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Moloi v The State (Criminal Appeal No. 20 of 1995) [1995] BWCA 30; [1995] B.L.R. 439 (CA) (11 July 1995)
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1
IN THE COURT OF APPEAL OF BOTSWANA
COURT OF APPEAL CRIMINAL APPEAL NO. 20 OF 1995
IN THE MATTER OF:
LEE MOLOI
APPELLANT
VS
THE STATE
RESPONDENT
MR. ATTORNEY JOINA FOR THE APPELLANT MR. ATTORNEY U. MACK FOR THE RESPONDENT
JUDGMENT
CORAM: A.N.E. AMISSAH JP N. WYLIE JA 6.6. HOEXTER
WYLIE JA
The Appellant was convicted by the Senior Magistrate sitting
in Gaborone on two counts of receiving stolen properly contrary to section 317 (1) of the Penal Code (Cap 08:01) and three counts of armed Robbery, contrary to section 291 as read with section 292 (2) of the Penal Code. There were respectively Count l, 2, 4, 6 and 9 on the indictment and in respect of Count 1 and 2 he was sentenced to 7 years imprisonment on each count, and in respect of Counts 4,6 and 9 to 10 years imprisonment, all to run concurrently. He appealed to the High Court against both conviction and sentence. The appeal was dismissed in respect of
2 Counts 4,6 and 9 but the learned Judge consolidated Counts 1 and
2 and imposed a sentence of 5 years imprisonment, to run
concurrently. Leave to appeal was granted and the Appellant has
now appealed to this Court on both conviction and sentence.
The conviction on Counts 1 and 2 related to the possession
of a pistol and one pistol magazine loaded with 9 live rounds of
9mm ammunition, all the property of the Government of Botswana.
The property was, according to the police evidence, discovered
in the course of a search of the Appellant's house on or about
29 May 1990. The search party consisted of some six officers,
led by Senior Superintendent Mululwane (PW18). According to the
evidence of these officers the Appellant, who was in the company
of a co-accused, was informed that they were investigating a
series of recent robberies in connection with which his
involvement was suspected, and he gave his consent to the search
taking place. PW18 found the pistol inside a jacket taken from
a wardrobe in a bedroom, as observed by PW9, and both officers
maintained that the Appellant stated he had obtained the weapon
from a man called Nthima (PW24) in Ramotswa, who in turn had got
3
it from one Motsumi (PW21). Both those persons allegedly named
by the Appellant were led in evidence by the State. PW21, who was a former soldier, stated that he had stolen the pistol from the B.D.F. armoury, for which he was subsequently sentenced to 18 months imprisonment, and that he had sold it to the Appellant, who was actually in the company of PW24 when he handed it over to him. PW24 stated that he had been given the pistol and two magazines by PW21 to keep for him, and that the Appellant was present when he handed the pistol back to PW21.
The defence contention was that the Appellant had denied knowledge of the existence of the pistol, that he had been brutally tortured
by the police to extract a confession in relation to the ownership of the pistol and his involvement in the crimes being investigated but had maintained his denial and his assertion was that the pistol and ammunition had been planted in effect by PW18.
It is one of the heads of argument for the Appellant that the Magistrate had erred in convicting the Appellant on those two counts on the evidence of these two witnesses PW21 and PW24, who
4 fell to be treated as accomplice witnesses, and had failed to
address this issue in his judgment. It was of course common
cause that PW21 was indeed an accomplice witness, and the
Magistrate did not specifically record that he was dealing with
such a witness when narrating the evidence of PW21, nor did he
do so in respect of PW24. It was not decided at the trial Court
whether PW24 was an accomplice witness and the learned Judge in
the Court below reached the conclusion that he could not in fact
be so regarded. He was not a participant in the sale to the
Appellant, he was merely a bailee of the goods for PW21 and there
was no evidence to show that the witness knew that Mothusi
possessed these items illegally. There was however some force
in the contention of Counsel for the Appellant that PW24 must
have had some reason to suspect that a firearm and ammunition of
this type could not have been lawfully in the possession of a
member of the public. Be that as it may, it cannot be said that
the conviction of the Appellant on these two counts was based
essentially on the evidence of an accomplice witness or
witnesses. As is observed in the judgment of the learned judge
5 in the Court below "It is clear from the judgment of the trial
Court that it believed the evidence of PW18 and that of PW9 in
respect of the search and discovery of the pistol, the magazine
and bullets at the house of the Appellant. The trial Magistrate
reasoned that this evidence merely supports and is consistent
with the evidence of PW24. You have therefore a logical chain
of events from the delivery of the offending items at Ramotswa
by PW24 to PW21 and the Appellant." The evidence of PW18, PW9
and PW24 corroborated each other and it was confirmed by the
evidence of the admitted accomplice PW21, but the conviction
proceeded essentially on the evidence of the two police witnesses
PW18 and PW9.
Counsel for the Appellant contended that the search of the
Appellant's house which revealed the offending items was fatally
flawed by the failure of the police to comply with the provision
of section 52 (2) of the Criminal Procedure and Evidence Act (Cap
08:02) where it is provided that, in the absence of a search
warrant "such search must, as far as possible be made in the day
time and in the presence of two or more respectable inhabitants
6 of the locality in which the search is made".
This issue was raised in the grounds of appeal submitted to the Court below and the learned Judge resolved it quite briefly in one paragraph of his judgment as follows. "It has not been stated to this Court in what way the search of the house of the Appellant by the police was contrary to Section 52 (2) of the Criminal Procedure and Evidence Act and why it was irregular and unfair. The evidence shows that the search was conducted in the presence of the Appellant and his friend and with their consent. I believe the circumstances of this investigation could not have justified the further calling in of citizen spectators at the search because the police were suspicious that the Appellant carried a firearm which in fact turned up to be the case ..." He accordingly rejected these grounds of appeal.
In the Respondent's heads of argument it is submitted that there were circumstances of emergecy and/or urgency which necessitated and justified a search without either a warrant or an independent local spectator. I do not consider that there is much substance in that argument in so far as it relates to the
7 provision of the sub-section on the ground of urgency but there
may well be justification having regard to the information which
the police had in relation to the involvement and use of a
firearm in the recent series of crimes currently under
investigation. In any event, where relevant evidence has been
obtained, albeit in circumstances of technical impropriety, it
would offend against the public interest that it should be
excluded on that ground. See KURUMA vs R. 1955 AC 197 and
Section 229 (2) of the Criminal Procedure and Evidence Act (Cap
08:02) .
I turn now to consider the evidence in relation to the armed
robbery charges, which are Counts 4,6 and 9. Count 4 relates to
the robbery of a petrol attendant at the United Filling Station
in Gaborone on 20 May 1990, involving the sum of P100.00, in the
course of which two shots were fired. Two robbers appeared about
2.30 am, one of whom was wearing a mask. When they approached
the store room where the petrol attendant and security guard
(PW5) were sitting the latter attempted to shut the door but he
was fired at twice by the masked robber. He thought that he
8 recognised the Appellant as the masked man. Count 6 relates to
the armed robbery of Toyota car BE 3018 on 27 May 1990 in
M0LEP0L0LE. When one of the occupants was being dropped off
another vehicle suddenly appeared, made a "U" turn and stopped
in front of the car. One of the three occupants alighted and
ordered everyone out of the car, firing two shots at the same
time. Both vehicles were then driven off. This was about 3.00
a.m. and BE 3018 appeared at the United Filling Station in
Gaborone about half an hour later. The driver asked for P2 0.00
of petrol but before he could pay he tried to drive away with the
car. The petrol attendant grabbed the keys and ran away with
them, pursued by the driver who fired a shot at him. The driver
then took another vehicle in an endeavour to catch up with the
petrol attendant but a police vehicle appeared and the robbers
ran off abandoning BE 3018 at the station. These events relate
to Count 9. The petrol attendant (PW23) was unable to identify
at an identification parade but he did identify the Appellant in
Court as the driver of BE 3018. It is one of the heads of
argument that this evidence of identification should not have
9
been admitted but be that as it may it is conceded that no
conviction on Counts 4, 6 and 9 on that body of evidence alone
would have been competent. In respect of both the occasions
which feature in Counts 6 and 9 the Appellant had pleaded alibi
but that defence had been rejected by the Magistrate.
The critical evidence which linked the Appellant with these
three armed robberies was the recovery of the spent cartridge
cases in each instance and the examination of these cases by an
officer of the Zimbabwe Police Force named TAKANGOVADA (PW10).
He was attached to the technical branch of forensic ballistics
and described his qualifications and experience as follows: -
"I am a fully qualified armer. I have been in the Forensic Ballistics for 4 years eight months. My training in Forensic Ballistics (is) received from a British Scientist known as Mr. Pressort, and also from Chief Inspector Haley who is currently my boss. I have been giving evidence in courts of Zimbabwe for the past two years in this field. There is no college where at the end of the day one received a certificate. However as an armourer I do have a certificate. I am in the rank of Section officer in the Zimbabwe Police."
He further stated that apart from his work in Zimbabwe he also carries out examination of items submitted to him from Botswana, Mozambique and Zambia.
A two fold attack was mounted on the admissibility of the
10 opinion evidence adduced by this witness. In the first place it
was submitted that he did not hold the qualifications required
to constitute him as an expert witness. In the absence of any
contradictory evidence that an expert in ballistics required to
have qualified with a degree or other certificate the learned
Judge in the Court below accepted the position adopted by the
trial Court that PW10 was a competent witness to qualify as an
expert in this branch of armoury. He had been taught how to go
about analysing weapons, spent bullets and cartridges and he had
had considerable practical experience in that field. I have no
hesitation in agreeing with that view.
The second line of argument was that, in any event, even if
the witness was qualified to adduce opinion evidence, his
opinions and conclusion were unsupported by any facts. It is of
course essential that such a witness must speak in detail to the
facts upon which his opinions and conclusions are based. These
arguments are conveniently summarised in the judgment of
RAMSBOTTOM J. in the case of REX V JACOBS 1940 TPD 142 at
146/147, a case which involved a prosecution for driving under
11 the influence of intoxicating liquor. "Expert witnesses are
witnesses who are allowed to speak as to their opinion, but they
are not the judges of the fact in relation to which they express
an opinion; the Court ... is the judge of the fact .... In cases
of this sort it is of the greatest importance that the value of
the opinion should be capable of being tested; and unless the
expert witness states the grounds upon which he bases his opinion
it is not possible to test its correctness, so as to form a
proper judgment upon it."
In the instant case, in my view, as was the view of the
learned Judge in the Court below, the evidence of the witness
satisfied this test. Both in his formal affidavit and in his
evidence the witness gave a detailed account of how he went about
his examination of the spent cartridges, with the use of a
comparison microscope. He explained that every weapon has its
own individual characteristics. When fired certain marks are
printed on the cartridge. It could be a sticker mark or an
extractor claw mark, or a chamber mark. Even two weapons of the
same make, same type and same calibre will not make identical
12 marks on the cartridges. He examined the spent cartridges
submitted to him, compared them with each other and also with two
cartridges which he had fired live from the pistol recovered from
the Appellant's house. He identified the pistol and the
cartridge cases in Court and having found that the individual
characteristic were identical he reached the conclusion that they
had all been fired by that pistol. It was entirely a matter for
the trial Court to accept or reject that evidence. The Court did
accept that evidence and was accordingly in a position to accept
the opinion evidence of the witness. Having accepted that the
pistol had been recovered in the Appellant's possession this
evidence conclusively linked the Appellant with the events
specified in Counts 4,6 and 9. Having said that I would like to
add this. In the narration of the evidence of any expert witness
it is important that the evidence of the facts upon which the
witness reached a conclusion and expressed an opinion should be
set out in very precise detail. In the instant case, although
I am satisfied that the witness did examine each of the cartridge
cases lodged as exhibits in Court I would have liked to have seen
13 his evidence in that connection spelled out in greater detail
than was in fact done, and it may be that the most satisfactory
way in which such evidence of fact should be recorded would be
by a verbatim transcript.
Although stated in the general grounds at the end of the
Appellant's heads of argument on conviction Counsel for the
Appellant opened his appeal by submitting that the Magistrate had
erred in refusing to grant a postponement on 22 October 1990 as
applied for by the Appellant, as he had already refused an
adjournment on 13 September at the request of Counsel who had
just been instructed to act on the Appellant's behalf. In the
earlier of these two instances the request was made by Counsel
in order that he might familiarise himself from a typed record
of the evidence already led in the case. As appears from the
record evidence was led on 21 August when the Appellant was
unrepresented. The evidence of the petrol attendant in Count
6 was led but there was no identification of the Appellant.
Three other witnesses in relation to Count 6 were led but it was
formal evidence, and no question of prejudice could arise from
14 the refusal of Counsel's request for an adjournment to
familiarise himself with that evidence already led.
The refusal on 22 October of a postponement until the following day however has caused me some concern. Mr. Mantswe, the Appellant's Counsel, had been informed that he could not continue to represent the Appellant because he had been struck off the Roll. The Appellant simply asked for a postponement until the following day, without indicating any intention or desire to seek other representation. In the result the Appellant was unrepresented for the remainder of the evidence, which included such critical witnesses as PW18, PW21 and PW24. It seems to me that the Magistrate would have been well advised to ascertain whether the Appellant wished to instruct other Counsel to conduct the case on his behalf and, if so, grant an adjournment to enable him to do so. On the other hand two critical witnesses had already given evidence and had been cross-examined by Mr. Mantswe. These witnesses were PW9 (Inspector Maglass) and the ballistics expert PW10 who, as I have indicated, was the critical witness in relation to Counts 4, 6 and 9.
15 Counsel for the Respondent conceded that this was probably
the Appellant's strongest argument but submitted that, as set out
in his heads of argument, the Appellant does not state in terms
that he suffered any prejudice as a consequence of such refusal,
nor was it apparent on the record that any miscarriage of justice
had resulted. Having given careful consideration to this issue
1
have come to the conclusion that there is indeed force in these
submissions and that the Magistrate's refusal to grant an
adjournment as requested by the Appellant on 22 October did not
result in any material prejudice to the Appellant.
On the whole matter, and on a consideration of the whole evidence in the case as accepted by the trial Court, I am satisfied that there was a sufficiency of evidence to entitle the Magistrate to convict and I would accordingly refuse the appeal against conviction.
On the question of sentence, as I have already indicated, the learned Judge in the Court below consolidated Counts 1 and
2
and reduced the sentences imposed by the trial Court from 7
years imprisonment to one of 5 years imprisonment. In the heads
16 of argument on sentence it was submitted on behalf of the
Appellant that he was a young offender, aged some 23 years at the
time of the offences, and fell to be treated as a first offender.
He had derived no material benefit from the crimes, and in the
circumstances a suspended sentence would be appropriate.
Alternatively the sentence should be reduced.
I do not agree. The unlawful possession of a weapon of the
nature of the pistol which was recovered from his house, together
with live ammunition for its use, is in my view a very serious
matter indeed and the sentence imposed by the learned Judge was
entirely appropriate. Likewise the three counts of armed
robbery, in each instance involving the actual use of the weapon,
were crimes of the utmost gravity. The Magistrate's sentence of
10 years imprisonment on each count, to run concurrently with
each other and with the sentence imposed in respect of the
unlawful possession charges, was in my view properly sustained
by the learned Judge in the Court below. I would accordingly
refuse the appeal against sentence.
17
DELIVERED IN OPEN COURT THIS 11th DAY OF JULY 1995
N. WYLIE JA
I AGREE
A.N.E. AMISSAH JP
I AGREE
G.G. HOEXTER JA
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