High court dismisses appeal

Saturday December 19 2020
review02pix
By Sylvester Onzivua


The Director of Public Prosecutions, in 2014, filed an appeal to the Criminal Division of High Court of Uganda at Kampala challenging the decision by the Chief Magistrate’s Court of Buganda Road to acquit Dr Edward Tamale Ssali. 

Dr Tamale had been jointly charged with an anaesthetist for causing the death of a patient by rash or negligent act. Dr Tamale was the patient’s primary doctor and the proprietor of the hospital where the patient died. It was alleged that the anesthetist wrongly inserted the tube to supply oxygen to the patient during the operation. The patient died shortly after the commencement of the operation.

Prosecution’s evidence
The following was the gist of the prosecution’s evidence;
• The post-mortem report showed that the patient died at the beginning of the operation and there was half a litre of blood in her stomach at time of the post-mortem examination. The only explanation for this blood in the patient’s stomach was that the tube to supply her with oxygen was wrongly and negligently inserted into her oesophagus thereby depriving her of oxygen. 
• The Medical Council that independently investigated this death also concluded that the patient died due to lack of oxygen.
• The doctor and anaesthetist under oath before the Medical Council admitted that the tube had been wrongly inserted into the patient’s oesophagus.
• The surgeon who was present when the patient died attributed the patient’s death to a wrongly inserted tube.
• The surgeon who operated on the patient was not registered by the Medical Council to practice medicine in Uganda
The trial court however ruled that the evidence the prosecution adduced was inadequate to convict the doctor and anaesthetist. The court acquitted the two but the prosecution appealed the judgment.  
Grounds of appeal
There were three key issues that the prosecution raised in the appeal in which the trial court was faulted. In the judgment the trial court ruled that
• The cause of death was not established beyond reasonable doubt. 
• The evidence and the report of the Uganda Medical and Dental Practitioners could not be relied upon by court.
• The explanation of the surgeon could not be relied upon as he was supposed to be a co-accused. 
 
Prosecution submitted to the appellant court that the trial court erred in law and in fact when the court failed to correctly evaluate the evidence and subsequently came to the wrong conclusion which occasioned a gross miscarriage of justice. 

Prosecution also noted with concern that the trial court totally ignored the fact the surgeon who operated on the patient occasioned a crime as he had no legal mandate to practice medicine in the country.

The duty of the appellate court
It is settled in law that the first appellate court has a duty to review the evidence of the case and to reconsider the materials before the trial court.

 The appellant court must then make up its own mind after carefully weighing and considering the judgment of the trial court.  

Advertisement

When the question arises as to which witness should be believed rather than another, and that question turns on manner and demeanour of the witness, the appellate court must be guided by the impression made on the trial judge who saw the witness. 

However, there may be other circumstances quite apart from manner and demeanour, which may show whether a statement is credible or not which may warrant a court in differing from the judgment, even on a question of fact turning on the credibility of a witness which the appellate court has not seen.

Principles of Criminal Law
The appellate court is also guided by the principle that each accused person is presumed innocent until the contrary is proved and the prosecution, throughout the trial, has the burden of proof. The prosecution has a duty to adduce sufficient evidence to prove all essential elements of the offence in the charge sheet.

The degree of proof of evidence in a criminal trial is well settled. It needs not to reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond any shadow of doubt.

The law on rash or negligent act
The Penal Code Act states that “Any person who, by any rash or negligent act, not amounting to manslaughter, causes the death of another person is liable to imprisonment for a term not exceeding seven years or a fine not exceeding seventy thousand shillings or to both such imprisonment and fine.
The essential ingredients of the offence that must be proved by the prosecution to secure a conviction are;
• The death of a person.
• That a rash or negligent act caused the death of the deceased. 
• The accused persons occasioned or participated in or carried out the rash or negligent act complained of.
To the appellant court the fact of the patient’s death was not contested and two of the defense witnesses corroborated this fact. Prosecution therefore proved beyond reasonable doubt the death of the patient that occurred on 14th October 2010 at Women’s Hospital International at Bukoto, Kampala.

 Disclaimer:  This article is based on a ruling that the Uganda Medical and Dental Council availed and submitted in an open Court of Law                                                    

To be continued
 

Advertisement