Botswana: Court of Appeal

a taxi. While she was waiting she saw the two appellants approaching from the opposite direction. The 2nd appellant addressed her in a threatening manner and then forcibly took her bag from her, while the 1st appellant forcibly took her wrist watch. The 2nd appellant then ran away with her bag. The 1st appellant remained at the scene. Aided by another man who had appeared at the scene, the 1st appellant violently assaulted her and pinned her to the ground. They released her and ran away only when they saw the headlights of an approaching vehicle. She sustained a laceration on her left cheek and lost consciousness as a result of the assault. The bag was subsequently recovered from the 1st appellant.
It is convenient to deal with the appeal against the conviction on Count II first. In arguing his appeal the 1st appellant pointed out that he was not the only passenger in the van on the journey from Gaborone to Lobatse. In arguing his appeal the 2nd appellant emphasized that although the complainant had deposed that he (the 2nd appellant) had threatened her at all; and that none of the property alleged to be stolen was found in his possession. Learned State Counsel conceded that the evidence in support of this count did not establish that either of the appellants stole the complainant's property. He therefore did not seek to support the conviction. It will be recalled that apart from the complainant, PW4 and the two appellants, there was at least one other passenger in the truck of the vehicle during the journey to Lobatse. There is no evidence as to which of the passengers took the missing purse from the bags of the complainant. Indeed Detective Sgt. Nawala (PW5) said in cross-examination by the 2nd appellant that the complainant did not know who had had taken her purse. And in her evidence she did not say that she saw the missing purse being taken by any of the passengers. There is therefore no evidence that either of the appellants stole the purse or its contents. In the circumstances, the charge was not proved and the appellants are entitled to an acquittal.
I now turn to the appeal against conviction on count I. The 1st appellant stated that he picked up the bag alleged to belong to the complainant (PW1) along the river near BMC and took it home, but that he did not examine its contents. The 2nd appellant emphasized that te robbery was alleged to have been committed at the same time that he was in the vehicle travelling to Lobatse. He argued in effect that it was impossible for him to commit the crime in Lobatse while he was still a passenger in the vehicle. Learned State Counsel submitted that the 1st appellant

had failed to give a satisfactory explanation of how the bag came into his possession. With regard to the 2nd appellant, learned State counsel said that there seemed to be a problem relating to his identification. He also confessed that he had had difficulty reconciling the times the two offences were alleged to have taken place.
The first question I propose to consider is whether the evidence relating to the times of the two offences can be reconciled. According to the evidence of PW3 she boarded the vehicle at Gaborone around 7 p.m. She said that at around 8 p.m. after she had been molested, she observed that her bags had been removed from their original positions. According to PW4 he arrived at Boatle at 7.30 p.m. and boarded the vehicle later. He did not say when he boarded the vehicle. And neither PW3 nor PWA said when the vehicle arrived in Lobatse. All that can be gathered from PW3's evidence is that at 8 p.m. the vehicle had not arrived at Lobatse. On the other hand according to the evidence of PW1 when she arrived at the bus rank it was already dark. She said that it was around 7 p.m. She walked from the bus rank along the main road. Later she stopped and waited for a taxi. She did not say for how long she walked or waited for a taxi. Indeed a common feature of the evidence is that all the witnesses were imprecise as to time. In my view when the whole of the evidence regarding time is considered it cannot be said with any certainty that the 1st and 2nd appellant had not arrived in Lobatse when the incident involving PW1 took place. Indeed it is reasonable to infer from the evidence and all the circumstances that they had arrived in Lobatse and were at the scene where PW1 was attacked.
On the question as to identification, PW1 testified that she saw the two appellants approaching her and that the 2nd appellant actually uttered some words. She said that she was able to properly observe their faces as they were very close to her and there was a street light a short distance away. She said that the 2nd appellant was wearing a yellow overall at the time. PW3 also said the 2nd appellant was wearing a yellow overall when he travelled in the vehicle that evening. PW4 also confirmed to the Police investigating officer (PW5) that the 2nd appellant had been putting on a yellow overall on the evening in question. There was therefore ample evidence before the learned magistrate on which the reliability of identification of the appellant by PW1 could be assessed. In my opinion the learned Magistrate properly evaluated the evidence as to the identity of the assailants of PW1 and came to a reasonable