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George v The State (Criminal Appeal No. 4 of 1999 ) [1999] BWCA 7; [1999] 1 B.L.R. 379 (CA) (23 July 1999)
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IN THE COURT OF APPEAL FOR THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
CRIMINAL APPEAL NO. 4 OF 1999
[HIGH COURT CRIMINAL APPEAL NO. 122 OF 1996]
In the matter between:
RABOIJANE GEORGE
1st Appellant
BIKANI KEPE
2nd Appellant
vs.
THE STATE
Respondent
Appellants in Person
Mr. F.K. Mpopang for the Respondent
JUDGMENT
CORAM: P.H. TEBBUTT J.A. K.R.A. KORSAH J.A. M. KUMLEBEN J.A.
TEBBUTT J.A.;
The main issue in this appeal is whether the throwing or spraying of a noxious substance by a person into the eyes of another so as to enable the former to steal something from the latter constitutes the use of "actual violence" to bring it within the definition of robbery
as set out in section 291 of the Penal Code Cap 08:01 and whether the mandatory period of 10 years imprisonment provided for in section
292[2] applies in this case.
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The two appellants were convicted in the Gaborone Magistrates Court of Robbery contrary to section 291 and 292 of the Penal Code and each sentenced to 10 years imprisonment. An appeal by both of them to
the High Court against their convictions and sentences was dismissed by Nganunu C.I.. He, however, gave them leave to appeal to this Court holding that this Court may take a view different to his on the issue set out above. He found that such action would constitute "actual violence".
The charge was that on the 18 November 1995 at the Score Supermarket by the Gaborone Railway Station, the two appellants acting together, stole cash and cheques totaling P54, 205.42, the property of Score Supermarket, and in doing so used violence against one prosecution witness in order to steal the money involved. The violence alleged is the spraying of the eyes of the witness with a harmful substance.
The evidence for the State was that money for banking from the Supermarket was put in a black metal trunk on the day in question and
the trunk was then to be taken by a security firm in a van to the bank. As the guards opened the back door of the van the assailants, who were two in number, attacked. Some noxious substance was sprayed or thrown into the eyes of the guards temporarily blinding them enabling the assailants to get the trunk and run away with it. One of the guards shouted and members of the public present gave chase. This attracted the attention of a policeman who joined the chase.
The two men, still carrying the trunk ran towards the railway station and hid from the crowd chasing them under a railway carriage where they were found by a railway security officer. They had the
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trunk with them. The policeman arrived on the scene and helped rescue the men from the mob. The appellants were the two men in question.
The two appellants gave evidence and denied their alleged involvement in the robbery. Their case was that that morning they were walking
towards the railway precincts when it started to drizzle and they commenced to run in order to reach some cover and escape the rain. They said that as they ran from the rain they saw members of the public throwing stones in their
direction and running towards them, whereupon their original run from the rain became one to escape from the public. They ran and
hid by the railway trucks that were parked at the station. In short they claimed that by a coincidence they were running away from
the rain and members of the public and the prosecution witnesses who gave evidence misunderstood the purpose of their running and
believed them to be thieves, whereas they were innocent.
The appellants, apart from being found with the trunk in their possession, were positively identified by the State witnesses. The
cashier of the Supermarket said she saw 2nd Appellant seizing the trunk and running away with it. He was a tall man wearing a navy blue jacket. That was also the policeman's description of him. 1st Appellant, the witnesses said, wore a hair style known as dreadlocks. It is not disputed that he had such a hair style at the time. He was wearing a green jacket. The one security guard said that 1st Appellant was the one who grabbed the trunk from them after a substance had been sprayed into his eyes temporarily blinding him. The policeman said the appellants ran past him
at close range and as they were being chased by the mob he paid particular attention to them and to the
4
clothes they were wearing. The two railway officers were positive in their identification of the appellants, maintaining that they had seen them adequately as they chased and struggled with them, having held
them until they passed them over to the policeman.
In their appeal to the High Court and again in this Court, the appellants contended that they had not been properly identified by the State witnesses.
In his judgment Nganunu C.I, said this:
"In these circumstances it cannot seriously be contended that the state witnesses on identification taken as a whole did not
have an adequate opportunity to see the appellants in order for them to adequately identify the appellants without difficulty. The appellants were seen at the site of the snatch, chased up to the railway, where they were surrounded by the pursuers. In the intervening chase they were recognised by a police officer and they were carrying the same tin trunk which they stole from the security van and they arrived with it at the railway where it was recovered by PW 6. The chain of events is unbroken so that the public was not chasing one set of thieves at one time and after a break the public mistook the appellants for the real thieves. The silent but unmistakable evidence of the public in chasing the two persons until they enclosed them under the carriage at the Railway Station is significant. It started at the door of the Score Supermarket. The story of the appellants that they were running away from the rain, and that the public somewhat misunderstood their behaviour must by ordinary human experience be a falsity. I feel that the trial court was completely right that the evidence of identification was proved beyond a reasonable doubt."
I agree completely with these findings.
Appellants contended that there was a contradiction between the evidence of the cashier and that of one of the security guards, the former stating that 2nd Appellant seized the trunk, the latter that it was 1" Appellant who did so.
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There is that contradiction but viewed against all the other evidence it is not fatal to the identification of appellants as the assailants. They also argued that the identification of them by the clothing they wore was also flawed as the clothes were not produced in Court. Again, there is ample other evidence on identification which Is so strong as to prove their implication in the offence beyond reasonable doubt.
1 turn then to the main issue and on which the right of appeal was granted viz. was violence sufficient to convict them of robbery proved against the appellants and whether the mandatory sentence of 10 years was correctly imposed.
As to this the evidence of the cashier was that she saw the one security guard wiping his eyes and saying something had been sprayed into them. The one guard said that when the trunk was seized something that smelt like tear gas was sprayed into his eyes and he struggled to wipe it out. The other said "an itching substance" had been sprayed into his eyes.
The Magistrate found that "the evidence led and believed by this Court is that a harmful tear-inducing substance was sprayed on both security guards eyes". No fault can, on the evidence, be found with that finding. Does this, however, amount to violence sufficient to have convicted the
appellants of robbery contrary to section 291 of the Penal Code?
Section 291 reads as follows:
"Any person who steals anything, and, at or immediately after the time of stealing it, uses or threatens to use actual violence
to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained is guilty of the offence termed robbery."
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The penalties for robbery are severe. Section 292[ 1 ] provides that:
"any person who commits the offence of robbery is liable to imprisonment for a term not exceeding 20 years, with corporal punishment."
Section 292 [2] provides as follows:
"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 personal violence to any person, he is liable to imprisonment for a minimum period of 10 years." [See section 4 of the Penal Code Amendment Act No. 13 of 1993].
It is therefore important that the requirement for the offence of robbery viz. the use or threat of actual violence be proved by the State and that, if the offender is to be sentenced to the minimum period of 10 years, it must be proved beyond reasonable doubt that he wounded, beat, struck or used any other personal violence to the victim.
Two questions arise from the foregoing:
[1] why were the words "actual violence" [my emphasis] used by the Legislature?
[2] what is meant by "other personal violence" in section 292[2]?
In respect of the first, the words "actual violence" have not been defined in the Penal Code. In the Shorter Oxford Dictionary
the word "actual" has been defined as inter alia "existing in act or fact; real; in action or existing at the time, present, current". It has been said that the word "actual" in a phrase such as "actual violence" does not
usually add to the meaning of the phrase and speaking
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generally the thing is not more itself because it is spoken of as actual or is an act more done or enjoined merely because it is said
or required to be "actually" done [see GLADSTONE V. PADWICK L.R. 6 Exch. 302]. However, in construing a clause in the South African Merchant Shipping Act referring to "actual fault or
privity" the Court said that it was to be considered as distinct from constructive fault where this had been caused by the person other than the person liable for such fault [see ATLANTIC HARVESTERS OF NAMIBIA TPTY1 LTD. V. UTERWESER REEDEREI GMBH OF BREMEN 1986 S.A. 865 [C] at 876 A. Perhaps the clue as to the Legislature's intention in introducing the word "actual" in the section is to be found in the common law definition of "assault" to be found in the South African Work on Criminal Law and Procedure Vol.
2, 2nd Edition by Hunt at 467 viz.: "assault consists in unlawfully and intentionally: [1] applying force to the person of another, or [2] inspiring
a belief in that other that force is immediately to be applied to him". That belief would have to be based upon reasonable grounds that the person making the threat has the present ability to effect his purpose. This was approved in R V. 1QLLY 1923 A.D. 176 at 179. If an assailant were to threaten to shoot his victim but had no firearm with which to carry out his threat,
this would, it seems, not amount to "actual violence". The violence must be real and the capacity to apply force must exist at the time. It seems to be, furthermore, that the words must be read in conjunction with the other words in the section viz. that it Is the use or threat of actual violence to a person or property of another that is the true interpretation of the wording. This would also be consonant with the use of the words "personal violence" in section 292[2].
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In a number of South African decisions dealing with cases where women's handbags have been snatched from them, the Court had to decide whether the conduct of the bag snatcher constituted robbery or theft.
In S V. S1THOLE 1981 [1 ] SA 1186 [N] the Court held that for a taking of property to amount to robbery the violence necessary to constitute the
offence one of robbery as distinct from theft "must be directed against the person of the victim" with the intention of overcoming,
preventing or forestalling resistance from the victim to the taking of his property [at 1189 B]. Similarly in S V. GQALOWE 1992 [2] SALR 172 [E] it was held that a pre-requisite for the crime of robbery is that there should be violence to the person of
the complainant. The same conclusion was reached in S V. MAS1LELA 1996[3] ALL SA 42 [T].
In SITHOLE's case supra at 1188 C-G, Thirion ). said this:
"Perhaps the problem of ascertaining the nature of the violence required for a theftuous taking to become robbery can best be approached by having regard to specific instances of violence which have come to be accepted as the kind of violence which either is or is not that required for robbery; the culprit
who stealthily cuts the strap by which a handbag is suspended from a woman's shoulder in order to clandestinely remove and steal the handbag and who achieves his purposes in that manner is not guilty of robbery but theft. Similarly the culprit who succeeds in deftly opening a handbag hanging from a woman's arm and who thereafter surreptitiously removes and steals the contents of the bag is guilty of theft only. The culprit who, in order to be able to steal a pedal cycle, uses force in order to smash the chain by which the pedal cycle is locked to a pole does not, merely because of use of such violence in the commission of the theft, make himself guilty of robbery, even though the pedal cycle is stolen from the immediate control of its owner. On the other hand the culprit who sneaks up to his unsuspecting victim and knocks him unconscious and then steals his property from his person is clearly guilty of robbery if the assault was committed with the
9
intention of preventing resistance to the taking of the property, and that is so despite the fact that the victim might have been rendered unconscious before he had come to realise what the purpose of the assault was."
So much for the words "actual violence" to the person of the victim. I have some difficulty in regard to their application to "any property" in order to constitute robbery. One can possibly conceive
of the would-be robber threatening to burn down his victim's house, or damaging or burning his motor car or damaging a family heirdloom to persuade the latter to hand over a thing to him but such actions may not be "actual violence" as considered above and may well fall under some other category of crime such as arson or malicious damage to property or house breaking. However, I do not need to consider this aspect and I refrain from doing so or making any finding thereon. It is not
relevant to the present appeal and was not raised or argued before this Court.
What then of the word "violence"?
"Violence" is not defined in the Penal Code but in the New Shorter Oxford
Dictionary it is defined as:
"The exercise of physical force so as to cause injury or damage to a person, property etc; physically violent behavior or treatment. An instance of this; a violent or injurious act; a physical assault."
In Words and Phrases Legally Defined "violence" is said to be the exercise of
effort "in the sense that it does damage impairing bodily functions." In other words
where harm is caused to the person of another by the actions of a person those
actions are said to be violent. And that would include injurious hurt even if it is
temporary. [See Smith and Hogan: Criminal Law 4th Edition p 562]. The
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wording of section 292[2] of the Penal Code reflects the aforegoing by setting out that an offender is liable to the mandatory minimum period of imprisonment for 10 years if he "wounds, beats, strikes" his victim or "uses any other personal violence" against the latter. One can think of many instances of the inflicting of harm to the person of another other than by wounding, beating or striking. Examples that come readily to mind are throwing boiling water over a person, setting his or her clothing alight, or knocking a person over with a car. The examples are not exhaustive of such acts of violence. The answer therefore to the second question raised above is that "personal violence" in section 292 [2] has reference to violence inflicted to the person of the complainant, whether
directly or indirectly.
Moreover, the degree of violence need be very slight. Any violence which would constitute an assault would suffice i.e. unlawfully and intentionally applying force to another. A mere friendly handshake or a pat on the back may not be sufficient but a forceful slap done intentionally would
probably suffice. Which is why bumping a person off balance was held in England sufficient to constitute robbery, fsee ANTHONY MARK DAWSON AND ANTHONY 1AMES V R. [1977] 64 Cr. App. 170]
It is my view that the spraying or throwing of a noxious or harmful substance into a person's eyes would constitute an assault. It causes harm to the person of the victim. It is therefore "actual violence to the person" of the victim as defined in section 291 and was "the use of other personal violence" as defined in section 292[2]. That is what happened in this case and appellants were therefore correctly
1]
convicted of robbery and their appeals to the High Court correctly dismissed by that Court.
On the sentence, it is noted that the appellants are first offenders and that the money seized was recovered. A court may therefore have sentenced them to a lesser sentence than 10 years imprisonment had it not been for section 292[2] but the sentence under that section is mandatory and
the Magistrate could do no else but impose it. The appeals against sentence too must therefore fail.
In the result the appeals of both appellants are dismissed and their convictions and sentences are confirmed.
DELIVERED IN OPEN COURT AT LOBATSE THIS 23 DAY OF JULY, 1999.
P.H. TEBBUTT [JUDGE OF APPEAL]
s
KORSAHJ.A.: I agree
K.R.A. KORSAH [JUDGE OF APPEAL]
KUMLEBEN J.A.: I agree
M. KUMLEBEN [JUDGE OF APPEAL]
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