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Motlhale and Others v The State (Criminal Appeal No. 29 of 1986 ) [1986] BWCA 12; [1986] B.L.R. 34 (CA) (15 July 1986)
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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 29 of 1986
High Court Crim. App. 102 of 1985 Kanye Case No. KN 193 of 1984
In the matter of
M0REB0DI MOTLHALE )
SHOLO NGOPE )
Appellants
MOAMEDI MOTLHALE )
v s
THE STATE
Respondent
Mr. D. Newman for the Appellants
Miss T. Mutshekwane for the Respondent
JUDGMENT
Coram: T. A. Aguda, JA
A.
N. E. Amissah, JA
B.
A. Doyle, JA
DOYLE, JA.
The three appellants were charged with the offence of robbery contrary to Section 296 as read with Section 297 (2) of the Penal Code.
Briefly the facts were that at about 4 a.m. on 2nd September, 1984 two men entered a bedroom where the Deputy Manager of the Botswana Agricultural
Marketing Board was asleep. They seized him and demanded his office keys. They roughed him up and took him covered in a blanket to his office.
On the way they were joined by a third man. These
2
four were seen by two watchmen at the Board's premise.
The office safe was opened and P4 061 stolen.
Neither the Manager nor the watchmen could identify the three men.
On 3rd September a Sub-Inspector Police came from Gaborone. He was taken by the police to a house with a broken window from which he took a palm print. This palm print was later found to be that of 3rd Appellant. The Sub-Inspector did not know the house nor was any evidence led to identify the house.
On 3rd September the 2nd Appellant was detained and questioned. A police witness PW6 took him to his house where he pointed out P900 left in a radio.
Also on 3rd September the 3rd Appellant was found at a restaurant. He was searched and P90 was found on him. Later he produced another P107 to PW6.
On Ath September the 1st Appellant was arrested and found to have P3.62. This accused also pointed out a cash box in a toilet referred to as Tony's. This cash box was not identified as playing any part in the robbery.
The police also collected a pair of shoes from the 1st Appellant.
During the course of these events a number of inadmissable statements were made to the police.
No evidence was led to show that the three Appellants knew each other or went around together.
3
The foregoing stripped of any inadmissable evidence represents the State case at the close of their evidence
The Appellants remained silent and called no witnesses.
The learned Magistrate in his judgment included
the following passage:-
"The main question is whether there is any evidence to implicate the accused persons. Now so far as accused No. 1 and accused No. 2 are concerned, the only evidence against them is that of PW6 who in fact discovered certain money and a pair of shoes. So far as accused No. 3 is concerned, in addition to the evidence of PW6, there is also the evidence of finger prints which implicates him (accused 3) at least to the first breaking of the window where PW1 was sleeping, and from where he was taken to the office of B.A.M.B. Now in terms of section 228(2) of Act No. 25 of 1983, evidence to the effect that anything pointed by the accused, or any fact or thing discovered in consequences of any information given by the accused shall be admissable. In this case according to PW6 , accused one showed him a pair of shoes which he said he bought from the money he received as his share from the breaking at B.A.M.B. Accused 2 pointed out a radio in which he (accused 2) had kept the sum of P900 as his share he received from the breaking of B.A.M.B. Accused 3 also gave PW6 the sum of P107 as part of money he received in addition to the sum of P90 which PW6 found in possession of accused 3. Further there is a clear evidence of his finger prints taken at broken window where PW1 was sleeping the night in question and from where he was then taken to B.A.M.B. where the money was stolen from the safe."
In this passage the learned Magistrate relied on -
a) the fact that a palm print of 3rd
accused was found at the
Manager's
house. The prosecution
had failed
to prove this. This was
gravely
damaging to 3rd accused.
b)
that the pair of shoes were shoes which 1st Accused said he had bought from his share of the robbery. Although the finding of the shoes was admisable, though in itself valueless, the statement was not and was gravely damaging to 1st Accused. It was clearly in the Magistrate's mind.
c)
the fact that 2nd Accused pointed out a radio in which he had left the sum of P900 as his share he received from the breaking of B.A.M.B. Again the pointing out of the P900 was admissable but the statement that it was a share from the breaking was not. This statement was gravely damaging to 2nd Accused and was again clearly in the Magistrate's mind.
On the possession of money alone the finding of P3.62 on the possession of 1st Appellant and the finding of P197 on 3rd Appellant was clearly not enough to connect them with a robbery of P4 061. There must have been many persons in Martinsdrift with such sums. It is debatable whether the finding of P900 in the radio was sufficient to enable an adverse finding against 2nd Appellant.
However the reliance on inadmissible evidence makes it clear that the convictions cannot stand against any of the Appellants. I would allow the appeal and quash the convictions .
B. A. DOYLE (Judge of Appeal
I agree
A. AGUDA 'Judge of Appeal
I agree
AMISSAH Judge of Appeal
GIVEN at Lobatse this 15th day of July, 1986
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