The High Court in Kampala has rejected an appeal from Rosemary Namubiru, who was convicted in May 2014 for negligently exposing a child to HIV during a needlestick injury.
However, Justice Rugadya Atwooki found that her original three year sentence was excessive and ordered her released after serving ten months.
The appeal arose from a decision of the Buganda Road Court Chief Magistrate, Olive Kazaarwe Mukwaya in which the accused nurse was convicted of the offences of doing a negligent act likely to spread infection of disease. The High Court held that the evidence the trial magistrate used to convict the appellant was truthful and was corroborated by the nurse’s testimony.
The High Court in Kampala has rejected an appeal from Rosemary Namubiru, who was convicted in May 2014 for negligently exposing a child to HIV during a needlestick injury.
However, Justice Rugadya Atwooki found that her original three year sentence was excessive and ordered her released after serving ten months.
The appeal arose from a decision of the Buganda Road Court Chief Magistrate, Olive Kazaarwe Mukwaya in which the accused nurse was convicted of the offences of doing a negligent act likely to spread infection of disease. The High Court held that the evidence the trial magistrate used to convict the appellant was truthful and was corroborated by the nurse’s testimony.
The High Court in Kampala has rejected an appeal from Rosemary Namubiru, who was convicted in May 2014 for negligently exposing a child to HIV during a needlestick injury.
However, Justice Rugadya Atwooki found that her original three year sentence was excessive and ordered her released after serving ten months.
The appeal arose from a decision of the Buganda Road Court Chief Magistrate, Olive Kazaarwe Mukwaya in which the accused nurse was convicted of the offences of doing a negligent act likely to spread infection of disease. The High Court held that the evidence the trial magistrate used to convict the appellant was truthful and was corroborated by the nurse’s testimony.
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA
HCT-00-CR-CN—0050-2014
(Arising from Buganda Road Court Crim, Case No. 23 of 2014)
APPELLANT
VERSUS
-RESPONDENT
BEFORE: THE HON. MR. JUSTICE RUGADYA ATWOKI
JUDGMENT
‘This is an appeal arising from the decision of the Chief Magistrate at Buganda Road Court in
which the appellant herein Rosemary Namubiru was charged with und convicted of the offence
of doing a negligent act likely to spread infection of disease contrary to Section 171 of the Penal
Code Act, She was sentenced to imprisonment for three years,
‘The particulars of the offence which the appellant was charged with were set out in the charge
sheet as follows:
‘Namubiru Rosemary, On the 7th day of January 2014 at Victoria Medical Centre
Lumumba Avenue in Kampala District, Unlawfully and Negligently Injected Mushabe
Mathew With « Cannula Contaminated With Her blood when she knew or had reasons (0
believe that this could likely spread the infection of HIV, a disease dangerous to life."
‘The background from which the appeal arises as accepted by the trial court is thus: The appellant.
was a nurse at Vietoria Clinic in Kampala. On 7 January 2013 one Ruth Ankunda Mushabe
brought her 2 years and 10 months old child Mathew Mushabe, the vietim herein to the said
Victoria Clinic for further treatment. The doctor prescribed a course of treatment which included
ssiving the patient antibioties intravenously.
‘The appellant undertook to do this as was in her line of duty. She made the requisite preparations
and when the mother brought in the young man Mushabe Mathew, he was agitated at the sizht ofinjections and started crying. The mother held the arm where a cannular was to be inserted. In
the process of inserting the cannular into the hand of Mathew, the appellant pricked herself with
the said cannular and blood started flowing from her injured index finger. She put the cannular
back on the tray and administered treatment on her injured finger. She thereafter removed the
annular from the tray and inserted it into the vein of Mathew.
When the appellant was asked why she was re using a contaminated cannular, she responded that
she had just secured the vein at the first attempt and should not therefore be disturbed. As the
young man Mathew continued struggling, the cannular was coming out and his hand was starting
to swell. At this point another nurse came in and the appellant told her to continue treating
‘Mathew as she was going out for her lunch.
‘The mother got concemed that the same cannular was used on her son when it had been
contaminated with the blood of the nurse, the appellant. The second nurse removed the
contaminated eannular and using another one, she fixed it on another arm of Mathew and the
‘weatment proceeded to the end, The mother immediately thereafter reported the incident to the
management of the clinic, and upon confrontation, the appellant stated that the pricking of her
finger was accidental, Matters might have ended there, but upon asking the appellant to take a
blood test for HIV, it was discovered that she was HIV positive. Matters were reported to the
police hence these charges.
The appellant appealed to this court on the following grounds;
1. The Learned Trial Chief Magistrate erred in law and fact when she held that the
appellant was guilty of the offence charged.
2. The Learned Trial Chief Magistrate erred in law and fact when she failed to properly
evaluate the evidence on record thus occasioning a miscarriage of justice.
3. ‘The Leatned Trial Chief Magistrate erred in law and fact in convicting the appellant
con a duplex charge thus occasioning a miscarriage of justice.
4. ‘The Leamed Trial Chief Magistrate erred in law when she shifted the burden of proof
to the appellant.5. The Learned Trial Chief Magistrate erred in law and fact when she failed to consider
the grave inconsistencies in the prosecution's case thus occasioning a miscarriage of
justice.
6. The learned Trial Chief Magistrate erred in law and fact when she
mposed a sentence
that was disproportionate to the facts and circumstances of the ease
At the hearing of the appeal the appellant was represented by Ladislas Rwakafuzi assisted by
Albert Kyeyune and Paul Mukiibi. ‘The State was represented by Biira Peace Abwoli, State
Attorney, together with Ainebyona Happiness, State Attomey and Barbara Masinde, State
Attorney.
In des
ng with this appeal, I will start with the 3" ground of appeal and follow that up with the
evaluation of evidence in the 2°, 4" and 5 grounds. 1 will end with the complaint about the
senteney
the 6" ground of appeal. The complaint in the 1 ground of appeal is the reason for
the appeal. It is not a ground of appeal.
It is the duty of a 1" appellate court to re-evaluate all the evidence on record and make its own
findings of fact on the issues while giving allowance to the fuct that it did not see the witnesses
as they testified, before it can decide whether the decision of the trial court can be supported. See
Kifamunte Henry ». Uganda $C. Ct. App. No. 10 of 1997.
Duplex charge
The complaint in the 3 ground of appeal was thal the appellant was tried and convicted upon
defective charge sheet. The provision in section 171 of the Penal Code Act reads ‘unlawfully or
negligently..", while the charge sheet read ‘ unlawfully and negligently. (emphasis added). It
‘was argued that the law sets out to different offences under section 171, one of them involving
an unlawful act, and the second one involving @ negligent act. To add the two offences together
made the charge duplex and therefore defective.
I noted that this complai
wt was brought out in final submissions from thew bar at the trial stage.
‘That was not proper. An objection to a charge sheet for duplicity or indeed for any other defect
‘ought to be brought out at the earliest opportunity, as soon as the trial commen
‘was at all times represented by Counsel, who should not have waited till the very end of the trial
es. The appellant
ain final submissions to point out that he charge was defective for duplicity. To do as they did
‘only brings out the inference that the accused was not prejudiced by the defect. I would, for that
reason alone dismiss that ground of appeal
Be that as it may, the law against duplicity is grounded on the proposition that an accused person
cought to know the offence he or she is alleged to have committed to enable him or her prepare an
appropriate defence to the charge. Where the charge sheet contains more than one offence in the
same count, such will be declared to be duplex and therefore defective. A defective charge sheet
which cannot be cured by amendment or otherwise will result in quashing the proceedings and
discharging the accused person.
‘The DPP submitted that there was no prejudice to the accused. The accused was charged with
committing an unlawful and negligent act, all in one transaction, The case of Uganda v. Guster
Nsubuga &3 others HC Session ease No. 84 of 2012 was relied on. In that case, Paul Mugamba
4, held that a charge sheet which was drafted with ‘unauthorised use and interception... when
the provision read ‘unauthorised use or interception.” in section 15 of the Computer Misuse
Act was not duplex. I respectfully agree with that decision.
In the present case, the appellant was charged with using « contaminated cannular. The act if true
h would be adduced, could well be
negligent. This was, according to the prosccution one act committed in one transact
was not only unlawful, but subject to the evidence wl
nT was
satisfied that there was no prejudice to the accused. The offence which she was charged with was
clear and unambiguous. She could prepare hier defence appropriately. | agree with the holding in
Nyanga Manyika v_R [1980] TLR 141, that while charges should not be duplex as much as
possible, there is a limitation as to the application of the rule. When a series of acts which
constitute a series of the same offence are committed in such circumstances as to amount to one
transaction then, in reality, there is committed one offence which ought to be charged in one
count,
‘The burden would be greater on the prosecution to prove that the act complained of was not only
unlawful but also negligent. That burden is not on the defence, and so the prejudice would, if at
all, be on the prosecution. For the above reasons I dismissed that ground of appealaluation of evidence.
I combined the 2" ground on evaluation of evidence with the 4" ground on burden of proof and
the 5 ground on contradictions. They were so argued by Counsel on both sides,
I will deal first with some matters of fact which I believe will help in the determination of this
appeal. The first is to ascertain when a cannula may be said to be contaminated making its reuse
‘a prohibited and unlawful act, but also a danger to the vietin
of the reuse,
“The evidence on record from the experts was to the effect that a cannula, is an instrument used to
administer drugs into the body of a person intravenously. It must pierce and therefore puncture
the body of the patient in order to be ready for use in administering the drug. When it pierees the
‘skin, it necessarily gets in contact with the blood of the person it has pierced. From that time on,
it cannot be said to be a fresh cannula, It from then on becomes a used cannula,
‘Once used a cannula is therefore contaminated or presumed to be contaminated, as it must
necessarily have drawn or gotten into contact with blood of the person whose skin was
punctured. This is irrespective of the quantities of blood which may flow from the punctured skin
‘or which may be seen or get into the cannula,
Reuse of a cannula which has pierced a person thereby getting
contact with that person's
blood on another person is prohibited and is unlawful
11 also came out from the evidence the cannula must be prepared before
is inserted into the
body of the patient. Whatever that process may be, and the trial court was not advised what form.
or time frame this preparation takes, 1
means that a process must be undertaken to get the
cannula ready for insertion.
‘The teamed trial Chief Magistrate set out two ingredients which the prosecution had to prove
beyond reasonable doubt in proof of the charge. These were:
1. That the accused unlawfully and negligently injected Mathew Tushabe with a eannula
contaminated with her blood
2. That in so doing, she knew oF had reason to believe that this could likely cause the spread
of the infection HIV, a disease dangerous to life.In respect of the 1* ingredient, the evidence on record was thus.
Ruth Alinda Tushabe PW1 told court that on the 7 January 20)4-she took her baby Mathew
Tushabe to Victoria Medical Center where the doctor PW3 prescribed treatment. She was then
called to the treatment room by the appellant who tsen tied a rubber glove on the arm and
prepared to fix a cannula on the child’s arm. During that process, the nurse who is the appellant
herein pricked herself, tSlood started flowing from her index finger. PWI told court that she
checked to see if her child was bleeding and was satisfied that the bleeding and flow of blood
was at this point only from the nurse. The nurse plastered her injured finger, picked the same
cannula and pricked the child Mathew Tushabe.
Her evidence was that she was in disbelief at the time, being aware of the danger of persons
sharing piercing instruments. She questioned the nurse why she wus doing this, but the nurse
insisted and proceeded with the operation saying she had got the vein at the first attempt, and so
she should not be disturbed. She stated that a different nurse then came in and using a different
cannula completed the treatment that had been started by the appellant.
‘The appellant in her defence told court on oath that she indeed prepared a cannula for
administering the prescribed drugs into Mathew. The appellant told court that before she called
PW1 and her child in the treatment room, she first prepared a cannula, granules, a vessel for
plastering the antiseptic, a syringe to flash if the cannula is in the vein and upon preparing these
items; she called the mother and the child to the treatment room. The young patient was crying,
and uneasy when he sensed that he was about to be injected. She told the mother to hold him
firmly as she introduced the cannula,
During this process, the cannula pierced her index finger and she placed the cannula back on the
tray. She secured the injury with plaster and picked a cannula from the tray and proceeded to
inject Mathew with the same. Her evidence was that she did not recall whether this was the same
cannula previously used, the one which pierced her, or another cannula.
“The argument by leaned Counsel for the appellant was that there was doubt thet a contaminated
cannula was used on Mathew, and therefore such doubt ought to be resolved in favour of theappellant. His reasons forthe doubt were from the evidence of PWI, the sole eye witness to the
‘evens, He argued that hor testimony’ was inconsistent. The reasons forthe alleged inconsistency
‘was her testimony in court that when the appellant fixed the cannula on her som which she
believed to be contaminated, she slarmed and her alarm attracted second nurse to enter. This
\was not the version of events in he fist statement to the police.
This aspect of the testimony of PWI whether or not she shouted for help was @ rourring
argument by Couns! for the applant in impugning the evidence of PW. twas further argued
forthe appellant that tis second nurse ought have been called as @ witness as she would
inform court of what exactly transpired. By not calling her, cour Was asked to draw the inference
‘hat her testimony would have been contradictory of that of PWI, thereby creating doubt about
the veracity of PWI asa wines
snip a Pf eh ae elven vst hy
reerng sof eft ert Henn th ws aed a
Tier Shaler tyr bp ane ete te
I te pt oy. Tre a pre fh iy te eg be
ido ea a oa pin fe ng
[When the nurse in the atempt to inject her son with the cannula the first time pricked herself, she
noticed this and even checked to be sure that it was not her soon who had been pricked. The
source of the blood was clear. I was from the nurse
The evidence thus far i fully corroborated by the accused person/the appellant in her sworn
testimony to court. The evidence of PW! as that the nurse plastered the injured finger, and she
had no gloves on her hands. She had tied a glove on the hand of Mathew in preparation of
injecting him. This was all noted by the mother PW1. She then observed the nurse pick the same
cannula from the tray and prick her son with it
“The evidence ofthe appellant was that she did allthis save that she was not sure whether she
picked the same cannula or another cannula, The tial court had the opportunity of seeing the
witnesses as they testified, It chose as it was en
led to, and believed the version ofthe mother
PW. 1 didnot find that finding unjustified fom the evidence,
7‘The law relating to a conviction based on a single witness is well set out i
the cases. In Okwang
Peter v. Uganda C. A. No. 104 of 1999, it was reiterated that subject to well known exceptions,
it is trite that law that a fact may be proved by the testimony of a single witness“The court cited
with approval the well known cases including Roria v. Republic [1967] EA 583, Abdalla Bin
Wendo & Another v_ R (1953) 20 EACA 166, John Katuramu v. Uganda $.C. No. 2 of 1998.
The time of day meaning the conditions of light, the distance between the witness to the accused,
the opportunity to observe, and prior knowledge of the accused by the witness are all factors for
consideration before such evidence is accepted as the truth. While the witness did not know the
nurse prior to the incident, the other factors which go for evidence being accepted as truthful
were present in the circumstances.
In any event this was not about the identity of the nurse, but rather in observing exactly what she
did. Whil
the law that a case is not decided on the weakness of the defence, but rather on
the strength of the prosecution evidence, PW! was in position to see exactly what was going on.
She had interest to do so. Her son was ill and very weak. This was the second day she was
coming to the clinic, and the doctor had had to change the medication. She was anxious and so
every detail mattered to her. Unlike the nurse who had doubts as to what exactly she did, the
mother of the child PW1 was not in any doubt whatever as to exactly what happened,
PWI1 saw the appellant place the cannula which she had been holding in the attempt to inject her
son prick her instead. Whether this was accidental or otherwise to my mind was not material.
PWI saw the nurse plaster the finger of her ungloved hand. PW1 saw the nurse pick the same
cannula from the tray and inject her son with the same. Upon being confronted
the objection
not to use that particular cannula, she retorted that since she had at her first attempt managed to
get the usually difficult to find vein of the child, she should not be disturbed. PW1 observed the
nurse bringing medicine and pushing it into her son through that same cannula, There was no
evidence that the appellant prepared a new cannula when she was pricked by the one she was
using. The mother would have noticed that if it was done. She did not notice it because it was not
done, No new cannula was used on Mathew by the appellant. No wonder the appellant insisted
that she did not remember whether the cannula she used was or was not the one which pricked
her.‘The argument of the absence of or not calling the second nurse to testify did not reduce the
veracity PW1 as a truthful witness. The second nurse came in after the cannula had already been
injected in the body of Mathew. This evidence was corroborated by the accused in her evidence.
Whether the second nurse came into the treatment room in answer to the alarm or shouts of PW1,
or just simply because she was done with her lunch and so was relieving her colleague would
not, to my mind, retract from the evidence of PW1 about what transpired inside that room before
she entered.
| found the evidence of PW! amply corroborated in material particulars by the evidence of the
appellant herself. The learned trial Chief Magistrate was justified to find and hold as she did that
this evidence of PW was truthful. I was satisfied that the young man Mathew was injected with
a cannula which was contaminated with the blood of the nurse the appellant herein. The evidence
of the sole witness in this case would suffice to found a conviction even in absence of evidence
of corroboration. But there was, as I have shown ample corroborating evidence from the accused.
It was argued that the cannula was not brought as an exhibit. The argument therefore being that
there was no proof that the cannula, even if it was the same one which pricked the appellant was
contaminated. I dealt with what constitutes a contaminated cannula earlier. Once the cannula
pricked the appellant and blood started flowing as it did, it necessarily got in contact with the
blood of the appellant. ‘To that extent therefore, use of the same cannula to inject any other
person constituted use of a contaminated cannula. This is prohibited and is therefore unlawful.
From my analysis above, there was clear evidence that there was use of a contaminated cannula
on Mathew. Non production of the same in court as an exhibit was not fatal to the prosecution
case.
The next matter for consideration was whether the act was negligent as to constitute an
ingredient of the offence. The appellant attacked the learned trial Chief Magistrate in respect of
this aspect. It was argued that for purposes of a criminal prosecution, where negligence is an
ingredient of the offence, there ought to be proof of negligence wi
is far greater than that
required in civil matters, Several cases both local and fiom elsewhere were cited in support and
court is grateful to Counsel for their industry,The leamed trial Chief Magistrate considered criminal negligence. In the case of R. v. Bateman
11925] ALL E.R. 45, in a case where a medical practitioner was charged with manslaughter, the
Court of Appeal of England in overturning the conviction held that, for a person to be found
guilty on the basis of criminal negligence, there must be gross negligence. The court noted that a
number of phrases have be:
used to describe the negligence in criminal eases, but went un to
advise that,
“ whatever epithet be used and whether an epithet be used or not, in order to establish
criminal liability the facts must be such that, ..... the negligence of the accused went
beyond a mere matter of compensation between the subjects and showed such disregard
for the life and safety of others as to amount to a crime against the State and conduct
deserving punishment."
In the Indian case of Jacob Mathew v. The State of Punjal ‘her Supreme Court of India
Case No. 144-145 of 2004, the court reviewed the cases on this subject and decided that criminal
negligence goes beyond negligence in civil cases. It must be gross negligence and this has been
‘equated to recklessness.
R.C. Lahoti Chief Justice of India reading the judgment of the court held,
‘
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