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Moletsane v The State (Criminal Appeal No 26 of 1995 ) [1996] BWCA 31; [1996] B.L.R. 73 (CA) (21 February 1996)
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IN THE COURT OF APPEAL OF BOTSWANA
COURT OF APPEAL CRIMINAL APPEAL NO 26 OF 1995 HIGH COURT CRIMINAL APPEAL NO 64 OF 1994
In the matter between:
LAWRENCE ITUMELENG MOLETSANE
Appellant
vs.
THE STATE
Respondent
APPELLANT IN PERSON
MR. ATTORNEY P.M. ACHEAMPONG FOR THE RESPONDENT
JUDGMENT
CORAM: A.N.E. AMISSAH, J.P. P.H. TEBBUTT, J.A. W.I.K. COWIE, J.A.
COWIE J.A.
On the 30th June 1993 the Appellant was convicted in the
Subordinate Court of the First Class for the Gaborone District,
of the following offences:-
(1) Robbery contrary to Section 2 91 and punishable under Section 292 (2) of the Penal Code (Cap 08:01)
Particulars of offence
LAWRENCE ITUMELENG MOLETSANE, on the 22nd day of October 1992 at Old Industrial Site, in Gaborone in the Gaborone Administrative District
in the Republic of Botswana, did rob NEO KOKELETSO, MOTHUSI KEBADIRANG, and THOMAS MODISANE of J. Haskins and Sons (Pty) Ltd of cash in the sum of P25,535.55, being the property of the said J. Haskins and Sons (Pty) Ltd and
at or immediately before used a pistol
2
to threaten the said NEO KOKELETSO, MOTHUSI KEBADIRANG, and THOMAS MODISANE, and immediately after he used the same pistol to retain
the said money.
(2)
Unlawful Possession of Arms without licence, Contrary
to Section 9 (1) and punishable under Section 9 (4) of
the Arms and Ammunition Act (Cap 24:01)
Particulars of Offence
LAWRENCE ITUMELENG MOLETSANE on the 22nd day of October 1992 at Standard Bank Industrial Site, in Gaborone, in the Gaborone Administrative
District, in the Republic of Botswana, being a person not exempted under Section 10 (1) of the Arms and Ammunition Act unlawfully
had in his possession one 9mm brown pistol without a licence Contrary to Section 9 (1) and punishable under Section 9 (4) of the
Arms and Ammunition Act (Cap 24:01).
(3)
Unlawful Possession of Ammunition without licence
Contrary to Section 9 (1) and punishable under Section
9 (4) of the Arms and Ammunition Act (Cap 24:01).
Particulars of Offence
LAWRENCE ITUMELENG MOLETSANE on the 22nd day of October 1992 at Standard Bank Industrial Site in Gaborone in the Gaborone Administrative District, in the Republic of Botswana, being a person
not exempted under Section 10 (1) of the Arms and Ammunition Act unlawfully had in his possession two (2) x 9mm calibre live rounds
of ammunition without a licence.
The sentence imposed was as follows:-
COUNT 1 - 10 years imprisonment to run from 26th October 1992, and 4 strokes with a light cane, after certification by a Medical Officer.
COUNT 2 - A fine of P250 or 4 months imprisonment in default of payment.
COUNT 3 - A fine of P250 or 4 months imprisonment in default of payment.
3
All the three prison sentences were ordered to run concurrently with each other.
The Appellant who represented himself at the trial was informed of his right to appeal to the High Court against both conviction and
sentence within 14 days if he so wished.
He took advantage of his right of appeal and on 21st July
1993 he lodged a letter containing the following grounds against
his conviction:-
"(1) The magistrate who presided over my case used foul language.
(2)
He declined to reduce (sic) himself from presiding over the case upon my request to do so.
(3)
Exhibit presented did not tally with the case and thereby with the conviction.
(4)
The key witnesses could not positively identify me, and neither could they depict my peculiar features in describing the alleged robber.
(5)
I suffered Judicial Suppression in a sense that, I was never granted permission to present my submission."
The appeal was heard in the High Court by Gyeke-Dako J and on
26th January 1995 he dismissed the appeal, confirmed the
conviction and sentence and in relation to the fifth ground of
appeal made the following additional order:-
"Due to the importance of law in relation to the interpretation and application of the provisions of Section 181 of the Criminal
Procedure and Evidence Act, leave is granted to the appellant to appeal to the Court of Appeal, if he so desires for an authoritative
pronouncement on these provisions."
4
APPEAL AGAINST CONVICTION
Reference will be made to the provisions of Section 181 of the said Act when I come to deal with the Appellant's fifth ground of appeal. Suffice it to say at this stage that the Appellant wishes to appeal against the decision of the learned Judge in the Court below, and although he has not lodged a formal Notice of Appeal or grounds of appeal in relation to this Court, we decided, in spite of a formal objection by Counsel for the State, that since he has, in effect, always represented himself, we should overlook that omission and permit him to present his appeal to this Court, based on the grounds of appeal which he lodged in the Court below, plus a further ground of appeal against sentence.
As it turned out, the Appellant had prepared a written statement in support of his grounds of appeal, which he read to us. It was in clear and succinct terms and the only comment, I would make on it, is that he did not attempt to support his fourth ground of appeal to the Court below which was directed to the question of the sufficiency of the evidence of identification, and therefore to the facts of the case. That was the exercise of a wise discretion on his part since the evidence of identification and the Appellant's involvement in this offence was overwhelming and beyond any possible doubt. I mention this
5
point at this stage, because it has an important bearing on the
question raised by the fifth ground of appeal, namely, whether the Appellant "suffered Judicial Suppression in a sense that, I was never granted permission to present my submission."
The main burden of the Appellant's submissions to this Court in his appeal against conviction was that he had not had a fair trial; that the magistrate was prejudiced against him; and that a number of "misunderstandings," to use his own word, had arisen during the course of the proceedings to which he would have wished to draw the magistrate's attention in his closing address. Accordingly because he had not been given the opportunity to address the magistrate he maintained that the omission to call upon him to do so amounted to such an irregularity as to vitiate the whole proceedings.
Before turning to the events upon which the Appellant based
the above submissions, I should mention briefly the third ground
of appeal, which fell into a separate category. It is in the
following terms:-
"Exhibit presented did not tally with the case and thereby with the conviction."
The Appellant elaborated on that point in his written statement, and what his argument came to was that he could not be convicted
of this robbery, because the money which he was
7 further events to which he did refer occurred. First, he alleged
that the magistrate had described his objections to the trial
proceeding in the absence of the money which was alleged to have
been stolen, as "rubbish" and that this amounted to the use of
foul language.
Second, he alleged that during the course of the examination in chief of PW3, when the witness was attempting to describe the assailant in the robbery, the magistrate intervened and said "This thing of describe, describe is just a waste of time, tell the witness to point." In consequence of this intervention the Appellant alleged that the witness had pointed at him, but because he was the only person in the dock, the Appellant maintained that this was prejudicial to him.
Third, he maintained that the magistrate's manner of handling the case was such that he "choked the smoothness out of the case and thereby caused frustration on the part of the "defenceless accused person". He alleged that the record of proceedings was inaccurate in that it portrayed the magistrate as a very patient and understanding man, and the Appellant as ruthless and arrogant, whereas the reverse was the case.
And fourth, in the light of the circumstances, referred to above the Appellant maintained that the refusal of the magistrate to recuse himself was unjust.
8
With reference to the first allegation, the Appellant
maintained that the description of his objections as "rubbish"
amounted to foul language, and disclosed bias on the part of the
magistrate and an intention to browbeat the Appellant, to his
prejudice.
On this point, it is to be noted that the record of
proceedings does not seem to support the Appellant's principal
allegation that the magistrate described his objections as
"rubbish". At page 40 of the record the magistrate is noted as
saying this:-
"I will then warn the accused to desist from passing remarks, mumbling, and refusing to sit down and talking all sorts of rubbish, otherwise the trial will proceed in his absence."
In other words what the magistrate was remarking on, was not the objections which had been taken but the general conduct of the Appellant. In response to the magistrate's strictures, the Appellant
then stated that he did not want to proceed with the trial, because he foresaw that none of his objections would be acceded to. He described the Court as obstinate.
In my view there is no reason to believe that the magistrate was describing the Appellant's objections as "rubbish" and, in any event, while the use of such a word was disparaging, it could not be described as "foul", and was used at a time when the magistrate was clearly exasperated with the Appellant's behaviour
9
in Court. There are no grounds in my view for holding that this
exchange between the magistrate and the Appellant displayed any bias or prejudice on the part of the magistrate against the Appellant. Indeed it is apparent from what is noted in the record further on, on the same page, that the magistrate dealt fairly, if firmly, with the Appellant and adjourned the trial to give him time to compose himself. In so far as this allegation of the use of foul language by the magistrate forms a specific ground of appeal, I find no merit in it, but I will consider the matter again at a later stage in the context of the fifth ground
of appeal.
The second allegation by the Appellant, that the magistrate's intervention in the evidence of PW3 resulting in him identifying the Appellant, was prejudicial to him, can be dealt with shortly. Even if this incident occurred, remembering that there is no note of it in the record, I am not persuaded that it was so prejudicial as to affect the outcome of the trial. The Appellant had already been identified as the assailant by PW2 and there was evidence from other witnesses that he was seen running away from the locus carrying a black bag which contained the stolen money and a pistol.
Accordingly there is no substance in this point, except possibly in relation to the whole atmosphere of this trial, which
10
again I will consider later with reference to the fifth ground
of appeal.
The third allegation made by the Appellant, that the magistrate's handling of the trial displayed bias against him and was prejudicial, is not supported by the record, and I am not prepared to read into it the criticisms made of the magistrate in the Appellant's written submissions and in his address to us. The magistrate appears to me, notwithstanding a degree of provocation by the Appellant, to have dealt with all the Appellant's applications and objections in a proper manner and was only stung to remonstrate with him when his conduct deteriorated.
This is not to say that I do not accept that the Appellant may have felt that he was being unfairly treated because his objections were all being turned down, but I am bound to say that however he may have felt, those objections were properly and justifiably turned down and there is nothing in the record to suggest that the magistrate's handling of the case displayed bias against or prejudice towards the Appellant.
The fourth complaint which also forms the second ground of appeal is to the effect that the refusal of the magistrate to recuse himself was unjust and vitiated the whole proceedings. In my opinion that complaint is also without merit.
11
The request by the Appellant for the magistrate to recuse himself came at a point in the trial when there had been an adjournment following on the exchange already referred to between the magistrate and the Appellant over the objection to the failure of the State to produce the stolen money, and the criticism by the magistrate of the Appellant's behaviour in Court. On resumption of the trial the magistrate indicated that the Appellant's behaviour had continued to be disruptive in spite of the warnings given to him, and the magistrate had even considered finding the Appellant in contempt of Court but on sober reflection had decided against it. Clearly, therefore, the magistrate was properly exercising his judicial function and had
given the benefit of the doubt to the Appellant.
Following on the request by the Appellant for the magistrate to recuse himself the magistrate, in my opinion, notwithstanding the provocation which he had received, continued to exercise his judicial function in a proper manner and dealt with the Appellant's request in a perfectly appropriate way. The request arose from the misconceived, if, in his own mind, real grievances, of the Appellant and there was absolutely no justification for it. Suffice it to say that the Appellant felt frustrated by the failure of his objections and his belief that they had failed because the magistrate was biassed against him,
12
whereas there was nothing to justify that point of view.
In my opinion, the magistrate was perfectly right to refuse the Appellant's request and so this ground of appeal will be dismissed.
The fifth and final ground of appeal relates to the failure of the magistrate to call on the Appellant to address him after all the evidence in the case had been adduced, and the consequences which flow from that, in the light of the provisions of Section 181 of the Criminal Procedure and Evidence Act (Cap 08:02) .
Section 181 of the Criminal Procedure and Evidence Act (Cap
08:02) is in the following terms:-
"After all the evidence has been adduced, the prosecutor shall be entitled to address the Court, summing up the whole case; and
the accused, or each of the accused if more than one, shall be entitled by himself or his legal representative to address the Court. If in his address the accused or his legal representative raises any matter
of law, the prosecutor shall be entitled to reply, but only on the matter of law so raised."
In the light of those provisions and the relevant decided
cases I am of the opinion that certain guidelines can be
formulated pertaining to this Section and its application, and
I consider that this Court should attempt to set these out in
view of the specific order which the learned Judge made in the
Court below. I am conscious of the fact that these rules may not
13 be exhaustive, but they may be of assistance in any future cases.
I suggest that these guidelines should be as follows :-
One It is not legally necessary that there shall actually be an enquiry whether the persons referred to in the section wish to address the Court, but they must not be deprived by the presiding Judge of the opportunity to do so.
Two Although the section does not provide that such inquiry must be made, judges should not only make the enquiry, but also record what the response to it is.
These two guidelines are derived from the opinion of GREENBERG J.A. in the case of R. PARMANAND 1954 Vol. 3 S.A.L.R. 833 (A) at page 839.
In that case the Appeal Court of South Africa was considering the provisions of the South African Act 31 of 1917 Section 221, which
is, in effect, in the same terms as Section 181 of the Criminal Procedure and Evidence Act. However, I bear in mind that not only was the Court considering a different Statute in that case, but also that it is only of persuasive authority
in this jurisdiction.
However having said that, I would respectfully concur with all that the learned Judge said in that case so far as it affects Section 181.
Three If a presiding Judge refuses a request by the accused
14 or his representative to address the Court or deliberately, or
mala fide, refrains from calling on the accused or his
representative to address the Court and proceeds to conviction
that would amount to an irregularity which would almost
inevitably result in vitiating the whole proceedings and lead to
the quashing of the conviction. The onus of proving the
irregularity would rest on the Appellant.
Four Where the Trial Judge simply inadvertently omits to call on the accused to address the Court after all the evidence has been adduced and proceeds to conviction, that would only amount to an irregularity which would vitiate the proceedings, if the omission prejudiced the Appellant or was likely to have done so.
That was the view of the learned Judge in the Court below when he posed the question "whether the magistrate's failure to invite the accused to make a closing address or summation constituted such a material and irreparable irregularity as to vitiate the whole trial", and then went on to say, "I think the answer can only be in the affirmative if the (accused) Appellant was prejudiced by that omission."
I would respectfully agree with what the learned Judge said in that passage and I am satisfied that it is supported by other decided cases namely:-
15 WALTER MADISA v REGINA 1964 - 67 B.L.R. 157
and CHIWAURA v THE STATE 1985 B.L.R. 201
Accordingly, from what I have said so far, I am of the opinion that, if, in the circumstances envisaged in Four above, the Appellant is not prejudiced or likely to have been prejudiced by the inadvertent failure of the trial Judge to call on the accused to address the Court, the obverse to the fourth guideline would apply and the omission would not vitiate the proceedings -for the removal of doubt I would accordingly suggest a further guidelines as follows:-
Five In a case where the Trial Judge omits to call on the accused to address the Court and it is not shown by the accused to have been done deliberately or mala fide, such omission on the part of the Trial Judge shall not vitiate the proceedings unless the Appellant has been prejudiced by such omission or is likely to have been so prejudiced.
Six That in the situations envisaged in Three, Four and Five above the decision whether the proceedings are vitiated or not, must depend on the particular circumstances of each case.
Accordingly in a case where a trial Judge has simply inadvertently omitted to call on either party to address him on the evidence and has proceeded to conviction, the question which the Appeal Court must ask itself is:-
16
"Whether in the particular circumstances of this case, the failure of the trial Judge to call on the Appellant to address the Court on the evidence resulted in prejudice to the Appellant or was likely to have caused such prejudice."
While these are the guidelines which I consider should apply in cases involving Section 181, it is now necessary to apply them to the present case.
In his submissions to this Court the Appellant endeavoured to bring himself under both heads of Three, that is, he maintained that he had asked for and had been refused the right to address the Court after all the evidence had been adduced and in any event he argued that the omission of the magistrate was mala fide.
As regards the first head he pointed out in his oral submissions to us that he had stated in paragraph 15 of his affidavit dated 3rd October 1994 (page 65 of the record), that the learned magistrate "denied me the right to present my submission after the Court had adduced all the evidence."
In elaboration of that statement the Appellant informed us that he had, in fact, asked the magistrate to allow him to address the Court and had been refused.
If that was the true position, then that might well have been a good ground for holding that the proceedings were vitiated and that the conviction should be quashed. In our opinion,
17 however, that was not the true position.
In the first place, the statement in the Appellant's affidavit at paragraph 15 is equivocal to say the least. It could mean that he asked permission and was refused, or simply that he did not get the right to address the Court. Secondly, he does not say in his written submissions to this Court, that he made such a request and was refused. Thirdly, the Appellant's affidavit of 3rd October 1994 was answered by two affidavits sworn by the magistrate on 4th October and 1st November 1994 respectively.
In the first, in relation to this point the magistrate
stated:-
"That to the best of my recollection no request or order for submissions was made in this matter."
In the second one, the magistrate dealt with many aspects
of the Appellant's affidavit, but on this particular point, he
deposed as follows:-
"Paragraph 15 is only admitted to the extent that submissions were not called for. However to say he was denied them is to assure (sic) that he so requested. In fact the Appellant never requested to be given a chance to make submissions."
Fourthly I consider it highly improbable that if the Appellant had made such a request it would not have appeared in the record, since such a request would surely have alerted the
18
State Prosecutor to the situation and she would have had
something to say on the matter.
Accordingly I am satisfied that no request was made by the Appellant to address the Court and that the allegation that he did so and was refused, is without foundation. In these circumstances the attempt by the Appellant to found on the first head of guideline Three is rejected.
In support of the second head namely that the magistrate
deliberately or mala fide omitted to call on the Appellant to
address him, the Appellant founds on his written submissions to
us, in which he states that
"The heart of the argument is centred on whether the trial Magistrate's inability to grant me a right to summarise my evidence was bona fide or mala fide"
To be fair to the Appellant, he makes it clear that, in his view, it does not matter if the magistrate deliberately omitted to allow him to address the Court or simply forgot to allow him to do so, but in our opinion there is an important difference between the two situations as reflected in guidelines Three on the one hand and Four and Five on the other, and therefore it is important to consider whether the omission was inadvertent, or deliberate, or mala fide.
On this matter the Appellant attempted to persuade us, against the background of the exchanges between the Appellant and
19
the magistrate to which I have referred earlier that it was
probable that the magistrate had deliberately or mala fide omitted to call on him to address the Court.
In these circumstances he maintained that the proceedings were vitiated and the conviction should be quashed.
For the reasons which I have given earlier, I am satisfied that the exchanges between the Appellant and the magistrate did not lead the latter to be biassed against the Appellant or to act so unjudiciously as deliberately or mala fide to omit to ask him if he wished to address the Court at the end of the evidence.
In my opinion there is ample material in the record to show that the magistrate went to considerable lengths to treat a difficult accused with fairness and I am not prepared therefore to categorise the circumstances of this case as falling within guidelines Three.
My view is that this was a straight forward inadvertent omission on the part of the magistrate to inform the Appellant of his right to address the Court, even though he ought to have done so. There was nothing sinister in that omission as borne out by the fact that he also omitted to ask the prosecutor if she wished to address the Court.
In these circumstances it is my opinion that this case falls firmly within the terms of guideline Five which I have
20
formulated, and I must now ask myself the question previously
referred to namely:-
Whether in the particular circumstances of this case, the failure of the Magistrate to call on the Appellant to address the Court on the evidence, resulted in prejudice to the Appellant or was likely to have caused such prejudice."
Approaching this case in that way,I have to ask myself as
a member of the Appeal Court, what prejudice did the Appellant
suffer or was likely to have suffered by not having the
opportunity to address the magistrate? It would have been a
simple matter to have said, none, had there not been the
exchanges between the magistrate and the Appellant, because the
evidence in the case on the merits was overwhelming against him.
Can it be said, therefore, that by addressing the magistrate on
the events which the Appellant believed disclosed bias and
prejudice against him, he would have gained any advantage? The
Appellant himself submitted to us that addressing the Court would
have enabled him to emphasise some "misunderstandings" to use his
own word, and to highlight these. He also would have wished to
bring up again the intervention of the magistrate as regards the
identification of the Appellant by PW3, and generally to object
to the nature of the trial, including the magistrate's reference
to his objections as "rubbish", and his refusal to recuse
himself.
21
For my part I fail to see how it can be said that by not
being allowed to refer to these matters again, the Appellant suffered prejudice or was likely to have done so. These matters had all been dealt with in the course of the proceedings and, in my view, fairly and judiciously, so that any further reference to them would have been irrelevant so far as the Court below is concerned and wholly unproductive. Likewise looking at the matter from the point of view of this Court, the position is, in my opinion the same. Nowhere, either in his written submissions or his address to us, did the Appellant indicate that he had anything to say to the magistrate about the evidence in the case or the question of his guilt or innocence and accordingly, although it is unfortunate that the magistrate did not inform the Appellant of his right to address the Court, and enquire if he wished to do so, I am quite satisfied that he suffered no prejudice thereby or was likely to have done so and therefore I have no hesitation in rejecting this ground of appeal also.
In the whole circumstances therefore the Appellant's appeal against conviction is dismissed.
APPEAL AGAINST SENTENCE
As indicated earlier, the Appellant was sentenced to ten years' imprisonment and four strokes with a light cane on Count 1. He was also sentenced to four months' imprisonment on each
22 of Counts 2 and 3 and all the terms of imprisonment were ordered
to run concurrently.
The Appellant submitted that the sentence imposed was excessive and asked for leniency so that "justice might be seasoned with a sense of mercy." I must point out at the outset that in terms of subsection (2) of the Penal Code (Cap 08:01), Section 292 as amended by Section 3 of the Penal Code (amendment) Act 1993, the minimum sentence for Count 1 is 10 years imprisonment and so the only question for decision is whether the corporal punishment was excessive.
The Appellant's specific grounds for seeking a reduction of his sentence were, first, that the owners of the money were deprived of it by the failure of the police to retain possession of it when it was in their hands, rather than his prior act of stealing it; secondly, he sustained serious injury at the hands of the public when he was apprehended, and so a measure of retribution had already been exacted, and this should have been reflected in a lesser sentence; thirdly, the sentence has had a devastating effect on the Appellant and it should therefore be reduced.
There is no basis in these grounds of appeal for reducing the statutory minimum period of imprisonment or the order for corporal punishment. This was a very serious offence of a type
23 which is becoming all too common in this country, and must be
severely punished. The Court must make it clear to those who commit offences of this sort involving firearms, and any would-be offenders, that they are liable to receive substantial sentences if they are convicted. In my opinion the Appellant was fortunate in only receiving the minimum sentence of imprisonment. For all these reasons the Appellant's appeal against sentence is also dismissed.
W.I.K. COWIE JUDGE OF APPEAL
I AGREE:
A.N.E. AMISSAH JUDGE PRESIDENT
I AGREE
P.H. TEBBUTT JUDGE OF APPEAL
DELIVERED IN OPEN COURT AT LOBATSE THIS 21ST DAY OF FEBRUARY 1996.
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