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Pilane v The State (Criminal Appeal No. 3/95 ) [1995] BWCA 28; [1995] B.L.R. 49 (CA) (6 July 1995)
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1
IN THE COURT OF APPEAL OF BOTSWANA HOLDEN AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 3/95 In the matter of:
JOEL PILANE
APPELLANT
vs
THE STATE
RESPONDENT
APPELLANT IN PERSON
MRS ATTORNEY R. SEGOKGO FOR THE RESPONDENT
JUDGMENT
CORAM: A.N.E. AMISSAH JP J.H. STEYN JA G.G. HOEXTER JA
STEYN J.A:
Appellant, who appeared in person, is before us pursuant to
leave to appeal having been granted to him by Barrington-Jones J. He had been convicted on:
1.
a charge of housebreaking as well as
2.
on a charge of theft
in the Magistrate's Court Gaborone and had been sentenced to 4
years imprisonment on the first count and 3 years on the second. The sentences were ordered to run concurrently.
2
His appeal had been summarily dismissed in the High Court.
However, when he applied for leave to appeal to this Court
Barrington-Jones J. granted him leave. In doing so he said the
following:
"But in his present application for leave to appeal out of time to the Court of Appeal, the applicant first raises questions regarding the reception of the evidence at his trial of PW5 Samuel Molefe, who had previously been his co-accused, as follows:
The Magistrate granted permission for charges to be withdrawn against 2nd accused [Samuel Molefe] unfairly because of the [recognised] procedure that witnesses are not to enter a Courtroom in any trial before testifying. The 2nd accused was withdrawn from the trial after he had heard the evidence of four State witnesses and just went into the witness box to strengthen the evidence given by the first four witnesses. I believe the prosecutor connived with the 2nd accused to implicate me - the prosecution seeing its case in jeopardy thought of withdrawing the 2nd accused and [calling him as a prosecution witness] in order to strengthen its case; and feel that this procedure was used unfairly against me. [Thus] the 2nd accused got the chance of better denying his [involvement]. The 2nd accused cannot be termed an accomplice because he said nothing about who committed the offences, and how.
But it was explained to the applicant that the procedure adopted in his trial in withdrawing the charges against his co-accused during the trial, and for him to be called as the 5th witness for the prosecution, was permissible under our law; and drew attention to the fact that the prosecutor had properly introduced him as an accomplice witness when Molefe had been called to give evidence, and advised him that the adoption of that procedure in his trial could not be seen in all the circumstances to have been unfair to him. I further advised the applicant that whilst I did not believe that the prosecutor had connived with Samuel Molefe in order to implicate him; I was concerned at the absence of any warning by the Magistrate in his judgment of the dangers of convicting upon the evidence of an accomplice, as well as his failure to show that he had heeded such warning, by pointing to some factor which could properly be regarded as reducing the risk of convicting an innocent person. [See cautionary rule as it applied to accomplices in the judgment of Holmes JA., in S v Hlapezula & Ors [1965
3
[4] SA 439]
Moreover, whilst it was disconcerting that the learned trial Magistrate had not administered any warning at all in regard to the testimony of PW5; but in referring to such evidence in his judgment had persistently identified him as "Accused 2"; as, for example, [a] ... "According to Accused 2 however, he admitted that he rented the house in question from Accused 1" ... and [b] . . . "However, the name of Accused 2 is not Masilo, but Samuel Molefe...". And in the result find that the error in identifying the accomplice witness PW5 as Accused 2, sufficiently persuades me that the learned trial
Magistrate had clearly overlooked the fact that PW5 was in fact an accomplice witness and not an accused person when he came to evaluate his evidence, and had thus failed to warn himself of the dangers of adopting the evidence of an accomplice witness in his judgment.
I therefore conclude that the applicant probably has reasonable prospects of success in the Court of Appeal, and so grant leave to the applicant to appeal out of time against his conviction for Housebreaking and Theft by a Principal Magistrate sitting at Gaborone on the 2 9th January, 1993."
Some of the procedural complaints raised by the Appellant
appear from the above citation of the evidence. However it will
be necessary to repeat some of these in a brief restatement of
the facts and of the events which took place at the trial.
The charges on which the Appellant and his erstwhile co-
accused, one Samuel Molefe (Molefe) were indicted in the trial
Court arose from the theft of certain poles from the yard of the
complainant (PW1) and shortly thereafter the theft of some more
poles. This latter incident was accompanied by a breaking into
the hut of PW1 and the theft of certain articles detailed in the
charge - including a trunk - (most disconcertingly and
4 confusingly, repeatedly referred to in the evidence as a
"truck".) These events took place in the latter half of March
1992.
On the 27th of July 1992 the complainant was informed that
"there were some items that were recovered in Mochudi." He went
to a place in Mochudi where he identified some 28 poles and the
said trunk. Inside the trunk were certain articles - including
dishes - that he identified as his property. At a second place
in Mochudi he identified some more poles, 32 in number as his
property. On the first occasion that he did so he was
accompanied only by the police. When next he was called upon to
identify his property he did so in the presence of the Appellant.
His evidence as to what happened next, reads as follows:
"In response Accused No 1 (Appellant) said that those items belonged to a certain person by the name of Mr. Molefe who stays in Malulwane Village."
According to the witness Molefe was then arrested by the police and he (the witness) identifies Accused No 2 - as he then was - as the person concerned. This accused in turn said that "those items did not belong to him, but they belong to Joel Pilane i.e. Accused No 1."
5 It should be noted that the State then led the evidence^one
Thethi Porogo (PW2) that the said Molefe stayed alone at
Appellant's "place at Moseja Ward in Mochudi" (the house where
some of the poles and the trunk and its contents were found.)
Appellant stayed with her "at my yard" (where the rest of the
poles - some 28 or 29 were found.) The witness also said that
she had seen the same poles at the Appellant's place in December
the previous year i.e. 1991. She also said that Molefe (then
still Accused No 2) had been with Appellant when he had brought
the poles to her house.
Two further State witnesses were called. The second of these gave evidence confirming that of the complainant. More particularly he identified some of the goods found in the house owned by Appellant and occupied by Molefe as well as the poles as the property of the complainant.
At this stage the prosecution applied to withdraw the charges against Accused No 2 as the State would like to call him as an "accomplice witness".
The record does not reflect that any reasons for this
6 application were advanced or that the Appellant was asked whether
he had any objection to this procedure. All that appears on
record is the following:
"Application granted.
Charges of Count 1 and II against Accused 2 be withdrawn and he (Accused 2) be discharged."
The case was adjourned for some three weeks and upon its resumption Molefe - the former second accused - was called as PW5. He admitted
to being the tenant of Appellant's house but alleged that from the time he rented the house in May he saw a blue trunk, some plates and the other utensils identified by PW1 in the house.
Further evidence was led by the State - some of it in relation to the theft of a gate - on which charge the Appellant was acquitted - some of it police evidence, directed at confirming the complainant's evidence, some of it relating to contradictory statements allegedly made by the Appellant to the investigating officer.
The Appellant gave evidence. He denied the charges. Concerning the trunk he alleged that he had no knowledge of it,
7 that as far as he was concerned it belonged to Molefe who had
been renting his house since early April 1992. The poles he had
brought from one "Bashi" . He had discovered upon enquiring that
Bashi's surname was "Tomeletso" and that he stayed in Palapye.
He also gave information to the police concerning the name of
Bashi's.girl friend through which he believed he could be traced.
She (the girl friend) was known as "Stoped", her real name
"Naniso" and her surname was "Ratokwana". He averred that the
police had failed to follow up the information he had given them.
In cross-examination the Appellant expressed the view that the police had conspired with Mr Molefe to implicate him.
Appellant in his argument complained about the procedure adopted in the trial Court. His contentions were that:
1.
Molefe was an accomplice but had not been warned by the Magistrate as he should have been;
2.
The trial Court had failed to apply its mind to the fact that Molefe was an accomplice and that his evidence should be treated with the requisite caution - and
3.
The trial Court erred in allowing the State to withdraw the charge against Molefe and to call him as a witness after four State witnesses had already given evidence in his Molefe ( Molefe's) presence.
I interpret his complaint under this last heading to mean
that the opportunity to tailor his evidence (if false) to fit the
8 facts, would be considerably enhanced by Molefe having had the
advantage to hear the essential features of the State case before
himself testifying.
All these contentions have some merit. It may not have been clear on the evidence before the Court a quo that Molefe was indeed an accomplice. However, the Court had to assume that the State was in possession of some evidence implicating him in view of the fact that they deliberately joined him as an accused. (Originally the Appellant was the sole accused.) There is also the evidence of PW2 that Molefe was present when Appellant brought the poles to her. If these poles were indeed the ones stolen from the complainant, then Molefe's presence at the time of delivery to PW2 is at least susceptable of the inference that Molefe was implicated in the theft. There is also the fact that at least for a few months the other stolen property had been in the house occupied by Molefe as a tenant.
In these circumstances three matters seem to me to require comment. Firstly, it seems to me to have been imprudent for the State to have withdrawn the charge against Molefe and then to
9 call him as a witness at the stage in the proceedings at which
they did. I say it is unwise for two reasons. Firstly, it
seriously jeopardised the credibility and the reliability of his
evidence because of the fact that he had through the process
adopted by the State - and sanctioned by the Court - every
opportunity to get to know every detail of the State case and to
mould his evidence to accord with the testimony of the
complainant and the other confirmatory witnesses. This unusual
proceeding is compounded negatively by the fact that the State
knew from the very beginning of the investigation that the
Appellant had implicated Molefe as the true culprit. Whilst
therefore it was not per se irregular to act as the State did -
See REX V. MAGQONSHOLO AND OTHERS 1948 (2) S.A 222 (E) AT 225 -
it was in all the circumstances unwise to have done so.
The second matter to which I wish to refer concerns the impact this process was bound to have on an accused particularly one who was - as the Appellant in this case unrepresented.
He sees the State charge Molefe as a co-accused and sees a
10 joinder of issue between the State on the one hand and the two
of them on the other. The trial proceeds and evidence is led
implicating both of them. Then, midway in the proceedings and
without advancing any reason for doing so, the State not only
withdraws the charge against his co-accused but calls him as a
witness against the Appellant. The Court without enquiry or
reference to him also then proceeds to sanction this procedure.
Thirdly, having become a party to such a process the Court proceeds to convict, refers to and apparently relies upon Molefe's evidence without any reference to the fact that he had every conceivable motive to mislead, falsely implicate Appellant and exculpate himself.
If the other evidence against the Appellant were overwhelming , it is possible that a Court may have been persuaded to regard the failure to adopt a cautionary approach as insufficient to vitiate the proceedings. It would, I believe however, require cogent argument to persuade a Court to do so. It is clear from the facts set out above however that the State case was far from convincing.
11
As Mrs Segokgo for the State quite correctly conceded, there were only two incriminating features that could buttress the State case. These were the admitted possession of the poles in question by the Appellant and the disputed possession of the trunk and its contents found in the house occupied by Molefe and owned by Appellant.
As far as the poles are concerned two of the State witnesses positively identified the poles in question as items belonging to the complainant. However, the evidence indicates that the poles are commonplace, uniform products with no identifiable features which could distinguish them from other like products. From the record it does not appear that the complainant was able to point out any distinctive features to the Court. Then there is also the evidence of PW2 that she had seen the poles in the possession of Appellant as early as December 1991, the complainant's evidence being that the theft took place some time in March 1992.
It would be a remarkable coincidence if the number of poles found in the possession of the Appellant was similar - indeed
12 nearly identical - to those recovered from the Appellant. It is
passing strange however that complainant should have known
exactly how many poles had been in his possession at the time.
The suspicion that he may have ex post facto, albeit innocently,
reconstructed this part of his evidence cannot be readily
rejected. A Court properly instructed would in these
circumstances have been loath to convict on the evidence before
it.
I have in this regard not overlooked the distinctly suspect
version of the Appellant as to how he came into possession of the
poles. However, on his evidence he made efforts to find the
seller, gave the police his full name and other information
through which he could be traced. It is true that this evidence
was not put to the police officer in question as it should have
been. However, Appellant was unrepresented, and if this evidence
was false the State could have applied to lead evidence in
rebuttal to refute it. It did not do so. In these circumstances
- and bearing in mind the onus resting on the State, the evidence
concerning the possession of the poles is not of such a damning
13 nature, that it can be held to tip the scales in favour of the
State.
The trunk and its contents were unquestionably identified by the complainant as his property. The question to be answered is, did the State prove that the trunk was in Appellant's possession? It must be borne in mind that Appellant was not the occupier of the house in question. On his version very shortly after the theft took place, Molefe occupied it continuously and, it is common cause, was still in occupation at the time of its recovery. The only person who can link Appellant with the possession of the trunk is Molefe himself. He is not only a person who is sufficiently implicated in the matter for the State to charge him, but ultimately, in the tainted circumstances described above, to call him as an "accomplice witness". He is also the person whom the Appellant immediately upon confrontation identifies as the probable owner.
In my view, and even if this Court were not to regard the unwise procedure followed by the State and sanctioned by the Court as an irregularity vitiating the proceedings, these facts,
14 coupled with the many unsatisfactory features inherent in the
evidence outlined above, convinces me that the conviction is
flawed.
I would sum up as follows:
1.. The procedure by which the State sought successfully
to withdraw the charge against Appellant's co-accused
midway through the State's case and to call the latter
as a witness against the Appellant was most unwise.
This is the more so in view of the fact that -
(1)
The co-accused had been present in Court whilst highly relevant and incriminating evidence was given which would have facilitated
the capacity of the co-accused concerned to tailor his evidence to implicate the Appellant and to exonerate himself.
(2)
The Appellant, who was unrepresented, had from the very moment of being accused, identified Molefe as the probable culprit and had
every reason to question the fairness of the
(1)
15 proceedings. In my view he had reasonable
grounds for believing that he had not been justly-tried.
(3)
The trial Court had failed to consider the significance of the imprudent process or to caution itself against the risk of an uncritical reliance upon the testimony of the former co-accused.
(4)
The evidence as a whole was of such an unsatisfactory nature as to render it unsafe to convict.
For these reasons the appeal succeeds and the convictions and sentences are set aside.
DELIVERED AT LOBATSE IN OPEN COURT THIS 6TH DAY OF JULY 1995
STEYN J.A.
16
I AGREE
AM1SSAH J.P.
I AGREE
HOEXTER J.A.
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