The Common legal system, a criminal proceeding starts with a police investigation which is aimed at collecting evidence that will prove the defendant guilty. Then an adversarial trial is conducted before either a judge or a jury. The attorneys conduct the trial and try to convince the judge in their favor. The trial is continuous and the evidence against the defendant must be presented by live witnesses in court.
Criminal law is the body of rules and statues which define the conduct which is prohibited by the state/government because it may harm the society/public. It is a welfare that establishes punishment which will be imposed if this law is broken.
The essentials of criminal proceedings are:
1. To bring the accused within the power of the tribunal.
2. Preliminary investigations to ensure the crime is one, which should be prosecuted.
3. Notice to the accused of the offence charged upon arrest accused has to be told why he is being arrested. Notice to give charge sheet with information against hi, for him to respond and to defend himself.
4. Opportunity to prepare for trial, procure witness.
5. A speedy trial. A trial should be conducted as fast as possible because during the course of the trial the accused may be kept in prison as they have been refused bail.
6. Fair trial before an impartial tribunal. Accused is given an opportunity to say something in his defense. Through counsel of his own choice.
7. A right to the review of the case by a suitable appellate tribunal. Right to review if the accused is not happy.
Under our jurisdiction there are 2 ways of review:
1. Review by way of appeal.
2. Review by way of revision.
Criminal proceedings commenced in the name of the state of Uganda and it is tiled Uganda v Accused. In other jurisdiction, such cases are titled People v Accused or R v Accused. And similarly, in a private prosecution it is always the Republic because you institute in the name of the state. The state is treated in all criminal cases as the complainant and it is not necessarily the victim. In law every crime is committed against the state because a crime is defined as a wrong against the society or the state. The state is responsible for the society. The state takes the responsibility to seek redress of the complainant or the victim. The state protects and defends others. The real victim is also the complainant particularly in crimes involving private property and against the person. In all cases the real victim as a complaisant appears as a witness for the prosecution, and therefore the complainant is not a party to the suit. The parties are the republic and the accused. The complainant has no right to appeal only the state can appeal because the complainant is a witness.
Who can institute criminal proceedings?
•State Attorneys: Criminal Proceedings are instituted by the Director of Public Prosecutions (DPP) through officers called state attorneys.
•Government Authorities authorized by the DPP: Powers to institute private prosecutions are granted by the DPP to authorities such as Uganda Revenue Authority (URA), Uganda Wildlife Authority (UWA), Uganda Forestry Authority (UFA) and National Environment Management Authority (NEMA), among others.
•Private Individuals: A private individual may also institute criminal proceedings by making a complaint of the alleged offence to a Magistrate who either has jurisdiction to try or inquire into the alleged offence, or has jurisdiction where the accused person is alleged to reside. However, the DPP has powers to take over such proceedings at any time.
Therefore, in trial procedure Ssekana in his book Criminal Procedure in Uganda elaborates how trial procedure operates in criminal procedure the attorney representing the state, county or municipal government that formally accuses a person of committing a crime is the prosecutor. The person charged with the crime is the defendant. The judge not only ensures that the rights of defendant are respected, but also the Constitutional provision and the statutorily required rights afforded to victims of crime.
1. Arrest – A person is arrested by a law enforcement officer who either sees a crime happen or has a warrant for arrest when probable cause exists that a person committed a crime. When a person is arrested, the person must be brought before a judge for an initial appearance within 24 hours of being arrested or else be released.
2. Initial Appearance – At the initial appearance, the judge determines the defendant’s name and address, informs the defendant of the charges and of the right to remain silent and to have an attorney. The judge appoints an attorney if the defendant cannot afford one and sets the conditions for release from jail.
3. Preliminary Hearing – If a preliminary hearing is held, the judge hears evidence and testimony from witnesses called by the prosecuting attorney and the defendant’s attorney. If the judge determines there is enough evidence to believe the defendant probably committed the crime, the defendant is held for trial in superior court, and an arraignment date is set.
4. Arraignment – At the arraignment, the defendant enters a plea of guilty, not guilty, or no contest (nolo contendere). If the defendant enters a not guilty plea, the judge will set a trial date. If the defendant enters a guilty plea or declares no contest to the charges, the judge will set a date to sentence the defendant for the crime.
5. Trial Opening Statements –; The defendant has the right to a trial in which either a jury or the judge determines guilt. When the court is ready for the trial to begin, each side can make an opening statement. In a criminal case, the prosecuting attorney speaks first.
To begin, the prosecuting attorney gives an overview of the facts that will be presented. The defense attorney may present the same type of opening comment or may save the opening statement until later in the trial when that side of the case begins. Either attorney may decide not to give an opening statement.
Witnesses – The prosecuting attorney begins the case by calling witnesses and asking them questions. This is direct examination.
Witnesses in all trials take an oath or an affirmation that what they say in court is true. All trial evidence, including testimony and physical evidence, such as documents, weapons, or articles of clothing, must be acceptable The judge decides what evidence and testimony are admissible under the rules.
In a criminal trial, the prosecuting attorney presents evidence and witness testimony to try to prove beyond a reasonable doubt that the defendant committed the crime. The defendant’s attorney may present evidence and witnesses to show that the defendant did not commit the crime or to create a reasonable doubt as to the defendant’s guilt. The defendant is considered innocent of the crime charged until proven guilty.
When the prosecution has finished questioning a witness, the defense is allowed to cross-examine the witness on any relevant matter. After cross-examination, the attorney who first called the witness may ask the witness more questions to clarify something touched on in the cross-examination. This is redirect examination. The judge may allow an opportunity for the opposing attorney to re-cross examine.
When the prosecution has called all the witnesses for its side of the case and presented all of its evidence, it rests its case.
At this point, the defendant’s attorney may ask for a judgment of acquittal. This means that the attorney is asking the court to decide the case in the defendant’s favor because the prosecuting attorney did not present enough evidence to prove the case against the defendant. If the judge agrees that there is not enough evidence to rule against the defendant, the judge rules in favor of the defendant, and the case ends.
If a judgment of acquittal is not requested or if the request is denied, the defense may present evidence for its side of the case. The defense attorney often waits until this point in the trial to make an opening statement. The defense may choose not to present evidence, as it is not required to do so. The defendant in a criminal case is not required to prove innocence. The burden is on the prosecution to prove the defendant’s guilt beyond a reasonable doubt.
If the defense does present a case and call witnesses, the same rules and procedures that governed presentation of evidence by the prosecution now apply to evidence presented by the defense including the opportunity for the prosecutor to cross-examine defense witnesses. At the end of the defendant’s case, the prosecutor may present additional information to respond to evidence offered by the defense. Following this, the defense is given another opportunity to present more evidence on the defendant’s behalf.
Closing Arguments – After the prosecution and the defense have presented all of their evidence, each side may make closing arguments. Closing arguments—similar to opening statements—provide an opportunity for the attorneys to address the judge or the jury a final time. The prosecutor speaks first, usually summarizing the evidence that has been presented and highlighting items most beneficial to the prosecution. The defendant’s attorney speaks next. The defense attorney usually summarizes the strongest points of the defendant’s case and points out flaws in the prosecutor’s case. The prosecutor then has one last opportunity to speak.
Appeals – A convicted defendant may appeal. If the death penalty has been imposed, an automatic appeal is filed with the Supreme Court. The Court of Appeals hears appeals in all other criminal cases.
More to that is the fact of Disposal without full trial; Where criminal proceedings are initiated, they may not necessarily lead to full- fledged trial resulting in the judicial determination of the guilt or innocence of the accused as well articulated in the case of Kitata v Uganda It is duty of court of law to conduct full fledge trial of an accused produced before it to ascertain whether the accused is innocent or offender. However depending upon nature of the alleged offence in the interest of justice and also depending on the circumstance prevailing in the criminal case to give a chance to the accused for reformation (or) to avoid abuse of law (or) to save time (or) to avoid a protracted litigation, court may acquit or discharge the Accused in accordance with the law. Following are the provisions that deal with disposal of case without trial.
The essence of Reconciliation is very pivotal in trial; a crime is essentially a wrong against society .therefore any compromise between the accused and the individual victim of the crime should not absolve the accused from the criminal responsibility Reconciliation can be used only for the investigations and prosecutions of the crimes which are prescribed by law. These crimes are as follows: • Crimes of which investigation and prosecution is conditional on a complaint (excluding sexual assault and crimes having the provisions of effective repentance),in the case of Uganda v D Kayathe accused was charged of stealing from a motor vehicle and receiving or retaining stolen property. At trial the complainant told court that he did not want to proceed with the case. The trial court ruled that the proceedings be stayed and the accused be discharged.
The high court on revision held that
a) The proceedings can only stay if the complainant and the accused have reconciled
b)Before the proceeding’s courts should be sure that the complainant has been substantially compensated.
WITHDRAW OF COMPLAINT is also a part of the elements in criminal trail procedure thus it is suffice to note that It doesn't matter whether you do or not. Private citizens do not bring criminal charges. The state does. And in certain kinds of cases, for example, cases of domestic violence, it is very common for people who have made complaints to the police to want to withdraw them and not "press charges. "Prosecutors ignore those kinds of requests. Crimes are offenses against the state, represented by the prosecution, and the prosecution will typically proceed if they think they have enough evidence to convict. If your testimony is required, and you don't want to give it, they will impeach you with your prior statement if you are required as a witness. So, if you make a criminal complaint, expected to be falling through, regardless of your wishes.
Withdraw from Prosecution is another issue that surfaces in trial of criminal prosecution as the law clearly states that Any Public Prosecutor may, with the consent of the Court, [* * *] before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and upon such withdrawal,-
a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences;
b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences.
Article 120 of the 1995 Constitution of Uganda as amended establishes the office of the DPP and under clause (3) of the same, spells out functions, specifically under the same provision, clause (3) (d) mandates the DPP to discontinue criminal proceedings instituted by himself/herself or any other person or authority at any stage before judgment is delivered except that he or she shall not discontinue any proceedings commenced by another person or authority except with the consent of court.
It should be noted that the function of discontinuing criminal proceedings is exclusively exercised by him by virtue of Article 120 (4) (b) of the Constitution. While exercising his powers, in this case withdrawing criminal charges, he should have considered the interest of the public matter, interest of the administration of justice and the need to prevent abuse of legal process as provided for under Article 120 (5) of the constitution. The framers of the constitution provided some kind of immunity or protection to the DPP in the sense that while exercising these functions, he/she is not subjected to any control or direction of any person or authority, thus whatever decision he makes, no one can question not even a court of law as per provisions of Article 120 (6) of the 1995 Constitution.
Summary Trail For Petty Cases
In any case where a person is charged with an offense under the traffic and Road Safety Act or with any other offense under any other written law which the minister or parliament enacted.
Special summons in cases of petty offence — (1) If, in the opinion of a Magistrate taking cognizance of a petty offence, the case may be summarily disposed of under section 260 of The Magistrate’s Courts Act, “the Magistrate shall, except where he is, for reasons to be recorded in, writing, of a contrary opinion, issue summons to the accused requiring him either to appear in person or by pleader before the Magistrate on a specified date, or if he desires to plead guilty to the charge without appearing before the Magistrate, to transmit before the specified date, by post or by messenger to the Magistrate, the said plea in writing and the amount of fine specified in the summons or if he desires to appear by pleader and to plead guilty to the charge through such pleader, to authorize, in writing the pleader to plead guilty to die charge on his behalf and to pay the fine through such pleader…
By the time they get to trial it is suffice to not that Criminal proceedings may be instituted against a person by presenting a Charge Sheet and/or an Indictment in the Chief Magistrates Court and/or High Court respectively. The person against whom criminal proceedings are instituted is referred to as the accused and the person who presents the charge sheet or indictment is referred to as the prosecutor.
A Charge Sheet is a document indicating the offence which the accused is said to have committed and the details surrounding the commission of that offence. It is filed only in the Chief Magistrate Courts.
An Indictment performs the same role as the Charge sheet except that it is filed in the High Court. (Pursuant to the Trial on Indictments Act (Cap 23)
For proceedings instituted in the High Court, it is mandatory to commit the accused to the High Court. The committal proceedings of the accused are conducted in the Chief Magistrates Court following which the accused is sent to the High Court for trial. At the trial, whether in the Chief Magistrates Court or High Court, the offence will be read to the accused after which he/she will be expected to respond (Take Plea)
The accused may plead guilty, not guilty or that he/she has been previously acquitted or pardoned for the offence he/she is being charged with. If the accused pleads guilty, then the judicial officer will record that plea and then proceed to sentence the accused in accordance with the law.
If the accused pleads not guilty, then court will proceed to hear the evidence from the State attorney who is referred to as the prosecutor. After hearing evidence from the prosecution, court will make a ruling as to whether the accused has a case to answer. If court finds that the accused has no case to answer, then he/she will be discharged. If court finds that the accused has a case to answer, then he/she will be required to give his/her defense by giving his/her testimony and/or calling witnesses to testify.
Court will then go ahead to give judgment after hearing the evidence from both sides. If the accused is found not guilty, then he/she will be acquitted. If the accused is found guilty, then court will proceed to hear the accused in mitigation of his sentence where he/she explains to court why court should lessen his sentence. Court will then proceed to give its sentence in accordance with the law.
NB
During the trial of an offense the legal representor can ask for bail which is a temporary release of the accused from prison, in exchange for security given for his/her appearance at a later hearing in Court.
Simple steps to apply for it are ;
a) The accused applies for bail orally in the Chief Magistrates Court.
b) In the High Court, the accused applies by presenting a Notice of motion in court
c) The Notice of Motion must be supported by an affidavit stating clearly the grounds on which the application is based.
d) The application will be served on the prosecutor who then files an affidavit in reply.
e) The application will be heard and court will go ahead to either grant or deny the accused bail.
f) Court may either grant cash or non-cash bail.
Cash bail requires that the accused deposit a specified sum of money in court before he can be released on bail. Under Non cash bail, the accused will be required to pay the specified amount of money in the event that he/she does not appear in court on a date he/she is required in court.
One may apply for bail at any stage of the proceedings before Judgment is passed. The accused should have sureties ready before he/she presents the application for bail. Sureties are people who undertake before court, to present the accused in court on a date that he/she is required.
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