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Mmatli and Another v The State (Criminal Appeal No. 17 of 1999) [1999] BWCA 4; [1999] 1 B.L.R. 4 (CA) (20 January 1999)
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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Criminal Appeal No. 17 of 1999
High Court Criminal Appeal No. 14 of 1999
In the matter between:
GAONYADIWE MMATLI TSHEPO MOSALA
and
THE STATE
1st Appellant 2nd Appellant
Respondent
1st Appellant in Person
Mr. O. Motlhala for the 2nd Appellant
Mrs. L. Dambe for the Respondent
JUDGMENT
CORAM: Aguda JA
Steyn JA Kumleben JA
AGUDA J.A.
The record of appeal in this case is far from clear as to how this criminal trial started. Pages 12 and 13 show that a charge containing
four counts and dated February 6,1996 was preferred against three accused persons.
2
The names of the accused persons were not shown on that charge sheet. Page 14 showed a single count of armed robbery against two persons
and it is dated February 14, 1995. That count would appear to be in respect of the offence charged in the second count of the earlier
charge, namely the robbery of Botswana Government of the sum of P47 171.00 on October 3 1995. Count 1 of the charge dated February
6, 1996, was for the theft of a motor vehicle on September 27, 1995; count 3 for the possession without a licence of arms and ammunition
on December 12,1995; and count 4 for the unlawful possession of ammunition on the same date, December 12,1995.
Apparently three person, namely, Gaonyadiwe Mmatli, Tshepo Mosala and Kabelo Basitang appeared before a Senior Magistrate on December
14, 1995. On that day at the request of the prosecutor the charges were read to the accused but pleas were not taken. They were all remanded in
custody. They next appeared before the magistrate on December 28, 1995. At this juncture there was terrible confusion as to dates
as appeared on the record. After this the trial was postponed several times until February 21, 1996, when finally the pleas were
taken. The record of proceedings that day shows that count 1 was read to each of the three accused persons and that each of them
pleaded not guilty. So also were counts 2 and 3 in succession read to each of the three and they each pleaded not guilty to each
of these other two counts. There is
3
no record that count 4 was read to them, or that they pleaded to any fourth count of any charge.
Apparently the trial was once more postponed to February 21, 1996. The actual taking of evidence did not take place until April 15,
1996, that is after yet several adjournments. During all those adjournments there was nothing to show on the record that count 4
was again read to the accused, nor is there evidence that they were given an opportunity to plead to that count.
After a very prolonged taking of evidence both for the prosecution and for the defence and addresses of counsel on behalf of the parties,
the magistrate delivered a considered judgment on February 14, 1997. In that judgment the trial magistrate convicted the three accused
persons on what can be regarded as Counts 1 and 2 of the charge, whilst in addition he convicted accused Nos.l and 2 on counts 3
and 4.
The accused thereupon appealed to the High Court. In a considered judgment, Reynolds J., on October 27,1998 allowed the appeal of
accused Nos. 1 and 2 in respect of Count 1. He dismissed the appeal of the third accused in respect of that count but reduced the
sentence imposed at the magistrate's court. Finally the learned Judge upheld the convictions and sentences imposed on all the accused
in respect of counts 2, 3 and 4.
4
Soon after, accused Nos. 1 and 2 (hereafter referred to as first and second Appellants respectively) filed an application for leave
to appeal to this court. That application came before the Chief Justice who delivered a Ruling on June 23, 1999, refusing leave.
Dissatisfied with that Ruling the Appellants made another application for leave to appeal as they were entitled to do. When that
application came before a single Judge of this Court on Friday January 7, he found no merit in it save in respect of the conviction
in respect of count 4. It was in consequence of the order granting leave to appeal in respect of count 4 that this appeal has now
come before this court, and the only ground of appeal, as stated above, is that there is no evidence on the record that the appellants
pleaded to that count.
After hearing arguments by both Counsel for the Appellant and for the State respectively, this court allowed the appeal on that count
and then said that we would give our reasons later. It is those reasons that we now give.
I would wish to consider the issue involved in this matter by first quoting
the views of the learned Chief Justice on the point. He said:
"There remains the only point that the applicant did not plead on Count IV. The record does not show that Count IV was read to the Applicants and they pleaded on it. What is clear however, is that evidence was given on that count although, the trial
court convicted them nevertheless. The count was fully dealt with in evidence and in submissions to
5
the trial court. In these circumstances it is very likely that the 4th count was also read to the applicants and they pleaded but the typing omits that. It is reflected on the record that there was an
entry of not guilty on all counts and all counts in this case were definitely four as reflected by the record."
To start with a careful and detailed examination of the record shows that it is in the judgment of the magistrate and nowhere else
on the record is it shown that "The three accused persons pleaded not guilty to all count (sic)." On the other hand, on
the day pleas were taken the record shows that counts 1, 2 and 3 were read to the accused and that they were asked to plead thereto
(pages 18 - 19 of the record). Unfortunately none of the accused persons had any legal representation (page 21 of the record). It
was after four witnesses had testified that Attorney Naledi commenced to appear for the Appellants. In consequence therefore, it
is my view that we must proceed on the basis that the count was never read to the appellants nor did they ever plead to it. I am
not prepared to speculate as to whether the error was that of the typist. Had the State made that its case it would have of course
called for the original record of the trial court either at the High Court or in this court and sought to rectify the record. That
not having been done, I must proceed on the assumption that the record as placed before this Court is correct.
6
The question therefore, and it is the only one for consideration, is whether the conviction and sentence recorded in respect of that
count can be set aside because of that irregularity.
In his submission before us, counsel for the State, Mrs. Dambe told us that there had been at least two decisions of the High Court
which would appear to be in conflict on the point. Whilst on the one hand a Judge of the High Court had held that the failure of
a trial court to afford an accused person an opportunity to plead to a charge before trial would vitiate the whole proceedings and
render a subsequent conviction based thereon a nullity another Judge of the High Court had held that such failure would only amount
to an irregularity which may have the effect of vitiating a trial only if it can be shown that such a failure has occasioned a substantial
miscarriage of justice
In State v. Keboletse 1979 - 80 BLR 74, at 78 Hayfron- Benjamin CJ
said that every accused person must be arraigned before the Court, for-
"The accused must know and understand what he is being accused of. The charge must, therefore be read, interpreted and explained
to him in a language which he understands. He must be given the choice either to admit the charge by unequivocally pleading guilty,
or demand that the prosecutor makes good their accusation, by proving his guilt beyond reasonable doubt. That demand is made by his
plea of not guilty; it is by that plea that he puts himself on his country for trial. The arraignment is not complete until the accused
has pleaded - (See R. v. Duffy (1848) 7 St.Tr. (N.S.) 795 at p. 799."
7
That judgment was delivered on May 9, 1979. Less than three years later the same point came for consideration and determination by
Hannah J., in the case of ISAAC MOIMA v. THE STATE - 1982 [1] BLR 112 delivered on November 3 1981. In taking a view in direct opposition to that of Hayfron-Benjamin, CJ, Hannah, J, thought that the former
came to the conclusion which he thought was erroneous possibly because he did not have the advantage of being referred to an English
case, namely, R. v. Williams (Roy) (1977) 1 ALL ER 874.
In that English Court of Appeal judgment, Shaw, LJ, whilst agreeing with
the rule which prohibits counsel from making a plea of guilty in respect
of his client as had been enunciated in R. v. Ellis (1973) 57 Cr.
App.R.571 had said:-
"It does not seem to this court, at any rate at the present day, that the same fundamental objection exists where a plea of not
guilty is vicariously offered or tacitly conveyed. It is difficult to conceive what possible prejudice to an accused person could
derive from such a procedure."
Relying on this position as taken by the English Court of Appeal in R v.
Williams (supra), and some passage from the United States Restatement
known as Corpus Juris Secundum 1961 Vol 22, para 408, which I do
not feel is necessary for my judgment in this case, Hannah J., said (at
page 116 of the Report) that -
"However, as was pointed out in Williams case the consequence of failing to observe the ritual in pleading not guilty have completely changed. The time was when the
8
consequences of refusing to plead not guilty could be that an accused was taken to have pleaded guilty. Today, insistence on an express
plea of not guilty is no longer a necessary safeguard of justice where there is the intended plea and where the ensuing proceedings
are precisely what they would have been had the accused himself made the plea in plain terms."
He continued thus [page 117 of the Report]
"In my judgment where an accused intended to plead not guilty, the omission of a formal arraignment and the consequent failure
to take a plea does not vitiate a trial provided that a plea of not guilty had been vicariously offered or tacitly conveyed, or a
formal arraignment had been impliedly waived by the accused, and the ensuing proceedings followed the same course as they would have
done had there been an arraignment and had a plea been taken."
It does not appear to me that the learned Judge was justified to have
transplanted what an English judge believed to have been a change in
acceptable procedure in England to an acceptable procedure in this
country, thus affecting a substantial change in its statutes. It is
certainly not the duty of a Judge to apply what he believes has become a
necessary safeguard of justice, if in so doing he would be failing to
comply with the provisions of statutes which are directly applicable to
the subject matter.
In this country every Judge or magistrate conducting a criminal trial is obliged to do so under the Criminal Procedure an Evidence
Act, Cap 08:02. Hannah J., in Isaac Moima, supra, mentions 149 (1) of the Act, (page 117 of the Report) only to dismiss it. However that was an error on
9
his part as that Section is inapplicable to the case before him any way. The provision of the Act which is applicable is to be found
in Section 141. The Section reads as follows:-
"Subject to the provisions of Sections 307, the accused shall, upon the day appointed for his trial or sentence upon any indictment
or summons, appear in Court, or if he is in custody he shall be brought into court, and shall be informed in open court of the offence
with which he is charged as set forth in the indictment or summons, and shall be required to plead instantly thereto, except where,
there being an indictment or summons and the accused having objected so to plead, the court finds that he has not been duly served
with a copy thereof."
As Mrs. Dambe, for the Attorney General, has rightly submitted, in this country the above quoted provision clearly on the face of
it, peremptorily provides that the accused "shall be informed in open court of the offence for which he is charged." and 'shall' be required to plead instantly thereto." As Mrs. Dambe also rightly submitted there is nothing in the provision to make this
Court interprete the word "shall" as contained in it otherwise than that it is mandatory as laid down in the Interpretation
Act, Cap 01:04 Section 45 which says that "in an enactment 'shall' shall be construed as imperative and "may" as permissive
and empowering."
10
In further support of the view that the intention of the legislature is that
the taking of the plea of an accused person is a necessary pre-requisite
to proper trial of a criminal charge, reference may be made to the
provision of Section 143 (1) which gives an accused the right to raise a
formal objection to an indictment or criminal summons. The Sub -
section says -
"Every objection to an indictment or summons for any formal defect apparent on the face thereof shall be taken before accused
has pleaded but not afterwards."
If the provisions of Section 141 is interpreted otherwise than mandatory,
then it will then and in that event be possible for the court to deprive a
person accused of serious crimes of his right to ask that an indictment
or summons be quashed for a formal defect which may
be
subsequently cured by evidence. It must also be mentioned that it is
only if a charge is read to an accused person and asked to plead to it that
he can take advantage of the provision of Section 150 [1] of the Act,
which among other things gives him the right to inform the Court that he
has already been convicted or acquitted of the offence of which he is then
charged.
In other words he would be prevented from exercising at that stage a fundamental right to which he is entitled under Section 10 (5)
of the Constitution which says that -
11
"No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall
again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence...."
In my view it is no use to argue that an accused person could exercise this right after he has been put through the expense and agony
of a full hearing. See also the provisions of paragraphs (e), (f) and (g) of Subsection 150 (1) of the Act entitling him to raise
further objections to being tried before plea.
If the Legislature of this country believes that this provision is essential in the interest of justice, it does not lie in the power
of any court to decide otherwise than in accordance with the provision. In my view as the law stands presently in this country, it
is this - and it has been so espoused by the president of this court, Amissah, P, in State v. Ngwato 1990 BLR 563 at 571 -
"
the plea is an important feature preceding a criminal
trial. The Act requires it. It is upon the pleading that issue is joined between the accused person and the State."
It is not a mere ritual as was suggested by Hannah J., it is an important
and indeed a vital feature of criminal trials in this country.
12
It stands to reason, I believe, that a person can only be expected to effectively defend himself in respect of a charge of which he
has been given sufficient information in a language which he understands upon his arraignment. To hold and proceed otherwise is fraught
with extreme danger to our sense of justice in this country. This is because we will thereby be approving a procedure which, in a
country where many of the persons charged before the Courts are illiterates who are incapable of paying for the services of legal
representatives; and who are incapable of understanding the fine distinctions between the various provisions of the Penal Code, are
punished sometimes very severely for offences for which they might not have been found guilty under the law. Such procedure if indeed
it is correct will permit the prosecutor or/and the Court to frame a charge or charges under different sections of the Penal Code
which would appear warranted by the evidence already given. The Court would then be free at that stage to convict them of those offences
only because, as it seems to have been argued, that those illiterate accused persons unrepresented by lawyers, have participated
in the trial by blindly asking normal sensible questions of witnesses in a procedure quite alien to them.
It seems to me that such decisions of the Courts of England in respect of this matter which have filtered to this country have been
based upon entirely different circumstances. There is no evidence that any of the
13
accused persons in this case concerned in this case were literate or understood the difficult legal consequences of cross-examination.
In fact in most of the cases which came before the Courts in England the debate had been whether or not a plea by counsel can be
regarded as a plea by the accused not whether the charges were read to the Accused personally. It can hardly ever happen that in
a case heard by a jury, which is invariably the practice in England and in the United States, especially in the more serious offences,
that the charges were not read in the open Court to the hearing of the accused and the jury. I have mentioned all these considerations
to show how erroneous it may sometimes be, and hence inadvisable, to rely on modern developments in criminal procedural law in England
or in any other country with vastly different procedural laws and circumstances in deciding cases in this country. To call in aid
the practice in those of other countries will be erroneous without a corresponding amendment to our laws of procedure. If a change
in line with developments in other countries is thought desirable, then the legislature basing itself on empirical facts at its disposal
may effect the desired change with a view to better delivery of criminal justice.
The conclusion which in my view is irresistible is that the failure of a Court to read the charge to an accused in open court and
interpreted to him in a language which he understands and given an opportunity to
14
plead to it is an irregularity which will render any conviction
subsequently recorded thereafter null and void.
It is for the reason herein given that I allowed the appeal as stated
earlier.
DELIVERED IN OPEN COURT THIS 20th DAY OF JANUARY 1999.
T.A. AGUDA
JUDGE OF APPEAL
I agree,
I agree,
J.H.STEYN JUDGE OF APPEAL
M. KUMLEBEN JUDGE OF APPEAL
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