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Huma v The State (Criminal Appeal No. 35/95 ) [1996] BWCA 15; [1996] B.L.R. 40 (CA) (2 February 1996)
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IN THE COURT OF APPEAL OF BOTSWANA
HOLDEN AT LOBATSE
Criminal Appeal No. 35/95
High Court Criminal Appeal No. G(B) 86/94
In the matter between:
GABRIEL HUMA
Appellant
v.
THE STATE
Respondent
The appellant in person
Mr. S. Tiroyakgosi for the Respondent
JUDGMENT
Delivered on .... 1996
CORAM; T.A. AGUDA J.A
P.H. TEBBUTT J.A G.G. HOEXTER J.A
HOEXTER J.A.,
On 2 7 July 1994, and at Gaborone, the appellant, as accused No.2, and one Roddy Mbalati (to whom reference will be made as "Mbalati") as accused No. 1, were each found guilty by a Senior Magistrate of the following offences:-
Count 1: robbery;
Count 2: unlawful possession of arms;
Count 3: unlawful possession of ammunition. Each was sentenced as follows:-
Count 1: nine years imprisonment reckoned from the date of his arrest on 28 March 1992;
Count 2: a fine of P200;
Count 3: a fine of P200. Payment of the fines was suspended for two years on condition
2 that the accused be not convicted of any offence involving unlawful possession of an arm or ammunition committed within the period of suspension.
Against the aforesaid convictions and sentences the two accused appealed unsuccessfully to the High Court. Although Gaefele Ag. J granted leave to appeal to both accused, only the appellant noted an appeal to this Court. The appellant argued his appeal in person. He has an excellent command of the English language and he argued his case on the merits thoroughly and with considerable forensic ability. The State's case was argued by Mr. Tiroyakgosi who had been the prosecutor in the trial court.
On the day on which the two accused were arrested (28 March 1992) three men, acting in concert, carried out an armed robbery at the Broadhurst branch ("the bank") of the Standard Chartered Bank in Gaborone. Very shortly after the robbers had made
their escape from the bank, and at places in the immediate vicinity of the bank, first the appellant and then Mbalati were separately set upon and injured by a crowd of people.
While driving a police motor vehicle Sergeant Makuke (PW6) of the Botswana Police Force came upon the appellant at the Woolworths Shopping Centre when the appellant was being stoned by a mob. The appellant was holding a hand-gun. According to the testimony of PW6 the appellant tried to get into the police car, but he was pulled back and beaten by his attackers. At this juncture the appellant dropped the hand-gun (exh "A") and a knife fell from his pocket, whereupon PW6 took possession of
both these weapons. The appellant was saved from the mob by a mobile police patrol which arrived at the scene. In the course of the assault
3 upon him the appellant had sustained serious injuries. PW6 took him to hospital in the police van.
On the day of the robbery Montshwari Makobe (PW9) was employed as security guard by a chemist shop close to the bank. PW9 saw Mbalati being chased by people. Mbalati was armed with a firearm which he fired twice. PW9 caused Mbalati to fall by tripping him, and he then overpowered him. Having enlisted the help of bystanders PW9 disarmed Mbalati; and he later handed the firearm (exh "C") to Sub-Inspector Dubani (PW7) of the C.I.D.
Having received a report of the robbery PW7 rushed to the bank. There he found Mbalati; and he was informed that the other suspect had already been taken to hospital. From PW9 he received
a pistol (exh "C") in the magazine of which he found five cartridges. PW7 questioned Mbalati but "he said he knew nothing." PW7 proceeded to search Mbalati and found car keys in his possession. Mbalati led PW7 to a van parked some 2km from the bank. PW7 was able to unlock the van with the car key found on Mbalati. Underneath the front passenger seat of the van PW7 discovered a white plastic bag which contained a pistol (exh "E") loaded with six rounds. Mbalati was detained in custody.
Upon the appellant's discharge from hospital, so testified
PW7, he interrogated both accused. During his examination-in-
chief PW7 gave the following account of the explanations given
to him by the two accused:-
"They were asked about the robbery but they denied knowledge, They failed to explain how .... the pistol (exh "E") which was found in the car (the van) got in there and they even failed to explain how they came to be in possession of those guns (exhs "A" and "C") and how or what they were doing in the bank."
4
To complete that part of the narrative which deals with those events which, shortly after the robbery within the bank, were observed outside the bank and in its vicinity, there should be considered next the evidence of Bushi Phoi (PW5) , a female secretary at the bank.
At a spot which she described as "outside the office" PW5 came across Mbalati. He was being hit by members of the public, and he was bleeding. She was unable to gain entrance to her office and, as a result of a report which was made to her, PW5 took up a waiting position at the gate in the parking area at the back of the bank. After some minutes there emerged from the back door of the bank a man whom she identified as the appellant by pointing him out in the dock. The appellant was carrying what PW5 described as "a bucket" which was made of plastic and which was orange in colour. Exhibit "B" (a container
to which further reference will be made later in this judgment) was shown to PW5, and she identified this exhibit as "the bucket" carried by the appellant.
According to PW5 she was able to see the appellant's face -
"He had nothing on his head. I mean there was no mask, there was nothing."
PW5 testified that the appellant went to the back of the parking area. He was pursued by members of the public who threw stones at him. The appellant threw down the bucket and changed his direction. Members of the public still followed him. The appellant fell down and then he started shooting. PW5 told the court that she picked up the bucket next to which there was some money. The bucket and the money was taken to the office by one
5 of her seniors.
Here there should be noticed a discrepancy in the evidence of PW5. Her cross-examination by the appellant was interrupted by the trial court's inspection-in-loco of the area at the rear of the bank. Before this inspection PW5 had told the court that, from her point of observation at the gate, she had seen the appellant emerging from the back door of the bank. Although the trial court omitted to incorporate as part of the record of the trial proceedings its observations at the inspection-in-loco, it is a ready inference from the further evidence of PW5 that at the inspection it became apparent that from her position at the gate PW5's view of the bank's back door would have been obscured. Upon the resumption of her cross-examination by the appellant PW5 said that in this respect her earlier evidence had been mistaken, and that in truth she had not actually seen the appellant stepping out of the back door of the bank.
How the robbers gained entry to the bank was described by an employee called Martha Motshwarakgole (PW1). She arrived at the bank on the morning in question before any other employees. After the security guard had opened the gate for her she walked through the parking area to the main back door which she unlocked. Having entered herself she tried to close this door when three robbers slipped in before she could do so. Their faces were masked in pantyhose. One of them remained at the door; the second moved about the office; and the third robber pointed "a small gun" at her. Three handguns were then shown to PW1, and she said that exh "A" might be the one in question. The third robber told her that they wanted money, and inquired
6 after the key to the safe.
The third robber escorted her to her desk. He asked her to lie down in the passage. Upon the arrival of the bank teller Phana Mokgware (PW3) and another employee the third robber questioned PW1 as to the name of the bank manager, Mr. Botana (PW2) , and the car driven by him. Most of the staff members were coming in and they were likewise made to lie down.
Then the manager (PW2) came in. He was bleeding behind the ear. The third robber asked him to open the safe. The safe key was found and the safe opened. At the request of the third robber PW3 brought in a plastic orange coloured "dustbin" into which she was instructed to put the money. Exh "B" was shown to PW1 and she said that it "could be the dustbin given to the third robber. By this time "it was very noisy outside". The third robber departed with the dustbin containing the money; and he did not return. According to PW1 P47,223.00 was taken and P15,000.00 later recovered.
During cross-examination by Mbalati PW1 admitted that the pantyhose covering the faces of the robbers prevented her from seeing their faces. When cross-examined by the appellant PWl conceded that she was unable to identify him as one of the robbers.
The bank manager (PW2) told the trial court that upon his arrival at the bank on the morning in question armed men dragged him from his car and led him into the banking hall. One of the robbers demanded keys from him. When he explained that he held no keys
he was struck on the ear with the barrel of a handgun. He was taken to where the rest of the bank staff were lying in
7 the presence of the third robber, who was also armed. PW2 instructed his staff to open the safe and to give the robbers what they wanted. However, a portion of the key safe was found to be missing. The two robbers who had escorted PW2 into the bank left and only the third robber remained with the staff.
When the missing portion of the safe key was found the safe was opened and PW3 was told to hand over the cash. The money was put in a plastic waste bin whose colour corresponded with that of exh "B" . It became very noisy outside the bank and the third robber ordered everybody into the store room. The third robber then left them and failed to rejoin them. Later a staff member went outside and brought in a waste bin containing about P15,000.00
All three robbers wore pantyhose masks. PW2 did not look at the clothes worn by the third robber, but he testified that in order to satisfy the third robber that a portion of the safe key was in fact missing the latter was persuaded to remove his mask so that he could see for himself. PW2 said that the temporary removal of the mask enabled him to see the face of the third robber. PW2 identified him by pointing to the appellant in the dock.
During cross-examination by the appellant it was put to PW2 that his statement to the police had not alleged that he had seen the appellant's face. PW2 conceded this omission - despite the fact that the whole incident was still fresh in his mind when he signed the statement.
Mrs Mokgware (PW3) corroborated the evidence of the earlier state witnesses that during the robbery she had placed the money
8 stolen in an orange rubbish bin, which she identified as exh "B" . She was unable to identify the faces of any of the three robbers because they all wore pantyhose masks. One of the robbers was wearing a copper hat (exh "DD") [a balaclava]
After she had put the money into exh. "B", so she testified, "they" ordered her and PW2 -
"to get out and lie down."
Next a noise outside the bank was heard. When she herself
got out of the bank -
"we found one of them (the robbers) being beaten up by the people outside."
When cross-examined by Mbalati PW3 said, inter alia :-
"you (accused) are the one who was beaten. Yes I am talking the truth as when we got to the police station he was asked if he knew these women he said yes. When he was asked where he saw them he said: xin the bank this morning.'."
The last state witness to testify to events within the bank was Bindi Bonang (PW4) , the bank's Operations Officer. Having been escorted into the bank by an armed robber he was taken to where prone staff members were being guarded by another armed robber. PW4 was also made to lie down. The face of this armed robber was concealed by a pantyhose mask. In addition he wore a cap, and a copper hat.
During cross-examination by Mbalati PW4 identified the
appellant in the dock as the robber who had guarded them in the
bank. The witness said -
"There was a time we could not find the small key for the safe and he (the appellant) removed his copper hat and pantyhose."
9
However, as in the case of the bank manager, PW4 was constrained to concede in cross-examination that the fact that he had seen the appellant's face had been omitted "by mistake"
from his written statement to the police.
Lt. M. Matebesi (PW8) is a member of the Botswana Defence Force and an armament and ammunition technician. He examined and tested the three firearms (exhs "A", "C" and "E") and the cartridges found in them. He explained to the trial court that the three firearms were in a serviceable condition.
At the conclusion of the state case each accused testified under oath. The story was the following: The two accused are South Africans who together came to Botswana on a visit in March 1992. On the morning of 28 March 1992 they parked their van and went to town to change money. The banks were not yet open and they went in search of a telephone booth in order to make a telephone call. Passing near the bank gate they heard someone shout that there were thieves inside the bank.
In his evidence Mbalati said that thereupon they entered the courtyard of the bank only to see two people scaling the wall. One of them dropped "a plastic" in the vicinity of which Mbalati noticed a gun. He picked up the gun and went in pursuit
of these two people. In the course of such pursuit someone tripped him and he was beaten up. After he had led the police to the parked van, he was taken to the police station where he was shown "to the people who work in the bank." The latter were asked whether they knew him. They responded by asking Mbalati why he came from South Africa to steal money from the bank.
Mbalati denied that he had fired a shotbefore he was
10 tripped. He was, very significantly, quite unable to explain how the firearm (exh "E") had got into the van.
I turn to the appellant's version. He says that in response to the scream that there were thieves in the bank he and Mbalati rushed into the bank's courtyard. Mbalati was a few steps ahead of him. He also saw two people scaling the wall and dropping a plastic container. A gun fell a little distance away from the container. Mbalati picked up the gun and went in pursuit of the miscreants. Initially the appellant also joined in the chase, but then he reflected upon the contents of the plastic container and he abandoned the chase in order to examine it. Inside it he found a gun and a knife which he took. At that stage he was struck on the head from behind with a heavy object; and he fainted. When he regained consciousness he left the courtyard, whereupon he was pursued and attacked by a man wielding a stick. He was repeatedly beaten, and each time he fell down. When he reached Woolworths he was attacked by a crowd and he lost much blood. He collapsed and came to consciousness later in hospital.
Upon his discharge from hospital he was questioned by the police about the robbery. He tried in vain to explain that he had been the hapless victim of mistaken identity. He denied that PW2 or PW4 had seen his face and he disputed the evidence of PW5 .
Before weighing the merits of the case two matters require brief discussion. In considering the appeal the task of the court has been made difficult by the deplorable state of the record of the trial proceedings. First, much of the evidence has been recorded in staccato fashion often hard to follow. Second, the record is marred throughout by typographical errors. Despite
11 the aforementioned blemishes I consider that the record still represents a true reflection of the trial proceedings. I am unable to agree with a submission strenuously advanced by the appellant that what he described as "the distortions" in the record had been deliberately manufactured and that he had been severely prejudiced thereby.
A preliminary objection raised by the appellant was based on the provisions of section 10(1) of the Constitution which guarantees to all persons the right of a fair hearing "within a reasonable time." The appellant complained that his case was not heard within a reasonable time. The trial proper began on 14 March 1994, that is to say, almost two years after the arrest of the two accused. This represents a regrettably long delay and one not conducive to justice. For reasons fully detailed by counsel for the State, and which it is unnecessary here to repeat, the delay between the date of arrest and the court appearance on 18 February 1993 has been satisfactorily explained. The reasons for the many remands thereafter until 14 March 1994 appear from the record. This delay was, I think, due to circumstances beyond the control of the State. It should be noted, in particular, that the delay between July 1993 and the end of January 1994 was occasioned by a request by the accused that they should be provided with interpreters able to speak Shangaan and Northern Sotho respectively. Despite many and sustained efforts on the part of the State, it took many months to find such interpreters. Suffice it to say that upon a consideration of all the circumstances of the case I agree with the submission of counsel for the State that the delay was not
12 so inordinate as to constitute an infraction of the constitutional rights of the two accused.
The way has now been cleared for a consideration of the merits of the appeal. This is a matter in which the issue of proper and safe identification of the alleged malefactors looms large. It is widely accepted that the identification of an accused person as the criminal is a matter fraught with the possibility of genuine mistake. Even an honest witness is capable of identifying the wrong person, and of doing so with complete confidence. Long judicial experience has shown that evidence
of identity in criminal cases is to be treated with great care. It seems to me, with respect, that the trial court may not have cautioned itself sufficiently in this regard.
If, as in the instant case, no identification parade has been held, the fact that witnesses identify the criminal for the first time at the trial weakens their testimony. The compromising effect of seeing the accused in the dock is a powerful one. In the instant case, furthermore, witnesses for the state were testifying to events already two years old.
On the other hand this is not a case in which the evidence connecting the appellant is that of a single identifying witness. The appellant was identified as one of the robbers inside the bank by two witnesses (PW2 and PW4) and as the robber leaving the bank building with exh "B" in his possession by one witness (PW5) . Although their statements to the police are open to criticism, some weight must be accorded to the testimony of PW2 and PW4 identifying the appellant. The evidence of PW5 has greater cogency. The discrepancy in the evidence of PW5 has
13 already been mentioned. Of vital importance in her evidence, however, is not so much whether she actually saw the appellant come out of the back door but rather the fact that when she saw the appellant after he had emerged from the bank he had exh "B" (which contained the stolen money) in his possession. It is also a feature strengthening the State case that PW3, although she was unable to identify the appellant, in fact identified Mbalati at the police station as one of the robbers. It is common cause that the two accused, whether innocent or guilty, were together at the crucial time.
The matter does not end there. Circumstantial evidence may also indicate the identity of the criminal. The cogency of circumstantial evidence varies from the lowest to the highest in value. Here there is the circumstantial evidence that both accused were found in suspicious circumstances in the vicinity of the crime immediately after its commission. Unless the appellant is able to give a reasonable explanation for it this circumstantial evidence is very cogent and highly incriminating. Added to the fact that when apprehended each accused was armed is the significant fact that in their parked van there was concealed a third and loaded firearm.
In my view the appellant has failed dismally to provide any sort of reasonable explanation for the circumstantial evidence. His account of how he and Mbalati each came into possession of a firearm is, in my opinion, so wildly improbable that it does not merit serious consideration. Moreover the presence of exh "E" in the parked van goes quite unexplained. The circumstantial evidence clinches the State case and demonstrates the guilt of
14 the appellant beyond reasonable doubt.
I share the view expressed by Gaefele Ag. J that the sentences imposed appear to be reasonable in all respects. There is no reason whatever to disturb the sentences.
In the result the appellant's appeal against both convictions and sentences is dismissed.
Delivered in open court at Lobatse on 2nd February 1996
G.G. HOEXTER [JUDGE OF APPEAL]
I agree
T. A. A6UDA [JUDGE OF APPEAL]
I agree
P.H. TEBBUTT [JUDGE OF APPEAL]
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