECUTIONS.

134. Power to enter nolle prosequi.
135. Exercise of the powers of the Director of Public Prosecutions.
136. Conduct of prosecutions.

PART XII—M ISCELLANEOUS.

137. Court to be open.
138. Obtaining copies or originals of documents in custody of bank.
139. Reversability or alteration of finding, sentence or order by reason of error, etc.
140. Distress not illegal nor distrainer a trespasser for defect or want of form in proceedings.
141. Practice of High Court in its criminal jurisdiction.
142. Copies of proceedings.
143. Record of evidence.

Schedule

Schedule The Assessors Rules. Index

two or more as the court thinks fit.

(2) The rules entitled “The Assessors Rules”, set out in the Schedule to this Act shall have effect in relation to the several matters mentioned in them.

(3) The Minister may, after consultation with the Chief Justice, by statutory instrument, amend the Assessors Rules, except rules 2 and 9 of those rules.

4. Place and date of sessions of the High Court.

(1) For the exercise of its original criminal jurisdiction, the High Court shall hold sittings at such places and on such days as the Chief Justice or the judge who is to preside may direct.

(2) The chief registrar of the High Court shall ordinarily give notice beforehand of all such sittings.

PART II—WARRANT OF ARREST.

5. Warrant of arrest.

The High Court may issue a warrant of arrest at any time to secure the attendance of the accused person.

6. Form, contents and duration of warrant of arrest.

(1) Every warrant of arrest shall be under the hand of the judge issuing it and shall bear the seal of the High Court.

(2) Every warrant of arrest shall state shortly the offence with which the person against whom it is issued is indicted and shall name or otherwise describe that person, and it shall order the person or persons to whom it is directed to apprehend the person against whom it is issued and bring him or her before the High Court to answer to the indictment mentioned in it and to be further dealt with according to law.

(3) Every warrant of arrest shall remain in force until it is executed or until it is cancelled by the court.

7. Warrants, to whom directed.

(1) A warrant of arrest may be directed to one or more police officers or chiefs named in it or generally to all police officers or chiefs; except that the judge issuing the warrant may, if its immediate execution is necessary and no police officer or chief is immediately available, direct it to any other person, and that person shall execute the warrant.

(2) When a warrant is directed to more officers or persons than one, it may be executed by all or by any one or more of them.

8. Execution of warrant directed to a police officer.

A warrant directed to any police officer may also be executed by any other police officer whose name is endorsed upon the warrant by the officer to whom it is directed or endorsed, and similarly a warrant directed to any chief may be executed by any other chief whose name is endorsed on the warrant by the chief to whom it was directed or endorsed.

9. Notification of substance of warrant.

The police officer or other person executing a warrant of arrest shall notify the substance of the warrant to the person to be arrested and, if so required, shall show him or her the warrant.

10. Person arrested to be brought before the court without delay.

The police officer or other person executing a warrant of arrest shall, without unnecessary delay, bring the person arrested before the High Court.

11. Where warrant of arrest may be executed.

A warrant of arrest may be executed at any place in Uganda.

12. Irregularities in warrant of arrest.

Any irregularity or defect in the substance or form of a warrant of arrest, and any variance between it and the indictment, or between either and the evidence produced on the part of the prosecution at any trial, shall not affect the validity of any proceedings at or subsequent to the hearing of the case.

(c) an offence under the Firearms Act punishable by sentence of imprisonment of not less than ten years; (d) abuse of office contrary to section 87 of the Penal Code Act; (e) rape, contrary to section 123 of the Penal Code Act and defilement contrary to sections 129 and 130 of the Penal Code Act; (f) embezzlement, contrary to section 268 of the Penal Code Act; (g) causing financial loss, contrary to section 269 of the Penal Code Act; (h) corruption, contrary to section 2 of the Prevention of Corruption Act; (i) bribery of a member of a public body, contrary to section 5 of the Prevention of Corruption Act; and (j) any other offence in respect of which a magistrates’s court has no jurisdiction to grant bail.

(3) In this section, “exceptional circumstances” means any of the following— (a) grave illness certified by a medical officer of the prison or other institution or place where the accused is detained as being incapable of adequate medical treatment while the accused is in custody; (b) a certificate of no objection signed by the Director of Public Prosecutions; or (c) the infancy or advanced age of the accused.

(4) In considering whether or not the accused is likely to abscond, the court may take into account the following factors— (a) whether the accused has a fixed abode within the jurisdiction of the court or is ordinarily resident outside Uganda; (b) whether the accused has sound securities within the jurisdiction to undertake that the accused shall comply with the conditions of his or her bail; (c) whether the accused has on a previous occasion when released on bail failed to comply with the conditions of his or her bail; and (d) whether there are other charges pending against the accused.

16. Restriction on period of pretrial remand.

If an accused person has been remanded in custody before the commencement of his or her trial—

(a) in respect of any offence punishable by death, for a continuous period exceeding four hundred and eighty days; or (b) in respect of any other offence, for a continuous period exceeding two hundred and forty days, the judge before whom he or she first appears after the expiration of the relevant period shall release him or her on bail on his or her own recognisance, notwithstanding that he or she is accused of an offence referred to in section 15(1), unless— (c) he or she has, prior to the expiration of that period, been committed to the High Court for trial; or (d) the judge is satisfied that it is for the protection of the public that he or she should not be released from custody.

17. Power to order sufficient bail.

If, through mistake, fraud or otherwise, insufficient sureties have been accepted, or if they afterwards become insufficient, the High Court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him or her to find sufficient sureties, and on his or her failing so to do may commit him or her to prison.

18. Discharge of sureties.

(1) All or any of the sureties for the appearance and attendance of a person released on bail may at any time apply to the High Court to discharge the bond either wholly or so far as it relates to the applicant or applicants.

(2) On such application being made, the court shall issue a warrant of arrest directing that the person released be brought before it.

(3) On the appearance of that person pursuant to the warrant, or on his or her voluntary surrender, the court shall direct the bond to be discharged either wholly or so far as it relates to the applicant or applicants, and shall call upon that person to find other sufficient sureties, and if he or she fails to do so may commit him or her to prison.

19. Death of surety.

Where a surety to a bond dies before the bond is forfeited, his or her estate shall be discharged from all liability in respect of the bond, but the party who gave the bond may be required to find a new surety.

PART III—I NDICTMENTS.

22. Contents of indictment.

Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.

23. Joinder of counts.

(1) Any offences, whether felonies or misdemeanours, may be charged together in the same indictment if the offences charged are founded on the same facts or form or are a part of a series of offences of the same or a similar character.

(2) Where more than one offence is charged in an indictment, a description of each offence so charged shall be set out in a separate paragraph of the indictment called a count.

24. Joinder of persons.

The following persons may be joined in one indictment and may be tried together— (a) persons accused of the same offence committed in the course of the same transaction; (b) persons accused of an offence and persons accused of abetment or of an attempt to commit that offence; (c) 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 Act or of any other written law) committed by them jointly within a period of twelve months; (d) persons accused of different offences committed in the course of the same transaction; (e) persons accused of any offence under Chapters XXV to XXIX inclusive of the Penal Code Act and persons accused of receiving or retaining property, possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit either of the last-named offences;

(f) persons accused of any offence relating to counterfeit coin under Chapter XXXV of the Penal Code Act, and persons accused of any other offence under that chapter relating to the same coin, or of abetment of, or attempting to commit, any such offence.

25. Rules for the framing of indictments.

The following provisions shall apply to all indictments and, notwithstanding any rule of law or practice, an indictment shall, subject to this Act, not be open to objection in respect of its form or contents if it is framed in accordance with this Act— (a) a count of an indictment shall commence with a statement of the offence charged, called the statement of offence; (b) the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence, and it shall contain a reference to the section of the enactment creating the offence; (c) after the statement of the offence, particulars of that offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary; but where any written law limits the particulars of an offence which are required to be given in an indictment, nothing in this paragraph shall require any more particulars to be given than those so required; (d) where an indictment contains more than one count, the counts shall be numbered consecutively; (e) where an enactment constituting an offence states the offence to be the doing or the omission to do any one of any different acts in the alternative, or the doing or the omission to do any act in any one of any different capacities, or with any one of different intentions, or states any part of the offence in the alternative, the acts, omissions, capacities or intentions, or other matters stated in the alternative in the enactment, may be stated in the alternative in the count charging the offence; (f) it shall not be necessary, in any count charging an offence constituted by an enactment, to negative any exception or exemption from, or qualification to, the operation of the enactment creating the offence; (g) the description of property in an indictment shall be in ordinary language and such as to indicate with reasonable clearness the property referred to; and if the property is so described, it shall

name of the person not being known, or for any other reason, it is impracticable to give such a description or designation, the description or designation shall be given as is reasonably practicable in the circumstances, or the person may be described as “a person unknown”; (m) where it is necessary to refer to any document or instrument in an indictment, it shall be sufficient to describe it by any name or designation by which it is usually known, or by the purport of the document or instrument, without setting out any copy of it; (n) subject to any other provisions of this section, it shall be sufficient to describe any place, time, thing, matter, act or omission whatsoever to which it is necessary to refer in any indictment in ordinary language in such a manner as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to; (o) it shall not be necessary in stating any intent to defraud, deceive or injure, to state an intent to defraud, deceive or injure any particular person, where the enactment creating the offence does not make an intent to defraud, deceive or injure a particular person an essential ingredient of the offence; (p) where a previous conviction of an offence is averred in an indictment, it shall be averred at the end of the indictment by means of a statement that the accused person has been previously convicted of that offence at a certain time and place without stating the particulars of the offence; (q) figures and abbreviations may be used for expressing anything which is commonly expressed by figures and abbreviations.

26. Indictment to be in the name of the Director of Public Prosecutions.

All indictments shall be in the name of and, subject to section 135, signed by the Director of Public Prosecutions.

27. Form of indictment.

(1) Every indictment shall bear the date of the day when it is signed and, with such modifications as shall be necessary to adapt it to the circumstances of each case, may commence in the following form—

“In the High Court of Uganda at ______________________ the ______ day of ______________, 20 ____, at the sessions holden at ____________________________________ on the ______ day of _______________, 20 ____, the court is informed by the Director of Public Prosecutions that _____________________ is charged with the following offence (or offences)”.

(2) The registrar of the High Court shall give the accused person and the Director of Public Prosecutions reasonable notice, not being less than fourteen days, of the date of the trial.

PART IV—PREVIOUS CONVICTION OR ACQUITTAL.

28. Persons convicted or acquitted not to be tried again for the same offence.

A person who has been once tried by a court of competent jurisdiction for an offence and convicted or acquitted of that offence shall, while the conviction or acquittal has not been reversed or set aside, not be liable to be tried again on the same facts for the same offence.

29. Persons may be tried again for a separate offence.

A person convicted or acquitted of any offence may afterwards be tried for any other offence with which he or she might have been charged on the former trial under section 23(1).

30. Consequences supervening or not known at time of former trial.

A person convicted or acquitted of any act causing consequences which together with that act constitute a different offence from that for which that person was convicted or acquitted may be afterwards tried for that last- mentioned offence, if the consequences had not happened or were not known to the court to have happened at the time when he or she was acquitted or convicted.

31. Where original court was not competent to try subsequent charge.

A person convicted or acquitted of any offence constituted by any acts may, notwithstanding the conviction or acquittal, be subsequently charged with and tried for any other offence constituted by the same acts which he or she

documents, writings or things in his or her possession or power which may be specified or otherwise sufficiently described in the summons.

(2) Any exhibit produced before the court may be retained until thirty days after the conclusion of the trial at which it was produced, and in the event of an appeal for such further period as the court to which the appeal is made shall direct.

(3) Nothing in this section shall be deemed to affect section 122 or 123 of the Evidence Act.

34. Warrant for witness who disobeys summons.

If, without sufficient excuse, a witness does not appear in obedience to the summons, the High Court, on proof of the proper service of the summons a reasonable time before, may issue a warrant to bring him or her before the court at such time and place as shall be specified in the warrant.

35. Warrant for witness in first instance.

If the High Court is satisfied by evidence on oath that the person will not attend unless compelled to do so, it may at once issue a warrant for the arrest and production of the witness before the court at a time and place to be specified in the warrant.

36. Mode of dealing with witness arrested under warrant.

When any witness is arrested under a warrant, the High Court may, on his or her furnishing security by recognisance to the satisfaction of the court for his or her appearance at the hearing of the case, order him or her to be released from custody, or shall on his or her failing to furnish the security, order him or her to be detained for production at the hearing.

37. Power of court to order prisoner to be brought up for examination.

(1) If the High Court is desirous of examining as a witness, in any case pending before it, any person confined in any prison, it may issue an order to the officer in charge of that prison requiring him or her to bring the prisoner in proper custody, at a time to be named in the order, before the court for examination.

(2) The officer so in charge, on receipt of the order, shall act in accordance with it and shall provide for the safe custody of the prisoner during his or her absence from the prison for the purpose set forth in subsection (1).

38. Penalty for nonattendance of witness.

(1) Any person summoned to attend as a witness who, without lawful excuse, fails to attend as required by the summons, or who, having attended, departs without having obtained the permission of the High Court, or fails to attend after adjournment of the court after being ordered to attend, is liable by order of the court to a fine not exceeding four hundred shillings.

(2) Such fine shall be levied by attachment and sale of any movable property belonging to the witness.

(3) In default of recovery of the fine by attachment and sale, the witness may, by order of the court, be imprisoned as a civil prisoner for fifteen days unless the fine is paid before the end of that period.

39. Power to summon material witness or examine person present.

(1) The High Court may, at any stage of any trial under this Act, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and reexamine any person already examined, and the court shall summon and examine or recall and reexamine any such person if his or her evidence appears to it essential to the just decision of the case.

(2) The advocate for the prosecution or the defendant or his or her advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time, if any, as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of any such person as a witness.

40. Evidence to be given on oath.

(1) Every witness in a criminal cause or matter before the High Court shall be examined upon oath, and the court shall have full power and authority to administer the usual oath.