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2
At this juncture it is necessary to remark that the
1
appellant was unrepresented throughout the proceedings. At
the instance of the appellant, the husband of the
complainants's cousin was called as a defence witness.
Having closed his defence after that witness had given
evidence, the police prosecutor addressed the Court. After
that the appellant also addressed the Court. The trial
\
Magistrate after one adjournment gave judgment on April 23
1982. In his judgment the Magistrate dismissed the charge
of common assault and convicted the appellant of the offence
of rape. After a further adjournment to allow the
prosecutor to adduce evidence of previous convictions of the *
appellant, sentence was pronounced on April 30, 1982. The
appellant was sentenced to imprisonment for 10 years,
3. Proceedings at the High Court.
3
4.
Appeal to the Court of Appeal
On April 27, 1983, the appellant filed what he termed "Application of Conaonement for leave to Appeal out of Time in this Court. The Chief Justice as an ex officio member of this Court considered the application - no evidence that the appellant was given oral hearing - and refused leave to appeal save as to sentence. That was on July 29, 1983.
When the appeal was mentioned before this Court on December 6, 1983, the appellant indicated an intention to pursue his application
for leave to appeal against both conviction and sentence. He continued to be unrepresented. Having read the record of appeal, I was firmly of the view that the leave sought should be granted, and the leave was granted by this Court. Hearing in the appeal was postponed to December 8, 1983. On that day after argument by Mrs. Dambe for the State and by appellant in person we allowed the appeal by a majority of two to one and set aside both conviction and sentence of the appellant. Regrettably, my brother Dendy Young JA, was unable to agree with 3aron, JA, and myself. It became necessary therefore for each of us to give reasons for our decision.
5.
The Grounds of Appeal to this Court
•The grounds of appeal filed by the appellant himself -
and he is an illiterate - although he is literate in
Setswana - are as follows:
"1. The charge laid against me is rape contrary
to section 141 as read with 142 of the Penal Code.
I now argue that an essential element of the alleged crime has not been proved.
2.
The facts as referred to the evidence of all the State witnesses do not prove the slightest crime allegation of rape except the hearsay evidence of the allegation.
3.
There was no medical evidence which thing could give the Court the concrete subject matter of the alleged rape supporting the allegations of the complainant and the State witnesses hearsay evidence.
4.
The only corroborating evidence was that of assault, and it is clear throughout the prosecution case but rape is only an allegation purported by the complainant.
5.
5
The husband of the complainant was ill, and she had to call the appellant who apparently is a reputed traditional doctor or healer to assist her take care of the husband. Apparently the appellant made many visits to the complainant's house where she lived with her husband. One evening the appellant asked the complainant, Olebogeng, whether she could drink "khadi" a local beer, and she replied "yes". He then invited her to follow her to another hut where they could drink "khadi". Meanwhile the
appellant had taken the complainant's cousin Bareetse(P.W. 2) and her husband to the same Khadi drinking hut before he went to call Olebogeng. Therefore for a period the four of them, namely, Bareetse and her husband, Olebogeng and the appellant drank khadi together. After some time, Bareetse's husband left them for his hut. Later Bareetse, Olebogeng and appellant left the drinking hut and were going away when certain events
occurred. The account of those events as given by the three of them were at variance one from the ether. However it was during this
homeward trip that the appellant was alleged "to have had sexual intercourse with Olebogeng without her consent. It was an admitted fact that Olebogeng was taken to the doctor for medical evidence the very next day and that the doctor issued a report. That report was never tendered in evidence. I shall come Lack to this latter. However what is of great importance even at this stage
is that the evidence of the complainant and the evidence of Bareetse was very badly contractory one with the other and even inconsistent inter se.
6
The trial Magistrate was aware of this terrible state of affairs and yet convicted. And most unfortunately Corduff, J., would not appear also to have sufficiently adverted his mind to this.
7. Contradictions and inconsistencies in the Evidence for the State
In order to demonstrate how unreliable the evidence for the prosecution was in this case it may be necessary to set down in some detail the evidence of the two principal witnesses, namely, 0lebogeng(P.V/.1) and Bareetse(P.Y/.2). In examination in chief Olebogeng diposed as follows (inter alia):
"On the way accused then attempted to fight with the other lady Bareetse. I can't say why they started to quarrel but he pushed her to the ground and produced a knife. I grabbed accused, thinking he would stab her. I asked what he was doing. He threw me aside. Bareetse got up and ran away. Ke said to me he wanted to have * intercourse first with Bareetse and then with me immediately before he threw her on the ground". (The under-lining is mine). It would appear to me. from this piece of evidence that both Bareetse and the appellant started to quarrel(if not fight) before he threw her to the ground. After Olebogeng had rescued her cousin Bareetse from the appellant, Bareetse then ran away. It is not clear as to whether it was not after Bareetse had escaped that the appellant turned to the complainant and told her that he had wanted to
have sex with her and her cousin who had escaped.
8 After this evidence the dress she was wearing was tendered in evidence in an attempt to show that the dress had bicycle oil stain when admittedly the appellant had carried the witness on his bicycle. An exhibit which could have been tendered if indeed the appellant had had sexual intercourse with the complainant and had ejaculated as alleged was never put in evidence, namely her panties. Another mystery about the
panties was that on cross-examination by the appellant the complainant admitted that it was she herself who took the panties herself. She said: "I took off the panties. I was afraid of the knife. I am not lying". It is hardly possible for any one to reconcile this piece o evidence with the one given by the witness on examination in chief when she said that it was the accused who pulled down the panties to her thighs not that he took them off. If she was -truthful she could not be in confusion upon a fact of this nature.
As I have pointed out earlier the complainant alleged in examination in chief what amounted to saying that the appellant and Bareetse started quarrelling as a result of which he pushed
her to the ground; and that it was after rareetse had been rescued by her and Bareetse had ran away that the appellant told her that he had wanted to have sex with her. However under cross-examination she said:
"You (addressing the appellant) said you would like to have intercourse with her and threw her to the
ground
When you said you would have sex you
were walking between Bareetse and myself".
9
10 There are many other irreconcilable allegations in the evidence of these two main witnesses, but I would only like to mention two
more. First, although under examination in chief P.W.2 had said "I actually saw the knife", under cross-examination he
said "It was dark. There were clouds and the sky was not clear. I could not see the knife." Clearly the appellant was right
in his suggestion which follows directly after that evidence which elicited from the witness the reply, "what I am saying about the knife is not false". Secondly there were three different versions of the mood of P.V.I when people came on the scene of the alleged sexual intercourse. P.W.2 said P.W.1 was crying; 1-.W.3 said "she was not crying but she seemed sad"; whilst herself was totally silent on the point.
6. Conclusion on the Evidence for the Prosecution
It appears to me that at the close of the case for the prosecution, the evidence against the accused was so contradictory and unreliable that the appellant should have been discharged. Up to this point I have not mentioned
anything about the medical report. What is necessary to mention at this juncture is the fact that the failure to admit the report made the whole trial up to that stage the more unsatisfactory. But I shall come back to that later.
The trial Magistrate in my view erred in law in calling
upon the appellant to make his defence upon the charge of
rape in respect of which there was no prima facie case.
However having called upon the appellant to make his
defence, the appellant decided to make unsworn statement from the dock, in effect denying the charge.
11
9.
The Judgment of the Trial Magistrate
The trial Magistrate in his judgment reviewed the evidence as best as he could and arrived at this conclusion: "There are difficulties in the State case. I have referred to them and am aware of them. However bearing them and the statement of the accused in mind, on the whole of the evidence
in this case, to put the matter in nutshell, I believe the State witness(es). I am satisfied beyond reasonable doubt that their account is true". It is not sufficient that the trial Magistrates and Judges should merely be aware of the contradictions and . inconsistencies in the evidence of witnesses for the prosecution. They must be able to reconcile those contradictions and inconsistencies, otherwise no conviction can validly be obtained with them unresolved. It is surprising -.ind startling for the Magistrate to have said that "I believe the State witnesses". How any one can believe irreconcilable evidence beats my imagination; but what is more bewildering is how the trial Magistrate could say that he was satisfied beyond reasonable doubt that the account given by the witnesses is true when there were substantial discrepancies in the accounts (not a single account) given by the witnesses as I have clearly shown in this judgment.
10.
The Judgment of the Judge on Appeal
Unfortunately the Judge on Appeal took very little care
to analyse the evidence given before the trial Magistrate
before dismissing the appeal. Had he done that there can be no doubt that he would have allowed the appeal.
12
He merely brushed aside the contradictions and inconsistencies some of which I have pointed out by saying:
"The trial Magistrate weighed the evidence most carefully and he excluded anything of a doubtful nature. What was left conduced to the irresistible inference that the complainant's evidence that she had been raped by the appellant was true." There is no magic in words. If indeed the trial Magistrate excluded anything of a doubtful nature there would be no substance whatever in what was left and I have shown, the appellant ought
never to have been convicted. A trial Magistrate or Judge can only arrive at the truth of a case by a careful analysis of all the evidence, not by taking a bird's eye view of such evidence more especially where there are obvious material contradictions and inconsistencies.
Speaking for myself I had, and still have no difficulties whatsoever in holding that the conviction of the appeallant was not unsatisfactory and could not be allowed to stand.
To my mind that concludes the matter, . but another issue was raised by the appellant which I think was of considerable importance. That is the question of the lack of any evidence to corroborate the allegation of the complainant
that the appellant had sexual intercourse with her without her consent on the day in question. 11. The Question of Corroboration
The trial Magistrate considered the question of
corroboration, but regrettably found corroboration where
there was none. That in law is a misdirection which must result in the conviction being set aside.
13
The trial Magistrate said:
"As to the fact of intercourse the only direct evidence is the account of P.W.1 herself. That may perhaps appear not to be remarkable in that people do not tend to commit rape in public, but there is often more direct corroborative evidence: medical evidence, damaged or missing clothing, or the admission of accused, than anything here. This is of course a case in which accused denies intercourse. There is one item of evidence capable of corroborating the complainant's account in this respect, and it is the evidence of P.W.2 that accused said before she escaped that he wished to have intercourse first with her and then with P.W.1 and immediately demonstrated
that he was prepared to use violence to achieve this. This was precisely corroborative of an identical assertion by P.W.1". I have earlier on in this judgment quoted from the evidence of both P.71 and PV/2 to show clear contradictions and inconsistencies in that evidence. Therefore it was a gross misdirection for the Magistrate to have held that the evidence of one corroborated that of the other in-this respect.
Now, even if the direction of the trial Magistrate was correct, the evidence of the intention - it could not be held any higher - of the appellant to have sexual intercourse with both women was certainly not corroboratory of the allegation of
the actual act of sexual intercourse.
14
It is most unfortunate that the Judge on Appeal did not see this distinction as between the corroboration of the evidence of intention, and the corroboration of evidence of the actual act of intercourse. The learned Judge on appeal simply said:
"As regards corroboration there was adequate evidence otherwise to support the testimony of the complainant". The Judge on Appeal did not anywhere in his judgment point out which evidence he considered to be evidence in corroboration of the act of sexual intercourse. He was therefore clearly in error in this regard.
The trial Magistrate was quite right when he said that in a case like this you would expect one of the three things as corroborative evidence of sexual intercourse: (a) medical evidence; (b) damage or missing clothes; (c) admission by the accused. The Magistrate himself ruled out (c) correctly since the appellant denied having sexual intercourse with the complainant. No medical report was* admitted in the evidence, although one was tendered. The trial Magistrate erroneously failed to admit the medical report in evidence, purporting to rely on section 222 of the Criminal Procedure and Evidence Act. Of course in rejecting the medical report he was clearly in error. The section permits him to admit the report, but gives him a discretion to call
the doctor who wrote it, if he considered that the justice of the case demands this.
15
However having not admitted the report in evidence he went on to consider it in his judgment. He wrote:
"The second negative matter is the lack of medical evidence. The sole significance of that in this case is simply that what is normally potential source of corroboration in such cases
is lacking. (Having said that I should record that I have
had sight of a medical report on P.W.1
which
was expressly entirely neutral as opposed to negative on the matter of indications of rape in the genetalia but which was not neutral on the question of extragenital injuries. I record that partly in order manifestly to be seen to disregard it completely but also in order to indicate that despite his expression in his closing remarks of a frustrated desire to ask the medical officer questions, no basis exists in his report upon which accused can possibly have been prejudiced by his non-availability)". In my view this is a very serious misdirection which by itself was capable of being sufficient basis for setting aside the conviction of the appellant. I fail to see how the Magistrate could have come to the conclusion that the non-availability of the report which he found "not neutral" could not have prejudiced accused's case. At this juncture I feel compelled to set the record straight. The alleged rape was said
to have taken place on February 10,1982; the complainant was examined the very next day by a medical
16
officer; and the appellant appeared before the Magistrate on February 16, 1982. Hearing in the charge commenced on March 16, 1982. On March 29, 1982 the case was adjourned to April 5 for the evidence of the doctor to be taken as the appellant had expressed strongly his desire to cross-examine him. Then
for the first time the prosecutor informed the Court on April 5
1982 that the medical officer had left Botswana for good. One is bound to wonder why it took the prosecution such a long time to give this information to the Court and to the appellant. In any event the medical report not having been admitted ought to have been expunged completely from the record. Even in the way the Magistrate has put it, I am not entirely satisfied that the contents
of the report did not adversely prejudice the mind of the trial Magistrate against the appellant, and for that-reason only as I have said, I would set aside the judgment. The Judge on appeal was also clearly in error when he said:
"In fact it would be correct to say that the facts of the report not being admitted in evidence was to his (appellant's) advantage". How he came to this conclusion without any evidence must be a Mystery.
At the hearing of this appeal my two other brother
Judges showed a desire to see the medical report but I was
satisfied in my mind that such an exercise, with the
greatest respect, was uncalled for. In the long run copies
of the report were given to us, but I refuse to fall into the same error as the learned Magistrate.
17
I have therefore refrained from making any comments on the contents of the report, as at no time has the report ever been made part of the evidence in this case.
Another piece of evidence which could have provided corroboration of the evidence of the complainant that the appellant had sexual
intercourse with her, still following the reasoning of the trial Magistrate, would have been the complainant's panties. Instead the
prosecution tendering these they decided to tender her clothes with bicycle oil stain admittedly innocuous for this purpose. If indeed the appellant had sexual intercourse with the complainant either by merely lowering her panties or after she had removed it herself(and presumably put them on again immediately) one might have expected some stain on them. But the panties were not tendered in evidence. Indeed no evidence that they were ever sent for medical examination. So this possible means of corroborating the evidence of the appellant as to her allegation of sexual intercourse was missed; and we are left with the irresistible conclusion that the evidence of P.Y/.1 as shaky as it lacked corroboration in respect of the act of sexual intercourse
12. Conclusion
From all that I have said I have no hesitation in coming to the conclusion that the conviction and sentence of the appellant were erroneous and must, and indeed have been set aside.
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