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Casom v The State (Criminal Appeal No. 138 of 1981) [1981] BWCA 10 (4 December 1981)

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IN THE COURT OF APPEAL
FOR THE REPUBLIC OF BOTSWANA
Francistown Case No. 618 of 1980 Criminal Appeal No. 138 of 1981
In the natter between!
MORGAN CASMON    Applicant
and
THE STATE        Respondent
RULING ON APPLICATION FOR LEAVE TO APPEAL
O'BRIEN QUINN. CJ
This application coses before me as a Single Judge
of the Court of Appeal under the provisions of Rule 36
as read with Rule 49 of the Court of Appeal Rules 1975*
The applicant was convicted by the Senior Magistrate at Francistown on 10th August, 1981, on a charge of being in unlawful possession of precious stones and sentenced to 3 years' imprisonment, and a suspended sentence o? 20 months' imprisonment for a similar offence committed in 1979 was activated and ordered to run consecutively.

The defence of the applicant, his ground of appeal in the High Court and basis of his application are that the Police "pleated" the diaaonds on him and that he knew nothing about them. In this application he also applied for leave to appeal against sentence on compassionate grounds*
Having perused the papers and correspondence, I do not consider that any purpose would be served by having this matter heard in Court. The whole question turns on credibility. The Senior Magistrate had to decide whether he believed the three Police Officers or the applicant, and after carefully considering the question and stating that he realized t at there were minor discrepancies in the Police evidence,nevertheless held that he believed them and not the applicant.
The applicant has not, either in the High Court or fti his written application to this Court, raised any point or argument which has shown or indicated in-any way why the learned Senior Magistrate should have believed otherwise.
Likewise, I do not consider that he would be able to show or Indicate to a full bench of this Court any reason why this Court should find that the Senior Magistrate was wrong in his finding.

In ay opinion the applicant was rightly convicted and I refuse him leave to appeal to the Court of Appeal,
With regard to sentence, the Courts in Botswana look very severely on offences of unlawfully possessing uncut diamonds and particularly on second offenders* In the clrcuastances of this case I can only say that the learned Senior Magistrate was right to have so sentenced the applicant and to have activated the suspended sentence and ordered it to run consecutively to the aaln sentence.
I, therefore, refuse leave to appeal against sentence also*
RULING Bade at the High Court* Lobatse* this 4th day of Deceaber, 1981.
J. A. O'BRIEN QUINN CHIEF JUSTICE

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