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Mokgosi v The State (Criminal Appeal No. 16 of 1994) [1994] BWCA 21 (14 July 1994)
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IN THE HIGH COURT OF BOTSWANA
HELD AT LOBATSE
CRIMINAL APPEAL NO. 16 OF 1994
HIGH COURT CRIMINAL APPEAL NO. 118 OF 1993
In the matter of:
MAGOGWE MOKGOSI
Appellant
and
THE STATE
Respondent
Appellant in person
Miss P. Kupe for the State
JUDGMENT
CORAM: W.H.R. SCHREINER J.A. LORD D. BRAND J.A. P.H. TEBBUTT J.A.
SCHREINER J.A..
The Appellant was granted leave to appeal when the Court raised the issue of an apparent difference between the offence with which the Applicant was charged and the verdict of the Magistrate.
From the charge sheet in the record on appeal it appears that the offence alleged to have been committed was:-
"Resisting arrest contrary to section 249 (b) of the Penal Code."
The particulars of the offence alleged that he resisted arrest on the 22nd February at a specified place in the Central Administrative
District.
The Magistrate, however, convicted him of "assault of a Police Officer contrary to section 249 (b) of the penal code Cap 08:01."
Section 249 (b) of the Penal Code contains a number of separate offences. A person who "assault, resists, or wilfully obstructs any police officer in the due execution of his duty, or any person acting in aid of such officer" is guilty of an offence and is liable to imprisonment for a term not exceeding five years. The facts to be proved are different in the case of
2
each offence so that to charge with one of these offences and to convict upon
another is clearly irregular. The purpose in formulating a charge is to give
to the accused person notice of the matter upon which he has to defend himself
and of the offence of which he may be found guilty. A verdict which goes
outside the ambit of the charge frustrates that important purpose.
Miss Kupe has examined the record in attempt to discover how the
discrepancy between charge and verdict arose and has drawn the attention of
the Court to the opening paragraphs of the judgment of the Magistrate. I
reproduce the relevant parts:
"The accused Magogwe Mokgosi faces charge of Rape contrary to section 141 as read [with] 142 and of assaulting a Police Officer in execution of duty contrary to section 249(b) all under the Penal Code Cap 08:01.
Charge initially preferred (in count II) was of resisting arrest contrary to section 249(b) of Cap 08:01. The case was registered on 19th March 1993 and plea of not guilty entered. Trial commenced on the 31st March, 1993 and plea of not guilty entered. Ruling that accused had a case to answer was made on the 8th April, 1993."
It would seem from the above passage that something occurred during the course of the trial which led to an amendment of the charge so as to delete the allegation of resisting arrest and to substitute one of assaulting a police officer. Why that should have been done is not clear because, on the facts as deposed to by the State witnesses, the Appellant did in fact resist arrest and the sentences to which the Appellant could have been subjected were the same for either offence.
Section 149(1) of the Criminal Procedure and Evidence Act provides for the amendment of a summons in certain circumstances i.e. if
there appears to be a variance between the statement therein and the evidence or if any words or particulars that ought to have been inserted have been omitted or that any words or particulars that ought to have been omitted have been inserted or that there is any other error in the summons. The Court may then order that
3
the summons should be amended so far as may be necessary, provided that it
considers that the making of the necessary amendment will not prejudice the
accused in his defence. The amendment is to be made on such terms (if any)
as to postponing the trial as the Court thinks reasonable [sub-section (2)].
Section (3) provides:-
"The fact that an indictment or summons has not been amended as provided in this sub-section shall not, unless the Court has refused to allow the amendment, affect the validity of the proceedings thereunder."
The problem in the present case is that the circumstances under which any amendment was made [if there was an amendment] do not appear from the appeal record. All that is known is that the charge was at some stage framed as one of resisting arrest and the Magistrate at the time of his judgment considered the case to be one of assaulting a police officer.
Whether the charge was altered before there was a plea or after and whether the Appellant was present when the amendment was made and was given an opportunity to address the Court on the matter and whether there was indeed
a formal application to amend are all matters which should appear on the record so that a Court on appeal may consider whether or not it was competent. For example it would be arguable that section 149(1) would not entitle the State to move for an amendment of a charge to allege a completely new offence even though it is one which happens to appear in the same sub-paragraph of Section 149 of the Penal Code.
As far as the effect of sub-section (3) of the Criminal Procedure and Evidence Act is concerned> I think that the significant words are "as provided in this subsection". This would refer to the procedure laid down in sub-sections (1) and (2), and it would not prevent a Court on appeal from going into the question of whether, for example, the Court a quo wrongly found that the accused would suffer no prejudice as a result of the grant of the amendment or was not entitled to a postponement or that
the period of
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postponement granted was too short or the conditions Imposed were not stringent enough. The purpose of the sub-section was to put
an end to any argument that all Irregularities In amendment proceedings Invalidates the trial henceforth.
In all the circumstances I think that the appeal must be allowed and the conviction quashed and the sentence set aside.
DELIVERED IN OPEN COURT AT LOBATSE THIS 14TH DAY OF JULY. 1994.
W.H.R. SCHREINER JUDGE OF APPEAL
I agree
LORD D. BRAND
JUDGE OF APPEAL
I agree
P.H. TEBBUTT
JUDGE OF APPEAL
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