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Lesaso v The State (Criminal Appeal No. 13 of 1994 ) [1994] BWCA 14 (13 July 1994)
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1
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CRIMINAL APPEAL NO. 13 OF 94
(High Court Criminal Committal No. 22/93
In the matter between:
GEOFFREY LESASO
APPELLANT
Vs
THE STATE
Mr K.P. Siele for the Appellant Mr. J Moutswi for the State
JUDGMENT
CORAM: T.A. AGUDA, JA
P.H. TEBBUTT, J.A. LORDW.L.K. COWIEJ.A.
TEBBUTT. J.A..:
The appellant was convicted in the Magistrate's court of Gaborone of the offence of obtaining by false pretence, Contrary to Section 308 of the Penal Code, a quantity of liquor itemised
2 in the charge sheet and valued at P73,190.24, the property of
Segwana Liquor Distributors (Segwana). He was committed for
sentence to the High Court in terms of section 295 of the
Criminal Procedure and Evidence Act and there sentenced by
Gyeke Dako J to four years' imprisonment, of which two years
were suspended for three years on condition that during the
period of suspension he was not convicted of an offence of which
theft or fraud is an element. He appealed to this court against
both his conviction and sentence.
After hearing argument on behalf of the appellant, this court dismissed the appeal on both the conviction and sentence and intimated that it would file its reasons for so doing later. These are the reasons.
The appellant was originally charged jointly with two other persons on three counts:-
1.
Theft of a Botswana Government Purchase Order (GPO) No. 189948, then under the control of the Ministry of Education in contravention of Section 271 of the Penal Code;
2.
Uttering a false document, namely the GPO which had been forged, in contravention of Section 248 of the Penal Code and;
3.
Obtaining by false pretences, contrary to Section 308 of the Penal Code.
1.
3 At the trial in the Magistrate's Court, the appellant was
the second accused. The first accused was one William Moseki to
whom I shall refer as Accused No 1. The Third Accused absconded
during the trial.
The evidence of the State which was accepted and believed by the Magistrate can be briefly summarised. It is this. The liquor in question was obtained by the use of a stolen and forged GPO viz GPO No 189948. There was no evidence to link the appellant with the theft or forgery or uttering of the GPO, hence his acquittal on those charges. It was, however, undisputed that on 30 August 1991 Accused No 1 went to Segwana with the GPO and on the strength of it obtained the liquor. He did not then take away the liquor but on 3 September 1991 he and appellant returned to Segwana with a truck which Accused No 1 had hired. Part of total quantity of liquor was loaded on to the truck and checked out of Segwana's premises by a security checker to whom the invoice for the purchases were given by appellant. The following day appellant, with certain others, collected the remaining liquor.
Some of the liquor was stored at the house of one Monana Masie at Mogoditshane. Her evidence was that on 3 September 1991 she went to appellant's home at about 7 am to collect some money owed to her. While there appellant asked her to allow him to
4
store some goods in a vacant spare room at her house, to which
she agreed. Appellant collected the keys to the house from her at about 2 pm and returned them at about 5 pm. When she got home at about 5 pm she found a large quantity of liquor in her spare room. None of this evidence was challenged in cross-examination of Masie. At between 7 and 8 pm that day appellant came to her house with Accused No 1. In the presence of Accused No 1 she asked appellant to whom the liquor belonged who replied that "it belonged to a colleague of his". He did not say that it belonged to Accused No 1 nor did Accused No 1 claim ownership of the liquor. Two or three days later appellant obtained the keys of her house from Masie who then found that a substantial portion of the liquor had been removed. More was removed another two or three days after that.
The State also called one Thuto Mokgwathi who testified that in September 1991 appellant approached him at his office at the Institute of Development Management and said that he had a consignment of liquor left over from a function which he wanted to sell. Appellant knew that he owned a Bar and Bottle Store. He bought 138 cases of beer from appellant to whom he paid about P3000.00.
Appellant's case was that at all times he was acting as an agent for, and on the instructions of, Accused No 1, whom he knew
5 to own a Bar and Bottle Store at Mokatako. He said he collected
the liquor on behalf of Accused No 1 who told him he had storage
problems. As a result he went to Monana Masie and asked her for
the use of her spare room. As to the sale of the beers to Thuto
Mokgwathi the appellant told the court that he was at a party
thrown by Accused No 1 at which Mokgwathi was present. After the
party "some beers were left over and Thuto offered to buy them
because he had a bar at Mmamashia". This version was never put
to Mokgwathi in cross-examination.
The Magistrate rejected the evidence of appellant as being false. He found appellant had acted in concert with Accused No l and that
the State had proved beyond reasonable doubt that appellant knew that the liquor had been obtained by false pretences and that he
was a party to an intent to defraud.
At the appeal before us Mr. Siele, for the appellant made two main submissions. They were:
(a)
That the evidence did not support the charge against the appellant; and
(b)
That the Magistrate wrongly rejected the evidence of the appellant and should have found that his version that he acted as the agent
of Accused No l was reasonably possibly true.
As an afterthought Mr. Siele also contended, in a point not
6
raised in his heads of argument, that having been acquitted of
uttering a false document, appellant could not in law be
convicted of making a false representation based on that
document. Mr Siele could cite no authority for this startling
submission nor indeed could he have. There is no substance in
it and it can be rejected without further comment.
As to his first main point the charge on the count on which
the appellant was convicted reads as follows:
"The three accused on the 30th day of August, 1991, at Segwana Liquor Distributors in Gaborone Administrative District, with intent to defraud, obtained liquor amounting to P73,190.24 by false pretences by presenting a false Government Purchase Order No 189948 to the Segwana Liqour Distributors, purporting to have been issued by the Ministry of Education when they knew that it was false and unlawfully obtained."
Referring as it does, to the "three accused persons" and that "they" knew that the GPO was false, the charge is
clearly wide enough to encompass a common purpose between them and to justify a finding that they acted in concert. If the appellant therefore knew, or if the inference from all the evidence is that he must have known, that Accused No 1 used the false GPO to obtain the liquor, he could rightly be convicted on the charge as framed.
The Magistrate found that such an inference could be drawn from all the evidence. Before passing sentence on the appellant, Gyeke-Dako J. confirmed that finding. He said,
7 "I have read through the record of proceedings and I
am satisfied that the conviction of the accused is
well grounded. There is indeed ample evidence to
justify the conviction."
I agree with the Magistrate and with Gyeke-Dako J.
I can also find no substance in Mr. Siele's submission that the Magistrate wrongly rejected the appellant's evidence as being false. Quite apart from the well-known principle that a court on appeal will only upset a trial court's finding on fact where it is satisfied that that court's finding is clearly wrong. I am of the view that the Magistrate's finding was clearly correct. The appellant was obviously a lying witness. As pointed out by the Magistrate, appellant stated in his evidence that he came to know of the storage problems in regard to the liquor "after the goods were loaded* this was in the afternoon." This is in direct contradiction to Masie's evidence that appellant asked her at 7 am that day if he could store the liquor at her home. Masie as stated earlier, was never challenged on this. Moreover the truck on which the liquor was loaded was only hired at 10 am on the day in question. The appellant's evidence as to how Mokgwathi bought the beers is also contradicted by the latter, who was never challenged on the fact that appellant came to his office to offer
8
to sell the beers to him. Appellant, furthermore, said he had
only been to Segwana once. All the evidence, again not disputed, was that he went there twice. He also never told Masie that Accused No 1 was the owner of the liquor stored at her house which would have been his obvious response had/been acting on behalf of Accused no l who was present at the time, but instead he sought to keep this fact from her.
The appellants' reluctance to say that the liquor was that of the Accused No 1; his arranging for storage prior to the hiring of the truck and prior to the liquor being loaded; his arranging for the sale of the liquor to Mokgwathi; and finally, the damning fact, in my view, that P73,190.24 worth of liquor was loaded on a large truck by appellant when, on his own submission, he knew that the appellant's bar was small and that on previous occasions when he was with Accused No 1 when he bought liquor the latter had bought only P5000.00 to P8000.00 worth, all point inexorably, quite apart from his mendacity, to the appellant's guilty state of mind in his participation in the transaction.
For these reasons this Court came to the conclusion that the appellant had rightly been convicted and that his appeal against his conviction must fail.
As to the sentence, Mr. Siele quite correctly chose not to advance any submissions in regard to it. The sentence was,
having regard to the circumstances of case - even though the appellant is a first ooffender- an eminently fair one. The appeal against it, too, was therefore dismissed.
DELIVERED AT THE COURT OF APPEAL, LOBATSE, THIS 18TH DAY OF JANUARY, 1995.
P.H. TEBBUTT
JUDGE OF APPEAL
I agree
T.A. AGUDA
JUDGE OF APPEAL
I agree
LORD W.L.K. COWIE
JUDGE OF APPEAL
1
IN THE COURT OF APPEAL OF BOTSWANA
COURT OF APPEAL CRIMINAL APPEAL NO. 13 OF 1994
In the matter of:
GEOFFREY LESASO
APPELLANT
AND
THE STATE
RESPONDENT
MR. ATTORNEY H.T. NALEDI FOR THE APPELLANT MR. ATTORNEY L. Z. NGCONGCO FOR THE STATE
RULING
CORAM:
T.A. AGUDA, J.A.
P.H. TEBBUTT, J.A. D.W.R. BRAND, J.A.
T.A. AGUDA. J.A.;
Mr Naledi, we have listened to your explanation. We are far from being satisfied from what you have said. We take very serious view of your conduct. Even from the facts as you have related them, you are clearly in gross dereliction of your duties to this Court and also to your client. However, we do realise that you have accepted your own fault and you have at the same time apologised profusely to the Court. You have made a promise that such conduct will not be repeated. Therefore, we have decided simply to reprimand you seriously this time. In case of any repetition of such conduct we may make a report to the Attorney General for appropriate disciplinary action. Meanwhile, we know that you have promised that such conduct will not be repeated; therefore it would be the last warning to you. It ought to
be known to all members of our profession that we are officers of the Court and must at all times discharge our duties
faithfully, courageously and to the best of our knowledge and ability.
That will be all that we can say at the moment. We accept your suggestion for postponement of this appeal and the appeal is therefore postponed to next session.
DELIVERED IN OPEN COURT THIS 13TH DAY OF JULY 1994.
T.A. AGUDA JUDGE OF APPEAL
I AGREE:
P.H. TEBBUTT JUDGE OF APPEAL
I AGREE:
D.W.R. BRAND JUDGE OF APPEAL
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