s.168 MCA provides for the
preliminary proceedings in cases to be tried by the high court. (these are
cases which carry a maximum penalty of death)
under s.168 (1) MCA, when a
person is charged in a magistrate’s court with an offence to be tried by the
high court, the DPP will be required to file in the magistrate’s court an indictment
and a summary of the case signed by him or her or by an officer authorized by
him or her in that behalf acting in accordance with the instructions.
s.168(2) MCA, the summary of
the case shall contain such particulars as are necessary to give the accused
person reasonable information as to the nature of the offence with which he or
she is charged
s.168(3) MCA, when a person
charged with an offence to be tried by the high court appears before a magistrate, and the DPP has complied with
subsection (1), the magistrate shall-
a)
give
the accused a copy of the indictment together with the summary of the case
b)
read
out the indictment and the summary of the case and explain to the accused
person the nature of the accusation against him or her in a language he or she
understands and inform him or her that he or she is not required to plead to
the indictment
c)
commit
the accused person for trial by the high court and transmit to the registrar of
the high court copies of the indictment and summary of the case
168(4) if the person
committed is on bail granted by any court, without prejudice to his or her
right to apply for bail, the bail shall lapse and the magistrate shall remand
him or her in custody pending his or trial.
It should be noted
that under s.169, it is within the discretion of the DPP to decide which
offences are to be proceeded with under section 168 for trial before the high
court or to be tried by a magistrate’s court. The DPP can have a case that
falls within the jurisdiction of the magistrate’s court committed to the high
court.
After the person is
committed to the high court for his trial, the procedure for trial is almost
similar to that of the magistrate’s courts except for a few differences.
The provisions
relating to the trial procedure in the high court are found under s.60-81 of
the TIA and s.83 of the TIA.
Briefly the
procedure is as follows;
s. 60 TIA, the
indictment shall be read out to the accused by the chief registrar or other
officer of the court and shall be explained and interpreted where need for
interpretation arises. The accused will then be required to plead to the
indictment instantly.
The accused may at
this stage plead that he has been previously convicted or acquitted as the case
may be, of the same offence or that he or she has obtained the president’s
pardon for his or her offence. S.61 TIA, if the pleas are denied by the
prosecution, the court shall go ahead to determine whether the plea is true in
fact and if the court finds that the plea is false, the accused shall be
required to plead to the indictment.
If the accused
person refuses to plead and just stands mute, or fails to answer directly to
the indictment, the court shall if it thinks fit, enter a plea of not guilty on
behalf of the accused and such plea shall have the same force as if the accused
person had actually pleaded not guilty.
S.62 TIA
If the accused
pleads guilty, the plea shall be recorded and he or she may be convicted on it.
Proceedings after a
plea of not guilty.
If the accused
pleads not guilty or a plea of not guilty is entered in accordance with s.62,
the court shall subject to the provisions of section 66 proceed to choose
assessors and try the case. S. 65 TIA
Where the accused
pleads not guilty, the court shall as soon as is convenient hold a preliminary
hearing in open court in the presence of the accused and his advocate and the
advocate for the prosecution to consider such matters as will promote a fair
and expeditious trial. S. 66 TIA. At the preliminary hearing, the parties shall
agree on the facts, issues, documents and any other matter and the matters
agreed shall be reduced into writing in what is called a memorandum of matters
agreed which will be read out to the accused in the presence of his advocate.
At the commencement
of the trial and 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. S.
67 TIA
The accused person
or his or her advocate or the prosecutor may before the assessor is sworn,
challenge the assessor for cause on any of the following grounds; presumed or
actual partiality, personal cause such as infancy, old age, deafness, blindness
or infirmity, his or her character- has been convicted of an offence, his or
her inability to adequately understand the language of the court. S.68 TIA
After the assessors
have been chosen and sworn in, the prosecution shall open its case against the
accused person and shall call witnesses and adduce evidence in support of the
indictment. S. 71 TIA.
The witnesses called
by t he prosecution shall then be subjected to cross examination by the accused
person or his or her advocate and to re examination by the advocate for the
prosecution. S. 72 TIA.
At the close of the
case for the prosecution, the court if it considers that there is no sufficient
evidence that the accused committed the offence, shall after hearing the
advocate for the prosecution and the defence, record a finding of not guilty.
S. 73(1) TIA.
However if the court
finds that there is sufficient evidence that the accused committed the offence,
it shall inform the accused of his right
to give evidence on his or her own behalf, to make an un sworn statement, to
call witnesses in his or her defence. S.73(2) TIA. The court shall then ask the
accused or his advocate if he wishes to exercise any of the rights under the
paragraphs and his answer shall be recorded. If the accused indicates that he
doesn’t wish to exercise any of his rights under the section, the court shall
invite the advocate for the prosecution to sum up its case for the prosecution.
The accused person
will then open his case, stating the facts or law on which he intends to rely
and making such comments on the evidence for the prosecution and the accused
person may give evidence on his behalf or make an unsworn statement. The
accused or his advocate will then examine its witnesses, if any and after their
cross examination and re examination if any, may sum up his or her case. S. 74(1)
TIA.
If the accused
person adduces evidence that introduces a new matter, the court may allow the
prosecution to adduce evidence in reply to contradict that matter s.76 TIA
When the case on
both sides is closed, the judge shall sum up the law and the evidence in the
case to the assessors and shall require each of the assessors to state his or
her opinion orally and shall record each such opinion. The judge sja;; take a
note of his or her summing up to the assessors. S.82 TIA.
The judge shall then
give his or her judgment, but in so doing shall not be bound to conform to the
opinions of the assessors. S. 82(2) TIA
Where the judge
doesn’t conform with the opinions of the majority of the assessors, he or she
shall state his or her reasons for departing from their opinions in his or her
judgment. S.82 (3) TIA
If the accused
person is convicted, the judge shall pass on him or her according to the law.
S. 82(5) TIA
If the accused is
acquitted, he or she shall be immediately discharged from custody unless he or
she is acquitted by reason of insanity. S.82 (6) TIA.
The judgment in
every trial in the high court shall be pronounced, or substance of the judgment
shall be explained, in open court either immediately after the termination of
the trial or at some subsequent time, of which notice shall be given to the
parties and their advocates. S.85 TIA.
The accused must be
present at the time of delivering the judgment and if in custody shall be
brought up. S.85 (2) TIA.
S.100 TIA, if the
accused is sentenced to death, the court shall inform him of her of the period
within which , if he or she wishes to appeal should be preferred.
Under section 40(3)under this section of
the a viodia has to be conducted for the
case of a young child to see to it whether they under stand the nature of the
proceeding the essence of telling the truth on oath.
In the case of
kibaganyi on the issue of a child of tender years
In francisco
matovu in this case viodia has to be done and also the evidence must be
collaborated.
In r v hariss
evidence of a young child is not sufficient collaboration.
It is a common
practice of court and according to the courts requirements that evidence that
evidence of the witnesses should be on oath e,.g in the case of wilken the
witnesses did not swear in.
In the case of
Ndilagu it was noticed that one of the assessors had not sworn in and
allegations of him being a brother to the .
In the case of
kasule the judge is expected to sum up, directing the assessor’s on matters of law.
In the case of
woolington v dpp in this case it was observed that the burden of proof is with
the and he s the one required to prove
beyond reasonable doubt. This is in accordance with with section 101 of the
evidence Act.
In the case of in espilito wasswa it is a duty of court to direct whether there is a case to answer
before calling the defence.
Section 41 this
section basically is n giving evidence on oath.
In the case of a kaku it sould be a fine or imprisonment and the following are the x sections of consideation.110 .1 tia 181 tia,188 tia
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