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Magubane v The State (Criminal Appeal No. 4 of 1991) [1991] BWCA 14; [1991] B.L.R. 286 (CA) (7 July 1991)
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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
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Criminal Appeal No. 4 of 1991
In the matter between:
LENOX MALIXOLE MAGUBANE
Appellant
and
THE STATE
Respondent
Appellant in Person
Mr. G. Baruti for the State
JUDGMENT
Coram: A. N. E. Amissah, JP. T. A. Aguda , J. B. Doyle, JA.
Amissah. JP.
The appellant was convicted of seven offences before the High Court. On these he received various sentences which I now set out. On the conviction of attempted murder, contrary to section 222(a) (now section 217(a) of the Revised Laws) of the Penal Code he received 7 years imprisonment. On the conviction on four separate counts for being in unlawful possession of an arm of war, contrary to section 9(1) and (A), as punishable under section 9(5) of the Arms and Ammunition Act, he received a sentence of 6 years imprisonment on each count. On the conviction on two counts for re-entering Botswana whilst being a prohibited immigrant contrary to section
2
26 as read with section 32(2) of the Immigration Act, he received a sentence of 6 months imprisonment on each count. All the sentences were made to run concurrently. Therefore the effective sentence he had to serve was 7 years.
The appellant now appeals against both his conviction and sentence. From the outset, I must say that this is a very bad case indeed. The appellant is not a national of this country. He is not resident here. He has no connection with the fortunes of this country. In a very detailed and meticulous judgment by the learned judge a quo, the judge found that the appellant had attempted to murder one Raymond Mogale.
The appellant, a foreign national, came to Botswana armed with a pistol, two magazines loaded with live ammunition and two hand grenades, with the sole purpose of killing members of the African National Congress (ANC) of South Africa. He entered Botswana, although he had once before been deported from here, not on his South African passport, the particulars of which the Botswana authorities had, but on a Transkeian passport which had been issued to him under an assumed name. On his own admission he had assumed this name in order to conceal his real identity from the ANC members who were living in this country and that the use of an assumed name would also conceal his identity from persons who were not ANC members. Among the latter, I would expect, would be included the immigration officers who would no doubt have stopped him from entry into Botswana, if he had used his South African
3
passport with his known name.
According to the findings of the learned judge, on the night of the 29th of June, 1989, the appeallant went to the place where he expected some of his intended victims were staying, and under cover of darkness, he watched and waited until he had the opportunity, then shot at and wounded a man he thought was one of his intended victims. His sole
intention was to kill that man. To perfect his deed, the appellant also threw a hand grenade in the direction of the house in front of which the man shot had stood, before he, the appellant,left the scene. The grenade exploded leaving a crater in the ground and on the wall of the house but without doing further harm to the victim who had meanwhile dashed across the fence to the next house. The appellant left the scene not knowing for sure whether his victim was dead. As it turned out, the person whom the appellant thought he had killed was not the ANC member called Mmusi, but the other ANC member who was also on his list of victims called Raymond Mogale. That in law makes no difference to the offence commi t ted.
The victim had survived, but the appellant had done everything he could to perfect his intention of killing him. Raymond had sustained injury as a result of one of the two bullets shot at him by the appellant entering his thigh. The evidence of attempted murder was overwhelming. So was the evidence with respect to the charges of unlawful possession
4
of arms of war and unlawful entry into Botswana upon which he was convicted.
The notice of appeal against conviction had attacked the learned trial judge's acceptance and reliance upon the statement the appellant was alleged to have made before his trial. But apart from that ground, the other grounds which the appellant put forward were not grounds which should conce this Court. There was for example, the suggestion that as one hand-grenade and some rounds of ammunition had been recovered in his absence by the Police in the home of one Magdeline Koitsiwe, the woman with whom he had admittedly stayed in Gaborone, that woman should also have been charged with unlawful possession of arms of war. But whether a perso is charged or not is not a matter for us. What we are concerned with is whether the appellant whose appeal is befor us, was himself properly charged, tried and convicted. That somebody else should have also been charged but was not, does not make a person found guilty of an offence any less guilty. In any case, the woman gave evidence that the appellant who was at the material time her boy friend staying with her had left these items in her home, and that evidence was accepted by the trial judge.
The same point was taken by the appellant in the notice of appeal with respect to the victim of the attempted murder, Raymond, and the other ANC man, Mmusi, because in a search of their house in Gaborone, two guns had been found. Raymond,who was called at the trial as a witness, admitted
5
to the ownership of one and he said that the other gun belonged to Mmusi. But with regard to this grievance of the appellant what I said about the charging or otherwise of Magdaline Koitsiwe equally applies.
Before us, the appellant has argued that the statement attributed to him should not have been received by the trial Court, nor should the judge have relied upon it in deciding guilt. That statement contained a detailed confession of guilt with added background information on the appellant's mission to Botswana. In support of his argument, the appellant stated that the contents of the statement were a figment of the imagination of the Police. He had not said what was contained in the statement. He had only signed it because he was tortured by the Police into doing so. This was the very first time that the appellant had raised the question of duress.
It is true that the statement was made to the Police. Of the admissibility in evidence of such a statement, at the trial of its maker, section 228(1) proviso (ii) states:
"(ii) if such confession is shown to have been made to a policeman, it shall not be admissible in evidence under this section unless it was confirmed and reduced to writing in the presence of a magistrate or any justice who is not a member of the Botswana Police Force,..."
In my opinion, the requirement of the provision was satisfied in this case because after the statement had been made, the appellant was taken before Mrs Ewetse Malakaila, a Senior Magistrate stationed in Gaborone. She gave evidence
6
at the trial and said that the appellant confirmed his
statement made to the Police before her. Prior to this
confirmation, the Senior Magistrate said she asked the
appellant a series of questions to determine whether the
statement to the police was voluntary and why he wanted to
confirm it before her. The appellant gave answers which
satisfied her completely on these points.
Her questions and answers were recorded and both this recor
and the appellants statement were produced in evidence by
the Senior Magistrate. The learned trial judge asked the
appellant whether he objected to the record and statement
being admitted in evidence. The trial record* shows the
following;
"Accused; No objection. I made the statement out of my own free will. The police did not force me. I considered it waste of time to repeat what I had told the police to this woman so I asked her to read it to me. I confirmed it."
Called upon at the end of the Senior Magistrate's
evidence to cross-examine her, the trial record shows the
following:
"Cross-examination by Accused: I have no quesions to ask this witness. I made the statement voluntary. I have told you I asked the Magistrate to confirm it the corrections had been made at my instance."
When we asked in the course of the appellant's
submissions to us about the Senior Magistate's record of
questions and answers, a record which clearly shows that th
statement had been voluntarily made by him, the appellant
7
said that the Senior Magistrate had fabricated the contents of the record she took. He further maintained that the record of the trial proceedings extracted above was also a fabrication. From then on, the appellant put forward an incredible case of a gigantic conspiracy between the Police, the Senior Magistrate and the trial Court to falsely implicat him. He however, admitted that he had never made these allegations against the various personnel named prior to his appearing before us.
We are not persuaded by the appellant. The evidence in the case was solid. In our opinion, conviction on the charges presented should have followed even without resort to the statement he now belatedly disavows. All the statement does is to give confirmation of the evidence of the prosecution witnesses and to set the facts in the context of the broad mission which he entered Botswana to execute. We believe that the admission of the statement, as a confession, is unassailable. The appellant's attempt to besmirch the reputation of the Police, the Senior Magistrate and the trial Court stands discredited as beneath contempt and we reject it.
There was no real challenge to the conviction on the charges upon which the appellant was convicted other than the charge of attempted murder. There is nothing in the appeal against the convictions in this case, which we hereby dismiss.
The appellant also raised the question of his sentence
and asked us to reduce it. As I said earlier, the effective sentence was seven years imprisonment. We have said time without number that the question of sentence is entirely a matter for the discretion of the trial Court, and we, as an appellate Court, cannot disturb the exercise of that discretion unless certain well defined principles have been infringed. We will not disturb a sentence just because if we had tried the case ourselves we would have imposed a different sentence. According to the authorities, we will be able to interfere with the exercise of a trial Court's discretion if that Court has exceeded its jurisdiction in the imposition of the sentence, or exercised the discretion on wrong principles. If the trial Court takes into account matters that it ought not to have done, or does not take into account matters which it ought to have, in assessing the sentence, we may interfere. Finally, this Court will interfere if the sentence imposed by the trial Court is so disproportionate when compared with the offence committed that it induces a sense of shock in the Court. When this Court has occasion to interfere with a sentence, it may reduce the sentence or increase it. As far as the inducement of shock is concerned, the effect may be registered on us just as much by
