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Chalaomane v The State (Cr. Appeal No. 5 of 1986 ) [1986] BWCA 4; [1986] B.L.R. 261 (CA) (1 January 1986)

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IN THE COURT OF APPEAL
OF BOTSWANA
Court of Appeal Cr. Appeal No. 5 of 1986 High Court Cr. Appeal No. CAF.No. 18/1985
In the matter between:
GASEITSEWE HUNTER CHALAOMANE Appellant
vs .
THE STATE
CORAM: I. A. Maisels,. JP, ,
L. De Van Winsen JA., B. A. Doyle, JA.,
Appellant in person
Mr. S. A. Afful for the State
JUDGMENT
DOYLE, J.A,
Appellant was charged with shop-breaking and theft contrary to section 307(a) as read with section 276 of the Penal Code.
On the night of 13-lAth June 1984 a shop at Martinsdrift , which is near the South African border, was broken into and property stolen. The property consisted of a large quantity of clothing, some miscellaneous articles and a radio. In addition cash in pula and rand to the value of about P600 was also stolen.
On 19th June Appellant was found in Martinsdrift wearing a new suit and shoes which were later identified as being part of the dstolen property. He was also found to be in possession of P175 and R222.30. On 20th June Appellant pointed out to the police considerable quantity of clothing and a radio hidden in three different spots. All this was identified as

being part of the stolen property. That was the totality of the State case.

The appellant in evidence said that he had been in South Africa and did not enter Botswana until 18th June 1984. He had obtained the currency in different countries and he had bought the suit in 1983. He denied possession of the other clothing. He called three witnesses, two of whom said that they had seen Accused wearing the suit in May 1983 in South Africa.
The learned magistrate, having considered the evidence, found that all the property, including the suit, was property stolen from the shop. He considered the doctrine of recent possession. For some obscure reason he thought that he could not convict of shop-breaking and theft but, under the provisions of section 193 of the Criminal Procedure Code, he convicted the Appellant of receiving contrary to section 321 of the Penal Code. He did not at anytime warn the Appellant of the possibility of such a conviction.
Appellant appealed to the High Court and his appeal was dismissed. He then sought leave to appeal to the Court of Appeal.
Murray, J in granting leave out of time adverted to a decision by Hayfron-Benjamin CJ in which it had been held that where, on a charge of rape, it was sought to rely on the provisions of section 192 of the Criminal Procedure Code to convict of an alternative offence of defilement, the Appellant should be warned of the said provisions before they were

invoked. The purpose of such a warning was to put an accused person on notice that an alternative conviction was being considered so that the Accused could properly prepare and put his defence to the alternative charge. This would, if necessary, include an application to further cross-examine State witnesses or lead further evidence. Murray, J felt that the same reasoning applied to section 193 of the Criminal Procedure Code. For this reason he granted leave to appeal.
The case referred to is State v. Bareki 1979 BLR 35 which was brought to the attention of this court by counsel for the State.
In Bareki's case the Accused aged 20 was undefended and was charged with rape. The case was fought throughout on the basis of lack of consent. The defence was consent. In the course of cross-examination in answer to the two last questions the Accused said that he did not know the age of the girl but he thought she could be 13 or 14 years. The significance of these questions was not brought to the attention of the Accused
In dealing with the matter Hayfron-Benjamin C.J. had this to say -
"Even where the Court forms the opinion that the charge of rape has not been made out, it does not follow that the power to convict of the other offences should be invoked. The power to convict of the other offences is discretionary and it must be exercised judicially. All the alternate offences listed under Section 191 except the

offence of defilement of girls under the age of 16 are lesser offences to rape. Section 147 prescribes the same punishment, for defilement of girls under 16 years, as is prescribed for the offence of rape i.e. life imprisonment with or without corporal punishment. Even in respect of lesser offences as Fenton Atkinson J. cautioned in R v. McCormack - 53 CAR 514 at 518 -
"Cases vary so infinitely that one can well envisage a case where the possibility of conviction of some lesser offence has been completely ignored by both prosecution and defence - it may be that the defendant has never had occasion to deal with the matter, has lost a chance of giving some evidence himself about it or calling some evidence to cover or guard against the possibility of conviction of that lesser offence - and in such a case, where there might well be prejudice to a defendant, it seems to this Court there must be a discretion in the trial judge whether
or not to leave the lesser offence to the jury."

The discretion conferred under Section 19.1 to convict the accused of the equally serious offence of defilement of girls under the age of 16 years must be exercised only in the clearest cases, and only where the accused had been afforded the opporunity of meeting any additional issues that would have been raised had he been charged with that offence. Section 10(2)(b) of the Constitution provides that "Every person who is charged with a criminal offence shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence charged." I do not know how a person who is informed in terms of this section that he has had sexual intercourse with a girl without her consent, can be said to have understood that what was meant is that he had had intercourse with a girl under 16 years of age. It is true that Section 10(2)(6) makes reference to the offence with which the accused is charged, and that Section 191 empowers the Court to convict even though he is not charged with the offence. However, Section 191 does not absolve the

court from the duty of informing the Accused especially where he is unrepresented by Counsel, where the age of the complainant is given as below 16, of the implications of the charge of rape and the possibility of conviction of the other offences.
In this case the particulars of the offence made no reference to the age of the complainant; it was never explained to the accused that he faced the charge of defilement of a girl under 16. It was in the trial Magistrate's judgment that the matter cropped up for the first time. The Accused had no opportunity of meeting the case of defilement of a girl under 16 years. Unrepresented by Counsel, he could not have adverted his mind to the issue of age or of its relevance. And yet the learned trial Magistrate attached an improper meaning to his one answer on the question of age."
The conviction was quashed.
In Bareki's case it is plain that the unrepresented Accused was very seriously prejudiced by the failure to warn that he might be convicted of defilement.

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