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    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.

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    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.

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    2K views20 pages

    Rosemary Namubiru Appeal Court Judgement

    Uploaded by

    HIV Justice Network
    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.

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    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 of injections 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 a in 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 appeal aluation 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 the appellant. 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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