You are here:
SAFLII >>
Databases >>
Botswana: Court of Appeal >>
1994 >>
[1994] BWCA 18
[Database Search]
[Name Search]
[Recent Decisions]
[Noteup]
[Help]
Maiketso v The State (Criminal Appeal No. 21/94 ) [1994] BWCA 18 (14 July 1994)
.PDF of original document
.RTF of original document
IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Criminal Appeal No. 21/94 High Court Criminal Appeal No. F90/93
In the matter of:
JOHN MAIKETSO
Appellant
v.
THE STATE
Respondent
Appellant in person
Miss P. Kupe for the State/Respondent
JUDGMENT
Delivered on July, 1994.
CORAM: A.N.E. AMISSAH J.P. J.H. STEYN J.A. P.H. TEBBUTT J.A.
STEYN J.A.,
Appellant was convicted on a charge of rape in the Subordinate Court of the First Class for the Selibe-Phikwe Administrative District. He was sentenced to undergo imprisonment for 5 years and to receive three strokes. He appealed to the High Court where his appeal was dismissed. However, the High Court granted him leave to appeal. He appeared in person before us to prosecute his appeal.
The only defence pursued by him in his grounds of appeal and in argument was an alibi. He alleged that he could not have committed the offence in view of the fact that he was in jail at the time the complainant was raped.
This defence cannot be sustained. I say this for the following reasons:-
1. Complainant was raped during the early hours of the morning of the 4th of December, 1992. She was unable to identify the two persons who raped her.
2
However, she was able to name a third person who accompanied her assailants, one Bushi. The latter when questioned by the police implicated Appellant and one Gaethusi, who were both arrested.
Appellant, who is, judging by his record no stranger to Court proceedings, at no stage during a lengthy cross-examination of Bushi asked any questions consistent with a version that he was not present at the scene or that he was in custody at the time.
2.
The investigating officer, one Detective Sergeant Nthaudi questioned
Appellant after his arrest. He says that Appellant informed him that the
complainant had been with Gaethusi referred to above, on the date in question.
Appellant also told the witness that he "met Gaethusi forcing Tshwaro (the
complainant) to go with him to New Stands. He said this was at around 12:00."
He added that Appellant "denied having had intercourse with Tshwaro by force."
At no stage of his cross-examination of this witness did Appellant challenge him (the witness) concerning his (Appellant's) admission that he was present at the scene at the relevant time and that he had some knowledge concerning the events that took place.
3.
What did emerge however was that Appellant was arrested on the 8th of December after the police had received the information concerning his alleged involvement from Bushi on the 6th of December. According to Sergeant Nthaudi's best recollection, Appellant was arrested when he came to report himself at the police offices in connection with another matter on the 8th of December.
4.
It was only when he gave evidence that he for the first time raised the defence referred to above.
Whilst therefore the Court will always allow an unrepresented accused a great deal of latitude in relation to the manner in which he presents
his defence before drawing adverse inferences, such indulgence has its
limitations. More particularly in the light of the unchallenged evidence of the police officer concerning Appellant's admissions placing him on the scene and the former's confirmation of Appellant's arrest only after receipt of Bushi's information on December 6, I believe that the Magistrate was right on the evidence before the Court to have convicted Appellant.
Whilst therefore it might have been prudent to have recalled the investigating officer to confirm that the police records did not substantiate Appellant's contention, I am not of the view that in the light of the unchallenged testimony before the Court any failure of justice resulted.
No argument was addressed to us on the question of sentence and no grounds for interference are apparent. I would dismiss the appeal and confirm the conviction and the sentence.
Delivered in open court at Lobatse this 14th day of July, 1994.
J.H.STEYN
JUDGE OF APPEAL
ATlHfTlWSSAH-—_ JUDGE PRESIDENT ^-
P.H. TEBUTT JUDGE OF APPEAL
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1994/18.html
