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Mmolawa v The State (Criminal Appeal No. 1 of 1990) [1990] BWCA 3; [1990] B.L.R. 323 (CA) (1 July 1990)
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.RTF of original document
IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Criminal Appeal No. 1 of 1990
In the matter between:
DIKAKANYO MMOLAWA
Appellant
vs.
THE STATE
Respondent
M. S. Letsididi for the Appellant P. S. Sedie for the Respondent
JUDGEMENT
Coram: T. A. Aguda, J.A. B. A. Doyle, J.A. G. Bizos, J.A.
Doyle, J.A.:
The Applicant was convicted at the Senior Magistrate's Court at Mahalapye of the rape of a woman Dineo Phuthego and was sentenced
to two years imprisonment and three strokes. His appeal to the High Court was dismissed and he was refused leave to appeal. He now applies to this court for leave to appeal.
The evidence for the prosecution was briefly as follows:
Dineo, who was a woman aged about 22 years and had had a child, stated had come to stay at a house in the staff quarters of the Mahalapye State Prison. This was in March, 1987.
On 20th June 1987 at about 9 p.m. she was with a woman, Efa, and a couple of others. She wanted to have a bath. She collected water
from the kitchen and undressed so that she was wearing a half-slip, panties, shoes and a towel wrapped around. As she was going to
the
LD
bath, the Applicant, whom she had never seen before but who lived in a house on the opposite side of the street, called out to her and ask her assistance as an electric plug had fallen, she said that she could not as she was going to her bath. He left. Almost immediately after she changed her mind and, accompanied by Efa, she went to his house. The Applicant told her to go in and put on the lights. She and Efa went into the house. The Applicant followed and immediately pushed
Efa outside and locked the door. Applicant then caught hold of her demanding sex. She struggled and shouted. The applicant then picked
up a knife and threatened to stab her if she would not consent. She still resisted and he threw her onto a mattress. He put one hand over her mouth and pulled her panties off with the other. All the time she was trying to push him away. She agreed that the struggle was not violent as no blows were struck. The applicant then got on top of her, inserted his penis into her vagina and began to have intercourse. During the intercourse she told applicant that he was hurting her and she had been to hospital where she had been admitted. He replied that he had not made her sick and he was going to
have intercourse. He continued to do so. Also during the intercourse he was putting his tongue into her mouth and ears. She did not know whether he ejaculated but at some stage she managed to push him off,
open the door and run away. The towel panties and shoes were left behind.
She was then crying and she ran to the nearby house of a Mr. Christmas to whom she made a complaint of rape. She and Christmas then
went to the applicant's house. Christmas told the applicant of the complainant and he replied that he had not raped her but that She was his girl friend. Christmas then asked where the sex had taken
d3
place and Applicant showed him the room with the mattres on which were lying the towel, panty and shoes. Christmas asked whose those they were and he replied that they were Dineo's. She and Christmas then left and Christmas told her to report to a senior member of the prison staff. She went to a Mr. Mosokoto who was not very helpful. However something was done and later that night the police came. She went with them to the applicant's house where her items of clothing were
taken by the police. She was then taken to the police station and to the hospital where she was examined but no injuries were found.
The evidence of Christmas was that on that night Dineo had knocked on his door and complained she had been raped. She was crying. He went with her to the Applicant's house where they found the Applicant. Christmas asked the Applicant about the matter. The Applicant seemed confused and would not give a direct answer to his questions. Applicant only asked whether there was anything suggesting of a rape. The applicant did not say that Dineo was his girl friend. Christmas had seen the towel and panties on the mattress. Dineo had pointed out the room and the items. He could not say if there was any indication of a rape.
The evidence of Efa was that on the night she was with Dineo and a woman, Bonno. The Applicant came to the house and asked for assistance with the plug. They refused and he went away. Bonno and Dineo discussed whether the applicant was telling the truth and whether they should have assisted. Dineo then suggested that they
should. She and Dineo went to the Applicant's house. They went inside. The Applicant told Dineo to switch on the light in the bedroom. The Applicant then pushed Efa roughly out of the room and
Q3
she ran out of the house and went to Bonno's where she told Bonno what had happened. She thought Dineo could have left whether but assumed
that she and the Applicant wished to have a private conversation. She j
thought the Applicant had been very rude to push her out so roughly. j
i
Later she had seen Dineo with Christmas and she was crying.
!
Police evidence was that a report of rape was made on the night
of the 20h. In consequence a search was made of Applicant's house j
i
that night.
The towel, panty and shoes were found but no knife. Dineo was sent to the hospital for examination. Applicant was arrested that i
night and cautioned. In answer to the charge he said that Dineo was his girl friend and he had had intercourse with her consent.
Later Applicant made a statement. In it he said he had proposed
love to Dineo on 14th June 1987. She agreed and on 15th June 1987 she
had spent the night with him at his house. On 20th June she had come !
i to spend the night. He explained that he had to go on duty at 10 p.m. |
They had intercourse. Dineo then went away. A short time later i
i i
before he could go on duty she came back with Mr. Christmas. Mr.
Christmas told applicant that she had claimed that he had raped her. He told Christmas that it was late and he would see him the following ! day to discuss the matter. He then went on duty. While on duty he ; was called and confronted with the allegation of rape. He denied it , and said he had had intercourse with consent.
The Applicant gave evidence. His evidence agreed with the prosecution case as to the incidents leading up to the arrival of Dineo and Efa at his house. After they arrived at the house, he
and the two women sat down and listened to the radio. Efa then left. He suggested to Dineo that as they were lovers, they might go to the
5
bedroom. They did so and had intercourse as lovers. She then left and he went to have a bath. On his return he found her at the house with Christmas. Christmas asked him if Dineo had come from him
and so he agreed. Asked where sex took place and he pointed out the room. He was not asked about rape. Applicant then went on duty to the prison. Some time after he was called to the office of Mr. Orapeleng, another prison officer. There he found Dineo, Efa and Bonno. Dineo was crying. Orapeleng asked him if he knew Dineo. He said he did and ten was told of the accusation of rape. He denied it. The police were then phoned. He then told Orapeleng that he had had intercourse with Dineo with her consent. He was arrested when the police came and spent the night in a cell. Next day he went with a police sub-inspector to his house which was searched- t>ut no kife was found. His house had also been searched the night of 20th and the items of Dineo*s clothing was taken then by the police. He denied that he had said in his statement that he had proposed love to Dineo on 14th June 1987 or that she had spent the night of 15th June 1987 with him.
The learned Magistrate considered the evidence. There was no dispute that intercourse had taken place. The only question was whether it was with or without the consent of the complainant. He
warned himself on the need for corroboration. He found that Christmas was a credible witness and found that applicant had not given any answer as to what had hapened when he was questioned by Christmas
about the rape. He had "funbled."
The learned trial magistrate really decided this case on a matter of credibility of the Prosecution witness as against the applicant.
6 !
As the applicant had shown himelf to be a liar on various aspects of the case, he disbelieved him on the question of consent. He did not
really examine the case in every aspect.
There were a number of matters might which tend to support the fact that consent was given.
1.
the fact that the woman was only half clothed when she
went to the house of the Applicant who was allegedly
complete stranger.
2.
The evidence of the intercourse showed that the
applicant, supposedly forcing his attention on a
resisting victim, was getting his tongue in the
mouth and ears of the complainant a form of
kissing. Prima facie this would seem more consistent
with an amicable relationship rather than a rape.
3.
The applicant intent on rape forced or bundled Efa
out of the house and immeditely started upon his
rape. He was reckless of where Efa had gone. She
might be standing outside the door, a witness to
hearing at least what was going on inside - as indeed
might be any person passing in the street.
A. Although the complainant shouted, no one heard.
5.
No knife was found though the room had oboviously not been tidied.
6.
No injuries were suffered by the complainant.
7.
the evidence was that though Efa considered the action of the applicant in pushing her out was rough and discourteous, it did not raise any alarm in Efa in relation to the position of the complainant. She assumed that the two might want to have a private talk.
Perhaps each one of these factors by itself is not very strong but
added tigetgerm they have some force.
Ther is however, a further and vital point. The evidence of Mr.
Christmas weighed heavily with the learned magistrate and was the
corroboration which supported the conviction. There were four
versions of what happened -
(1) The complainant said that when confronted by Mr. Christmas about the allegation of rape,
the applicant said he had not raped her and that she was his girl friend. Christmas asked applicant to show him the room where intercourse took place and applicant did so. Christmas asked whose were the items (panty, towel and shoes) which were on the mattress. Applicant replied that they were Dineo's, the complainant.
(2)
The applicant's statement to the police states that
when Christmas and Dineo came, Christmas told him
that Dineo had made an accusation against him of
rape. He told Christmas that it was time up and he
would see Christmas and discuss the matter on the
following day in the morning. (Presumably the reference
to time's up" meant that he had then to go on duty
to the prison which he admittedly did.
(3)
Applicant in evidence said that Christmas asked
whether Dineo was from him and he said she was.
He asked where they had sex and applicant pointed
to the room. Christmas did not tell him about the
accusation of rape. He then went to work.
(4)
The evidence of Christmas was that applicant was
confused and did not give a direct answer when
Christmas asked him what had happened. Dineo showed
him the room. In the room he saw a mattress on which
there was a towel and a panty.
In cross-examination he said:-
"Accused did not answer my question. He asked whether there was anything suggesting rape. He seemed confused as he said there
was nothing when I could see the items on the mattress. He did not say I had sex with the girl with her consent."
The learned Magistrate did not give any consideration to Dineo's
version which differed from that of Christmas in relation to who
pointed out the room and what the reply of the Applicant was. He sems
to have overlooked it completely. As to the statement to the police
the learned magistrate pointed out that it is fundamentallly different
from the Applicant's testimony such as when he met Dineo and whether
it was their first sexual encounter. He treated the statement as an
exposition of the applicant as a liar. The statement did, however,
maintain that sex had been with her consent and is consistent with
!-S-i
what he told Orapeleng earlier and with what Dineo said he told j
i
Christmas. As to applicant's version the learned magistrate seems to have thought that the applicant was maintaining that Christmas
had
come to the Applicant's house only to ask whether Dineo was from the
i i house whereas of course he also said that Christmas had asked him
! about sex though not about rape.
:
The learned magistrate accepted Christmas's version in toto. He \
found as a fact that the applicant was confused and the applicant was
i
•
i
j confused and had made no answer to Christmas's question as to what had
| occurred. As to the confusion it is not entirely clear from the j
; evidence what the confusion consisted of. On the question of what
j
:
I answer was given the learned magistrate was clearly mistaken.
]
:
j According to Christmas the Applicant made no direct answer to the
!
i
j
i
question of rape and did not duly state that he had had sex with j
I
i
J Dineo's consent. He and Dineo and Christmas were in the room which !
j
;
I had been pointed out. The Applicant asked Christmas wheter there was [
! that anything suggesting rape. This must have related to the room and j
the words were an implicit denial that rape had taken place.
| This was a clear misdirection. The fact that Applicant had not j
!
]
j denied the rape was the main corroboration relied upon by the learned i
; magistrate and indeed by the learned judge on the appeal. This
!
i
misdirection went to the heart of the case. I do not consider that if the learned magistrate had correctly directed himself upon
this point, he would necessarily have come to the same conclusion of guilt.
The applicant lied on many points but even innocent persons sometime do this when faced with accusations of crime. There is no evidence
to show why Dineo should bring an unfounded complaint against the applicant. It is not beyond conjecture that perhaps pique or
rancour that the Applicant continued to have intercourse when she complained it was giving her pain.
However this may be looking at the evidence as a whole, I am left with an uneasy feeling that the whole truth has not come out in this case and that the conviction is not safe.
I would give leave to appeal; treat the hearing as the appeal allow the appeal and aquit the applicant.
GIVEN at Lobatse this
day of July, 1990.
B. A. DOYLE JUDGE OF APPEAL
T. A. AGUDA JUDGE OF APPEAL
G. BIZOS JUDGE OF APPEAL
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