Magino v Uganda (Criminal Application 9 of 2024) [2024] UGSC 49 (31 October 2024)

THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPAI.A CRIMINAL APPLICATION NO. 09 OF 2024 (Arising from Criminal Appeal No. 45 of 2O22) MAGINO JOSEPH:::::::::::::::::::::::::::::::::::::::::::::::APPLICANT VERSUS UGANDA::::::::::::::::::::::::::::::::::::::::::::::::::::::::R.ESPONDENT CORAM: HON. LADY JUSTTCE ELIZABETH MUSOKE, JSC (srNGLE JUSTTCE) RULING OF THE COURT The applicant filed this application in this Court seeking to be released on bail pending the hearing and determination, by this Court, of his appeal - Criminal Appeal No. 45 of 2022. Background The applicant was, on 20th December,2Olg, convicted by the High Court at Kampala (Criminal Division) before Abodo, J of Aggravated Defilement of a minor aged 7 years contrary to Section 129 (3) and 4 (a) of the Penal Code Act, Cap. 120 (2000 Edition of the Laws of Uganda). The High Court in a decision dated 22"d January, 2020 sentenced the applicant to a term of imprisonment of 28 yearst 7 months and 16 days. The applicant appealed to the Court of Appeal against the High Court's decision in respect to both conviction and sentence. In a decision dated 18th December, 2022, the Court of Appeal (Egonda-Ntende, Bamugemereire and Madrama, JJA) confirmed the High Court's decision on conviction but imposed a fresh sentence of 15 years imprisonment after finding that the sentence imposed by the High Court was higher than the applicable range of sentences for Aggravated Defilement and was therefore harsh and excessive. L The applicant was dissatisfied with the decision of the Court of Appeal in respect to conviction and filed an appeal in this Court which was registered as Criminal Appeal No. 45 of 2022. A memorandum of appeal and written submissions were filed for the applicant on 13th December, 2023. However, the applicant's appeal is yet to be set down for hearing. Hence, the present application for bail pending the hearing and determination of that appeal. The main ground on which the applicant relies for his application is existence of exceptional circumstances that warrant his release on bail and he lists them as follows: first, that his appeal in this Court has plausible grounds with high chances of success, and is neither frivolous nor vexatious; secondly, that there is a high likelihood of delay before hearing and determination of his appeal; thirdly, that he has a fixed place of abode within the Court's jurisdiction; fourth, that he has substantial sureties who undertake to ensure that he attends Court for his hearing; flfth, that he will comply with the bail conditions as he did in the High Couft where he was granted bail and never jumped bail until it was cancelled; sixth, that he had a good moral character and was of good standing in society before his conviction; seventh, that the offence for which he was convicted did not involve personal violence; and eighth, that it is in the interests of justice that he be granted bail pending appeal given his current poor health conditions. The applicant filed an affidavit substantiating on the above grounds. Additional affidavits in support of the application were filed by Ms. Nakkazi Margret and Mr. Kamya John Mpaulo, respectively, the mother and father of the applicant and his sureties in this Court. The respondent opposed the application through an affidavit in reply filed by Ms. Ainebyoona Happiness, a Chief State Attorney in the Office of the Director Public Prosecutions. The respondent's general ground of opposition is that the applicant does not prove any exceptional circumstances justifoing his release on bail pending appeal. 2 Representation At the hearing, Mr. Andrew Ssebugwawo appeared for the applicant on Private Brief. Ms. Ainebyoona Happiness, Chief State Attorney in the Office of the Director Public Prosecutions appeared for the respondent. The Court adopted the written submissions filed by the respective counsel prior to the hearing of the application. Applicantt submissions Counsel submitted that this was an approprlate case to grant bail pending appeal because the applicant has demonstrated several factors and considerations recognlzed in several decisions by this Court includlng Arvind Patel vs. Uganda, Crimina! Application No. 1 of 2OO3, David Chandi Jamwa vs. Uganda, Crimina! Application No. 19 of 2019 and Bamutura Henry vs. Uganda, Criminal Application No. 19 of 2O19 (all unreported), as justifuing the release of an applicant on bail pending appeal. Counsel submitted that it has been demonstrated in the applicant's application and accompanying affidavlts that the applicant's appeal in this Court is based on two grounds with prospects of success, the first alleging that the Court of Appeal based its decision to uphold the applicant's conviction on the unsatisfactory evidence of the victim and inconclusive medical evidence, and the second, alleging that the Court of Appeal upheld a conviction which was arrived at by the High Court in violation of the applicanfs right to a fair trial in that it wrongly refused the applicant's request to recall certain prosecution witnesses for cross-examination. Further, counsel submitted that the applicant has demonstrated that he has a fixed place of abode and is of good character, Furthermore, counsel submitted that the applicant's current medical condition is very poor and needs better life-saving attention outside prison. Counsel referred to the affidavits of Ms. Nakkazi and Mr. Kamya showing that the applicant underwent an operation in February, 2024 to address a complication in his stomach which resulted in his colon being placed outside his body. 3 4 Counsel prayed that this Court grants this application and releases the applicant on bail due to the current situation of his life. Respondent's submissions In reply, counsel for the respondent submitted that the applicant has not, in his application and the accompanying affidavits proven exceptional circumstances to warrant his release on bail pending appeal. Counsel submitted that a memorandum of appeal and written submissions have been filed in the appeal by the applicant's counsel and thus the appeal is ready for hearing at the next convenient date for the Court since the Court is fully constituted. Therefore, according to counsel, there is no likelihood of delay of hearing the applicant's appeal. Counsel further submitted that this Court ought to take into account the fact that the applicant is now a convicted criminal, having been convicted for defilement of a very young girl whom he exposed to sexual acts yet he was fit to be the victim's guardian. Counsel also urged this Court to consider that the offence is rampant, and further to consider that the Court of Appeal imposed on the applicant a significant term of imprisonment of 15 years which by its length may tempt the applicant to abscond if granted bail. Consideration of the Application I have carefully studied the present application and the respective affidavits in support and opposition. I have also considered the submissions of the respective counsel and the law and authorities cited. I will begin my analysis by noting that it is now accepted that, under Rule 6 (2) of the Judicature (Supreme Court Rules) Directions, S.I 16-11, this Court has discretionary powers to release an appellant on bail pending the hearing and determination of his/her appeal. The referenced Rule 6 (2) reads as follows: "Subject to subrule (l) of this rule, the institution of an appeal shall not operate to suspend any sentence or to stay execution, but the court may- (a) in any criminal proceedings, where notice of appeal has been given in accordance with rules 56 and 57 of these Rules, order that the aooellant be released on bail ndino the determination of the appeal" It will also be noted that the provisions of the above Rule 6 (2) do not set out the criteria to guide this Court in reaching its decision with respect to an application for bail pending appeal. However, case law sets out the following non-exhaustive relevant guiding factors for determining applications for bail pending appeal: "i) the seriousness of the offence ai) the character of the applicanq iii) whether he/she is a first offender or no$ (iv) the appeal is not frivolous and has a reasonable possibility of success; (v) the possibility of substantial delay in the determination of the appeal. (vi) whether the applicant has complied with bail conditions granted after the applicant's conviction and during the pendency of the appeal. (if any). (vii) grave illness certified by a medical officer of the prison or other institution or place where the appellant is detained as being incapable of adequate treatment while the appellant is in custody. (viii) a certificate of no objection signed by the Director of Public Prosecutions. (ix) the infancy or advanced age ofthe appellant." See: Aruind Patel vs. Uganda, Supreme Court Criminal Application No. 1 of 2OO3 (unreported); and Magombe Joseph Joshua vs. Uganda, Supreme Court Criminal Appeal No. 13 of 2O2O (unreported). I will go into an in-depth analysis of these factors later in this judgment. At this juncture, I will make comments on other considerations I have taken 5 into account in determining this application. I have taken into account the fact that the applicant is currently in prison as a convicted criminal, and is expected to serve a term of imprisonment of 15 years imposed by the Court of Appeal which upheld his conviction by the High Court for Aggravated Defilement. It is presumed that the respective decisions of the two lower Courts were arrived at after correct evaluation of the evidence and proper application of the law to the facts. Therefore, as a convicted criminal, the applicant cannot benefit from the presumption of innocence which is the primary basis for granting bail. Instead, there is a serious expectation from the public for the applicant to stay in prison until he has completed seruing the sentence imposed by the Court of Appeal for the crime he is found to have committed. In the Magombe Joseph Joshua case (supra) this Court stated: "In the instant application, the presumption of innocence is rebutted by the fact that the High Court and the Court of Appeal have already convicted the applicant. This infers that there are factual findings by both Courts, based on the adduced evidence, that he committed the offences he was charged with, thus placing him outside the ambit of the persons envisaged in Article 28 (3) (a) which refers to persons in respect of whom a court of law is yet to make a verdict on allegations against them. Thus a person applying for bail pending appeal must be subjected to a more stringent test than one who is not yet convicted." I agree with the above observations. However, I must also add that, on the other hand, and has been acknowledged in some decisions of this Court, judicial decisions are not infallible, and occasionally, some are found to be erroneous on appeal. I am cognizant that this might well turn out to be the case with the applicant's appeal. I will now turn to consider the guiding factors for applications for bail pending appeal that I listed earlier. In my view, these factors relate to the following three broad criteria, namely: first, the prospects of the appeal, encompassing factors (iv) and (v); secondly, the public interest considerations, addressing factors (i), (ii), (iii) and (vi); and thirdly, other compelling reasons warranting the release of the appellant on bail,rencompassing factors (vii), (viii) and 7 (ix). It is further my view that, in arriving at its decision, this Court ought to carefully consider and balance all the above criteria so as to satisfo itself, on a balance of probabilities, that it is appropriate to release the appellant on bail. Thus, ordinarily, an applicant must satisfy all the three criteria. However, it is my view, that in exceptional cases, the applicant can be released upon satisfying the third criterion alone and demonstrating the existence of a compelling reason justifying his/her release on bail despite failure to satisfo the other two grounds. As will be shown in my subsequent analysis, my decision in the present case hinges on the third criterion. However, I will also make brief comments on the first and second criteria mentioned above. The first criterion relates to the prospects of the appeal and requires the bail applicant to demonstrate that his/her appeal is not frivolous and that it has reasonable prospects of success. In order to satisfli these factors, the applicant has to furnish Court with his/her grounds of appeal and the record of appeal to afford the Court an opportunity to, "examine the grounds with an eye to their general legal plausibility and their foundation in the record." See: R vs. Oland t20l7l L S.C.R 250 at para 44. Where an appeal has reasonable prospects of success, the fact that there will be a substantial delay in hearing gains increased relevance. In the present case, the applicant avers that his appeal is neither frivolous nor vexatious and has reasonable prospects of success. I noted that the applicant produced the judgment of the Court of Appeal and his grounds of appeal therefrom but did not avail the record of proceedings of the two lower Courts to assist this Court to assess the strength of his grounds of appeal. Moreover, one of the applicant's grounds of appeal challenges findings of fact yet it ls common knowledge that this Court rarely departs from the concurrent findings of the Hlgh Court and the Court of Appeal. It is true that the applicant's appeal is not frivolous or vexatious. It ls permitted under Section 5 (1) (a) of the Judicature Act, Cap. 16 (2024 Edition of the Laws of Uganda). However, owing to the applicant's failure to produce the record of appeal, I am unable to find that the grounds pursued in his appeal have a great chance of success as pleaded. I would therefore find that the application does not satisfu the first criterion. The second criterion highlighted above addresses several public interest considerations that a Court must consider in weighing whether it is appropriate to release an appellant on bail, and these include factors (i), (ii), (iii) and (vi) identified above. Under this criterion, the Court must take into account that the public interest requires that convicts remain in prison to serve the sentences imposed for their crimes, and this is especially so for serious crimes. As was stated in the Oland case (supra): "In assessing whether public confidence concerns support a pre-trial detention ...the seriousness of the crime plays an important role. The more serious the crime, the greater the risk that public confidence in the administration of justice will be undermined if the accused is released on bail pending trial. So too for bail pending appeal. In considering the public confidence component...I see no reason why the seriousness of the crime for which a person has been convicted should not play an equal role in assessing the enforceability interest," It is therefore my view that if the applicant for bail pending appeal was convlcted of a serious offence, the public interest will weigh more heavily in him/her remaining incarcerated and being denied bail. Such serious offences include offences involving physical or sexual violence or offences involving public corruption. On the other hand, the public interest may permit the release on bail pending appeal in less serious offences. I agree with the submissions of counsel for the respondent that the applicant was convicted of the grave offence of aggravated defilement which involves sexual violence against young children, a highly reprehensible offence. The other aspects of the public interest considerations criterion relate to the character of the applicant which is relevant for assessing whether he/she will not abscond or commit further offences once released on bail. The Court may also consider other antecedents of the applicant, such as, whether he/she is a first offender, and whether he/she previously complied with the conditions when released on bail in the lower Courts. Under this criterion, the Court will also consider whether the applicant is not a flight risk. 8 In regard to this second criterion, I am willing to accept that the applicant is a first offender and not a habitual criminal, and also to infer from this that he is unlikely to commit other offences when released on bail. I am also willing to accept that the applicant is not a flight risk, since he has a fixed place of abode at his parents' home. I take the latter position despite counsel for the respondentt submission that the applicant is inherently a flight risk due to the substantial term of imprisonment of 15 years that was imposed on him. However, I have balanced this with the fact that the applicant did not abscond when released on bail in the High Court, and consider that he deserves the benefit of doubt that he wlll not abscond this time around as well. Nonetheless, owing to the seriousness and highly reprehensible offence of aggravated for which the applicant was convicted, and the fact that the public interest in such cases weighs in favour of continued incarceration of the applicant, I am also unable to find that the second criterion is satisfied in the present case. With respect to third criterion, the Court will consider the existence of any other compelling reason warranting the release of the applicant on bail. As I said earlier, it is my view, that this criterion may justifu the release of an applicant despite his/her failure to prove the first and second criteria. In the present case, it is averred that the applicant has a serious medical condition that is best managed outside prison. I gathered from reading the report by a Prison Medical Superintendent that on 29th March, 2024,the applicant who was having difficulty passing stool through his anus underwent a surgical operation, in which part of his colon through which he now passes stool instead of the anus, was removed from his body. The Prison Medical Officer wrote in his report, attached as annexture F2 to the applicant's affidavit in support, as follows: "The above mentioned inmate gave complaints of generalized abdominal pain associated with on and off swelling and loss of appetite. On 29 lO2l2O24, his health condition deteroriated; increased painful abdominal distention, projectile vomiting, constipation which culminated into a surgical operation called exploratory laporatory, The 9 sigmoid was resected and brought the distal and proximal segments out as colostomies from where he currently passes stool." According to the alfidavits in support of this application, owing to the applicant's surgical procedure, the applicant now has a tube attached to his colon through which he passes stool into an attached bag. The bags are changed daily. The applicant also requires a special diet. The bags and the food are privately provided by his parents. It was averred in the application and the supporting affidavits that the applicant's medical situation could deteriorate and possibly become life- threatening if the applicant remains in prison. However, there was no evidence as to whether the situation can be corrected if managed outside prison. I am also cognizant that if convicted, the applicant's medical condition will continue to be managed in prison. Nonetheless, the respondent offered no evidence to show that the applicant's condition can be adequately managed from prison in the time being. In my overall assessment, the applicant's condition as described in his affidavit evidence requires special care which he may not easily obtaln if he remains in prison. There is a likelihood that the applicant's condition may be fully rectified if he accesses better medical care outside prison yet the condition may further deteriorate and lead to his death if he remains in prison. In my view, the circumstances of this case demonstrate an exceptional and compelling reason to release the applicant on medical grounds as he awaits one final opportunity for this Court to review his conviction. I therefore find that the third criterion is satisfied In this case. As for the sureties, the applicant presented two sureties, namely Ms. Nakkazi Margret his mother and Mr. Kamya John Mpaulo, his father. Both sureties are residents of Namulonge/Nabalanga Village in Busukuma Parish, Busukuma Sub-County, Nansana Municipality in Wakiso District. The sureties presented their National Identification Card and introduction letters signed by the Village LC1 Chairman and General Secretary. I observed the sureties in Court and am satisfied that they are substantial. However, I observed that the introduction letters for the applicant and the two sureties were drawn in 10 generallzed terms and accordingly well-drafted introduction letters in the format approved by the Registrar shall be filed on the applicant's first reporting date. In conclusion, for the reasons given above, I would allow this application and make the following orders. a) The applicant is hereby released on bail pending the hearing and determination of his appeal by this Court, on his own recognisance. b) The applicant's two sureties, Ms, Nakkazi Margret and Mr. Kamya John Mpaulo, shall execute a recognizance for the applicant's bail for a bond of Ug. Shs. 10,000,000/= not cash. c) The applicant shall report to the Registrar of this Court every first Tuesday of the Month starting on 5th November, 2024, until his appeal is heard and determined by this Court. d) The applicant and his sureties shall present fresh LC1 Introduction Letters, drawn in the format approved by the Registrar, on 5th November, 2024. It is so ordered. J- Dated at Kampala this ..........,3\ day of......C 2024. k \&.U"^r.."U t=, Elizabeth Musoke Justice of the Supreme Court t_0..-( L\94-l ) L,-t ( .-.t lEr d(I? v11