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Gabanakgang and Another v The State (Criminal Appeal No. 8 of 1996) [1996] BWCA 40; [1996] B.L.R. 670 (CA) (19 July 1996)
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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Criminal Appeal No. 8 of 1996
In the matter between:
OS UPILE GABANAKGANG
1 st Appellant
ABRAHAM MOCHOKO
2nd Appellant
vs.
THE STATE
Respondent
Mr. V. Vergeer for the Appellants Mrs. R. Segokgo for the Respondent
JUDGMENT
Coram: A. N/E. Amissah, J. P. Lord Cowie, J.A. Lord Allanbridge, J.A.
COWIE. J. A.:
The main issue in this case was whether this Court should grant an application for leave to appeal against conviction, leave having been refused in the Court a quo. A second point was an appeal against sentence, but as I shall explain later that point never arose.
On the main issue Counsel for the Respondent took a preliminary point to the effect that the application for leave to appeal to this Court against conviction should be refused, because it was filed out of time and the late filing should not be condoned.
We heard detailed submissions on this matter, but in the end of the day, we decided that, although Counsel for the Appellants did not come out of it with much credit, it would be in the interests of justice to condone the late filing of the application for leave, and furthermore, to allow Counsel for the Appellants to address us on the merits of the appeal against conviction, so that
2 the whole matter could be disposed of at this session of the Court. After hearing Counsel for the Appellants on the merits, the Court decided, without calling on the Respondent, to refuse the appeal against conviction and said that we would give our reasons later. Cm being informed of this decision, Counsel for the Appellants then abandoned his appeal against sentence and accordingly, at this stage it is only necessary
for me to give the reasons for refusing the appeal against conviction.
The Appellants were originally charged in the Magistrates Court for the District of Gaborone sitting at Broadhurst with the following
offence"-
"STATEMENT OF OFFENCE Armed robbery contrary to section 291 as read with section 292 (2) of the Penal Code Cap. 08:01.
PARTICULARS OF OFFENCE The two accused persons on the 28th day of January, 1995 in Old Naledi Location in Gaborone, in the Gaborone Administrative District, jointly acting together stole cash amounting to P465.00 being the property
of Copper Jacob and at the time of stealing they used actual violence to Copper Jacob by throwing or hitting him with stones in order to obtain the property." They represented themselves at the Trial and after the prosecution case was closed they both gave evidence on oath in their own defence.
After hearing all the evidence the learned Magistrate on 13 April 1995 found both Appellants guilty as charged, and sentenced each of them to ten years imprisonment which, in terms of Section 292(2) of the Penal Code (Cap 08:01) as amended, was the minimum sentence which the Magistrate could impose, assuming that the conviction was justified.
3 The Appellants appealed against both conviction and sentence to the High Court, and it is sufficient to say for present purposes that in due course the appeals on both heads were dismissed. Thereafter the Appellants applied for leave to appeal to this Court on both conviction and sentence and the outcome of
that application was that the judge a quo granted leave to appeal against sentence, but refused leave to appeal against conviction.
It is against that background that the present application for leave to appeal against conviction, albeit, filed late, came before us. The grounds of appeal which, as I have previously stated, Counsel for the Appellants was permitted to develop were as follows:-
GROUNDS OF APPEAL BE PLEASED TO TAKE NOTICE THAT the above-named Appellant having been convicted of the offence of armed robbery in the Gaborone Magistrate's court, sitting at Broadhurst, on the 13th April, 1995, and being dissatisfied with the decision of the Learned Magistrate, hereby files his Grounds of Appeal against conviction and sentence in the following respects:
A. GROUNDS OF APPEAL AGAINST CONVICTION
(i) The Learned Magistrate erred in wrongly convicting the Accused for an offence he did not commit, as outlined by the charge sheet, which provides that actual violence was used on one Copper Jacob when no such violence was ever used on him by the Accused.
(ii) the Learned Magistrate erred in finding that from the evidence it was clear that the Accused was looking for trouble and what
4 eventually happened was a consistent and foreseeable consequence of his actions, in spite of the Accused's reasonably probable explanation; (iii) The Learned Magistrate erred in convicting the Accused
on the basis that.... "the prosecution(s) case is overwhelming against the Accused", in spite of the reasonably probable explanation of the Accused. B. GROUNDS OF APPEAL AGAINST SENTENCE
(i) The Learned Magistrate failed to give proper weight to the
mitigating factors of the Accused, (ii) The sentence imposed by the Learned Magistrate induces a sense
of shock and disbelief due to its severity, (iii) The sentence was too severe in the circumstances of the case as the Accused was
a first offender and the amount alleged to have been stolen was not substantial, (iv) In passing sentence, the Learned Magistrate
was wrongly influenced by his statement that, offences of robbery are on the increase, calling for deterrence." Notwithstanding these grounds of appeal, Counsel for the Appellants only sought to argue two matters in support of the appeal against conviction, and as I have already mentioned eventually abandoned his appeal against sentence.
The two grounds which he argued were as follows:-
First, that the learned Judge in the Court a quo (and I assume he meant by this, the Magistrate) erred in holding that the State had proved its case beyond reasonable doubt despite
5 reasonably probable explanations which the appellants gave of the events of 28th January 1995. Second, that it could not be maintained that the offence in the indictment had been proved beyond reasonable doubt, because, in order to prove that offence, it was necessary for the State to prove that the Appellants were armed at the time with a dangerous or offensive weapon. The argument was that the State had failed to prove that crucial matter, because stones could not be said to be dangerous weapons in the context of the charge.
As it happens, I do not need to go into any detail as regards the latter ground of appeal, because, after considerable discussion,
Counsel for the Appellants abandoned it. It should be pointed out however, that, in my opinion, the confusion arose in this case because the State elected to describe the offence in the charge sheet as "armed robbery." That suggested that the offence itself fell to be characterised by the opening words of Section 292 (2) of the penal Code, whereas no such characterisation was justified.
All that the State had to do was to charge this offence as "robbery" in terms of Section 291 of the Penal Code (Cap 08:01) and prove in terms of that Section that this was a case of stealing by persons who, at or immediately, after the time of stealing, used or threatened to use actual violence to the victim. The further reference to Section 292 (2), which only deals with sentence, would, of course, be necessary if the State wished to apply that sentence to the circumstances of this offence.
The provisions of Section 292 (2) as amended are in the following terms:-
"If the offender is armed with any dangerous or offensive weapon or instrument or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes, or uses any other personal violence to any person, he shall be sentenced to a term of imprisonment of not less than
6
10 years."
Clearly the provisions of that Section envisage three separate situations in which a minimum
sentence often years imprisonment falls to be imposed and does not lay down that the sub-section
applies only if the person committing the robbery is armed with a dangerous or offensive weapon.
The three separate situations are first, if the robber is armed with a dangerous or offensive weapon, second, if he is in company with one or more other person or persons or third, if at or immediately before or immediately after die time of the robbery, he wounds beats, strikes, or uses any other personal violence to any person. In any of these situations a robber must be sentenced to a minimum often years imprisonment, but it does not follow that he must in all cases be armed with a dangerous or offensive weapon
to commit the actual offence. The confusion on that point arose because of the manner in which the charge was framed in the charge sheet but nevertheless I am of the opinion that Counsel for
the Appellants was fully justified in abandoning this ground of appeal.
It only remains therefore to deal with the first ground of appeal against conviction which was very succinctly put by Counsel for the Appellants in the following terms:-
The Appellants gave consistent explanations of what had occurred on the 28 January 1995 and these explanations were reasonable ones. On the other hand the prosecution evidence was riddled with inconsistencies and contradictions to such an extent that it could not be said, taking the evidence as a whole, that the prosecution had proved its case beyond reasonable doubt.
In other words if there as a possibility that the Appellants' explanation of what happened on the day in question was true then the magistrate ought to have held that the State had not proved hs case beyond reasonable doubt and should have acquitted the Appellants. Bearing that principle in mind, I consider it necessary to examine first the submission that the prosecution evidence was riddled with inconsistencies and contradictions whereas the defence evidence was
7 wholly consistent. This would have a bearing on the main question of whether the Appellants' explanation of the incident could possibly be true. On the initial matter therefore, while there is some force in Counsel's submission
that there were inconsistencies in the prosecution evidence, this was a matter in my opinion for the magistrate to consider and evaluate. The major difficulty for the Appellants on this point is that the Magistrate saw and heard the witnesses and decided that no matter how consistent the Appellants' explanations might have appeared to be he did not believe their evidence. Having rejected the evidence of the Appellants as he was entitled to do, he obviously took the view that after
considering the evidence of the prosecution witnesses as a whole, he could accept their evidence as credible and reliable.
In my opinion, this Court would be slow to interfere with such a finding, based , as it inevitably was, on the credibility and reliability of the witnesses. In any event notwithstanding the forceful submissions of Counsel
for the Appellants it is not correct to say that the evidence of the Appellants was entirely consistent. On a careful reading of their evidence, as disclosed by the Record it seems to me that there were
a number of inconsistencies in what they say happened when they alighted from the combi. For example the second Appellant said that he was behind the combi looking at the registration plates when he met the driver. The driver had a screw driver and sjambok. The driver tried to beat him with the sjambok but he successfully avoided it. On the other hand the first Appellant said
that he was holding the conductor by the hand when the driver got off the combi holding a sjambok and used the screw driver to stab the first Appellant on the hand. Furthermore, the first Appellant said that the conductor picked up a stone and struck him on the head with it. He said
the same stone proceeded to hit the driver above the eye and was thrown when the conductor was running away from the second Appellant.
For his part the second Appellant said that the driver, after trying to beat him with the sjambok advanced towards him and tried to stab him with the screw driver. The second Appellant then struck him with a fist and
8 he fell down. The driver then got up and attacked the first Appellant. As the first Appellant and the driver faced each other the conductor picked up a stone and threw it at the first Appellant. From these examples it can be seen that the evidence of the Appellants was far from consistent. I would not for a moment criticise the evidence of the Appellants simply because of its inconsistencies, for the simple reason that inconsistencies are only to be expected in evidence of this sort, but for the same reason I would not criticise the evidence of the prosecution witnesses and would simply reiterate that
the evaluation of the evidence was a matter principally for the Magistrate.
As regards the submission that because the Appellants' explanation of what had occurred on the day in question was a reasonable one and could possibly be true, with the result that the State had not proved its case beyond reasonable doubt, I have to say that, in my opinion, the learned Magistrate appears to have applied
the wrong test, where at the end of his judgment he says,
"But in evaluating the evidence I find the defence case raising no reasonable probability of being true."
In my opinion, that was putting too high an onus on the Appellants and amounted to a misdirection.
The correct test is succinctly and clearly set out by Tebbutt J. In the case of S v. Jaffer
1988 (2) SA 84 at p 88.
"It is, of course, always permissible to consider the probabilities of a case when deciding whether an accused's story may reasonably possibly be true (See v Singh 1975 (1) SA 227 (N); S v Munyai 1986 (4) SA 712 (V) at 716B). The story may be so improbable that it cannot reasonably be true. It is not, however, the correct approach in a criminal case to weigh up the State's version particularly where it is given by a single witness, against the version of the accused and then to accept or reject one or the other on the probabilities. This approach was considered by Van
der Spuy AJ in S v Munyai (supra) where he said at 715G:
9
"There is no room for balancing the two versions, ie the State's case against the accused's case and to act on preponderances."
Dealing with Singh's case Van der Spuy AJ, with whom Klopper AC J concurred said that the proper approach was for a court to apply its mind not only to the merits and demerits of the State and defence witnesses but also to the probabilities of the case. This was to ascertain if the accused's version was so improbable as not reasonably to be true. This, however, did not mean a departure from the test as laid down in R v. Difford 1937 AD 370 at 373 that, even if an accused's explanation be improbable, the court is not entitled to convict unless it is satisfied not
only that the explanation is improbable but that beyond any reasonable doubt it is false. If there is any reasonable possibility of his explanation being true then he is entitled to an acquittal. Van der Spuy AJ went on to say at 716B-C:
'The fact that the court looks at the probabilities of a case to determine whether an accused's version is reasonably possibly true
is something which is permissible. If on all the probabilities the version made by the accused is so improbable that it cannot be supposed to be
the truth, then it is inherently false and should be rejected. But that offers no answer to the approach adopted, in my view quite property by Slomowitz AJ in the case of S v Kubeka (supra).'
In S v Kubeka 1982 (1) SA 534 (W) at 537F-H, Slomowitz said in regard to an accused's story:
'Whether I subjectively disbelieve him is, however, not the test. I need not even reject the State case in order to acquit him I am bound to acquit him if there exists a reasonable possibility that his evidence
may be true. Such is the nature of the onus on the State.'
Referring to this passage Van der Spuy AJ said at 715G:
'In other words, even if the State case stood as a completely acceptable and unshaken edifice, a court must investigate the defence
case with a view to discerning whether it is demonstrably false or inherently so improbable as to be rejected as false.'
I agree. The test is, and remains, whether there is a reasonable possibility that the appellant's evidence may be true. In applying that test one must also remember that the court does not have to believe her story; still less has it to believe it in all its details. It is sufficient if it thinks there is a reasonable possibility that it may be substantially true (R v M 1946 AD at 1027."
That being the correct test, and being of the opinion that the magistrate has adopted the
wrong approach, this Court is at large to consider afresh the evidence and to see whether in fact
10
the Appellants' explanation of the events may possibly be true.
On that matter I have not the faintest doubt. The explanation given by the Appellants was that this violent incident occurred simply because the first Appellant asked for his change from the fare which he had paid, and that the conductor was so incensed by this request that he and the driver of the combi attacked the Appellants with a sjambok, a screw driver and stones causing the Appellants to flee, and that no money was stolen. Such an explanation of this incident is so ludicrous that to hold that it might possibly be true would be perverse. In my opinion, and bearing in mind that the Magistrate believed the evidence of the prosecution witnesses, this explanation was so palpably false that it must be wholly rejected.
For all these reasons and since, in the end of the day, this was the only ground of appeal which was founded on by Counsel for the Appellants, I would simply confirm our decision to
dismiss this Appeal and confirm the sentences which were imposed on the Appellants.
Delivered in open Court this 19th day of July 1996.
LORD COWIE
Judge of Appeal
I agree
A.N.E. AMISSAH
Judge President
I agree
LORD ALLANBRIDGE
Judge of Appeal
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