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Motshegare v The State (Criminal Appeal No. 6 of 1999 ) [1999] BWCA 5; [1999] 1 B.L.R. 437 (CA) (1 July 1999)
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IN THE COURT OF APPEAL FOR THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
CRIMINAL APPEAL NO, 6 OF 1999
[HIGH COURT CRIMINAL APPEAL NO. 11 OF 1996]
In the matter between:
SAMUEL MOTSHEGARE
Appellant
vs.
THE STATE
Respondent
Mr. C. Dahanayake for the Appellant Mr. R. S. Busang for the Respondent
JUDGMENT
CORAM: P. H. TEBBUTT ].A. K.R.A. KORSAH J.A. M. KUMLEBEN J.A.
KORSAH J.A.;
The High Court [Dibotelo ].] on 1 March 1999, granted the Appellant limited leave to appeal against his conviction. The sole ground on which leave was granted was that the High Court erred in holding that the failure of the learned Magistrate to give reasons for rejecting the defence proffered by the Appellant was not fatal to his conviction.
2
The Appellant together with another were charged with robbery contrary to section 291 as read with section 292 of the Penal Code (Cap 08:01). They pleaded not guilty to the charge, but were both convicted of the offence, after their trial, and each was sentenced to the mandatory minimum sentence of 10 years imprisonment on 25 August 1995.
The conviction of the Appellant was the subject of an appeal to the High Court. His co-accused did not lodge any appeal. One of the submissions made on behalf of the Appellant was that: the conviction should be quashed on the ground that the learned Trial Magistrate failed to give reasons why he rejected the evidence of the Appellant as opposed to the evidence of the Prosecution witnesses and that on that score the conviction should be set aside and a retrial ordered.
Dibotelo }. observed that indeed the learned Magistrate's failure to deal with
the evidence of the Appellant and, in particular, by not stating his reasons for his
decision, the judgment fell foul of the provisions of section 291 [ 1 ] of the Criminal
Procedure and Evidence Act [Cap 08:02] which stipulate that:
"Every
judgment shall be written by or under the
direction of the presiding officer of the court in the language
of the court, and shall contain the point or points for
determination, the decision thereon and the reasons for the
decision
" [emphasis added].
The learned ]udge, after a scrupulous analysis of the record, concluded that there was sufficient evidence on record to support the conviction of the Appellant.
The facts, as related by the Complainant, were that he arrived in Lobatse from Selebi-Phikwe after midnight. He proceeded to Noisy
Road to hire a taxi to take him to his residence at Digawana. He met the Appellant, whom he knew, and
3
his co-Accused riding in a white Hilux vehicle bearing the registration number BF 3979. The co-Accused was the one driving at the
time. He said the Appellant was happy to see him and he told the Appellant and his co-Accused that he was in need of transport to take him to Digawana. The Appellant and his co-Accused agreed to ferry him to Digawana provided he purchased PI0.00 worth of petrol for the vehicle at the petrol station near the Cumberland Hotel. At the petrol station the Complainant pulled out a wad of notes amounting
to P850.00 from his pocket and took out a P50.00 note to pay for the petrol.
The Appellant and his co-Accused thereafter drove the Complainant to Woodhall to drop a girl who was in the vehicle and then proceeded to a shebeen at Peleng. The Complainant remained in the vehicle while the Appellant and his co-Accused went into the shebeen. While waiting for the Appellant and his co-Accused, the Complainant saw a Mr. Dambe, whom he knew,
and had a conversation with him. As a result of the conversation the Complainant and Mr. Dambe wrote down the registration number of the vehicle of the Appellant and his co-Accused.
After a while, the Appellant and his co-Accused came out of the shebeen and told the Complainant that they were now going to drop him at Digawana. The Complainant sat between the Appellant, who was driving
the vehicle, and his co-Accused on the front seat. Because the Complainant expressed his concern about the manner In which the Appellant was driving, the Appellant stopped the vehicle and rebuked the Complainant for trying to teach him
how to drive. The co-Accused thereafter took over the driving of the vehicle and they continued their
4
journey. On the way, at the request of the Appellant, his co-Accused stopped the vehicle for the Appellant to urinate. The Complainant also disembarked to urinate.
According to the Complainant the co-Accused came from behind him and started to throttle him while at the same time struggling to put his hand in the Complainant's back pocket, where his money was. While
he was thus being throttled by the co-Accused, the Appellant came and punched the Complainant on the stomach. As a result the co-Accused was able to remove the money from the Complainant's pocket and put it in his own pocket. Not satisfied with depriving the Complainant of his money, they assaulted the Complainant
and according to him the Appellant suggested that they kill the Complainant as he was in love with Complainant's sister and the Complainant knew him. The Appellant's co-Accused then drove the vehicle directly at the Complainant ostensibly to crush the Complainant against the fence. The Complainant, however, dodged the vehicle, entered the fence area, ran away and hid himself. The Appellant and his co-Accused searched for the Complainant, but could not find him.
The learned Judge rightly observed that when the Appellant cross-examined the Complainant he did not dispute the above allegations. And in his sworn evidence before the trial Court he admitted that he knew the Complainant; that the Complainant asked him and his co-Accused to take him to Digawana on the night of 16 June 1995 to attend a funeral; that the Complainant bought PI 0.00 worth of petrol at their request; and that on the way to Digawana
the Appellant, after passing the Mmathethe junction asked his co-Accused to stop the vehicle as he wanted to urinate.
5
The Appellant also testified that the Complainant was the first to retunr to the car after they had urinated. He said when he arrived at the spot where the vehicle was parked, he found his co-Accused already throttling the Complainant. His co-Accused asked the Appellant to turn the vehicle around. After he had complied with his request, the co-Accused threw the Complainant to the ground, pushed the Appellant onto the passenger seat, got into the vehicle and drove off leaving the Complainant lying on the ground.
Although the Appellant denied any participation in the robbery and alleged that his co-Accused was the sole perpetrator of the offence, the record shows that his co-Accused testified that both of them held the Complainant and forcibly removed money from his pocket. After which, the Appellant
suggested that they kill the Complainant.
Firstly, the failure of the Appellant's to challenge the Complainant's version of what transpired that night suggests that the Complainant was telling the truth.
Secondly, his co-Accused's version of the events that occurred when the vehicle was stopped en route for the Appellant to urinate supports in every material particular the Complainant's version of events.
Thirdly, the uncorroborated evidence of an accomplice is admissible in law against his co-Accused. It is only where an accomplice gives evidence for the Prosecution that the cautionary rule comes into play.
R V. FAITHFULL AND GRAY 1907 T.S. at p. 1077; R V. RORKE 1915 A.D. 145 at 164; S V. LANGA 1963 [4] S.A. 941 [N] at 942 A-H.
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Fourthly, even when the Appellant cross-examined his co-Accused he did not dispute the Co-Accused's allegation that: "we held
Charles and took P70.00 from him."
Lastly, when the Appellant was cross-examined he unequivocally admitted that "we took P70.00 from him after we had stopped to urinate." The mere fact that knowing there has been a robbery he shared in the proceeds thereof makes him an accomplice R V. NHLEKO 1960[4] S.A. 712 [A] at 722 D-F; S V. 1QHANNES 1980[1] S.A. 531 [AD] at 532 H-533 A.
On the record evidence supportive of the conviction of the Appellant was overwhelming.
The proviso to Section 10 [1] of the High Court Act [Cap 04:02] which
confers appellate jurisdiction on the High Court stipulates that:
"
not withstanding that the Court is of the opinion that
any point raised might be decided in favour of the accused, no conviction shall be set aside or altered by reason of any irregularity or defect in the record of proceedings unless it appears to the Court that a failure of justice has resulted therefrom."
In other words, unless an irregularity or defect in the record goes to the very root of the matter and results in a miscarriage of justice, a conviction is not to be set aside if there is ample evidence in the record to support it.
The test to be applied may be simply stated as follows: But for the irregularity or defect would a Court properly directed on the
evidence in the record undoubtedly have convicted? This power given to Courts not to allow appeals on mere technicalities that do not amount to miscarriages of justice, if there
7
be ample evidence in support of the conviction, is to be found in jurisdictions of
most member states of the Commonwealth. "The object of the law", said
VISCOUNT SIMON LC. in STIRLAND V. D.P.P. 1944 A.C 315 at 328,
"whether civil or criminal, is to secure as far as possible, that justice is done
according to law." Earlier on in His Lordship's judgment at p. 321 he had stated
the test to be applied when invoking the proviso, thus:
"Apart altogether from the impeached questions, there was an overwhelming case proved against the appellant. When the transcript is examined it is evident that no reasonable jury, after a proper summing up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken/' [emphasis added]
Megaw L.J., applying that test in R V. PINK (1971) 55 Criminal Appeal R.
16, where an irregularity had occurred by reason of a second speech having been
made for the Prosecution on the trial of an unrepresented accused who had not
given evidence or called any witness except himself, said at page 22 of the report:
"In the view of this Court, no reasonable jury, unaided by a second address on behalf of the prosecution but with the benefit of a full and fair summing-up such as they had in this case, could have failed to bring in a verdict of guilty."
So also said Lord Cairns in R V. BROWN (1971) 55 Cr. App. R 478 at p.
484:
"We approach the question whether or not it is our duty to apply the proviso here by considering whether the evidence was overwhelming and whether a jury properly directed in this case could have come to any other verdict other than that of guilty."
8
The Lord Chief Justice, citing the above dictum of Lord Cairns with approval
in R V. PILCHER AND OTHERS (1974) 60 Cr. App. R 1 at p. 6, commented
that:
"The same point has been made in different language over and over again. It simply means that the Court must not apply the proviso unless it is quite clear that in the absence of the irregularity the consequence of the case would have been the same/'
And in R. V. SMITH (1977) 64 Cr. App. R. 217 at p. 221 Lawton LJ.
expressed himself as follows:
"We have reminded ourselves of the principles which have to be taken into consideration when this court comes to apply the proviso. These principles have been stated in their classic form in the decision of the House of Lords in STIRLAND V. D.P.P 1944 A.C. 315. That case was concerned with wrong admission of evidence and not with a wrong direction by the judge; but the same principle with modifications applies in a case such as this. In our judgment it is manifest on the facts that no reasonable jury, had they been directed correctly, could have failed to
find this appellant guilty."
See also the remarks of Nganunu C.J. in LENARD NHAMO V. S Cr. App.
No. 40/98 at p. 7 of the unreported judgment.
Section 13[3] of he Court of Appeal Act [Cap 04:01 ] provides that:
"Where the Court of Appeal, in an appeal against conviction, considers that, notwithstanding the fact that it is of the opinion
that the point raised in the appeal might be decided in favour of the appellant, there has been no substantial miscarriage of justice, it may dismiss the appeal."
Having regard to the overwhelming evidence in support of the charge against
the appellant, Dibotelo ]. was justified in disallowing the appeal. And applying the
principles in the cases above cited, the mere irregularity of not recording the
reasons for his conviction in the judgment of the trial Magistrate, does not amount to a substantial miscarriage of justice which will avail the appellant to overturn his conviction. The appeal is accordingly dismissed.
DELIVERED IN OPEN COURT AT LOBATSE THIS JULY, 1999.
DAY OF
K.R.A. KORSAH [JUDGE OF APPEAL]
TEBBUTT J.A., I agree
P.H. TEBBUTT PUDGE OF APPEAL]
M KUMLEBEN J.A., I agree
M. KUMLEBEN [JUDGE OF APPEAL]
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