Malaolo v The State (Criminal Appeal No. 22/99 ) [2000] BWCA 1; [2000] 1 B.L.R. 99 (CA) (1 January 2000)

In this matter we dismissed the appellant's appeal on the turn, without calling upon counsel for the Respondent, as we considered the appeal to be wholly unmeritorious. Our reasons for taking that decision now follow.

After his conviction on both counts by the learned trial magistrate, on 18 December 1998, it was ordered that he should undergo a test for HIV. The result of the test revealed that the Appellant was HIV positive. It then became incumbent for the trial court to commit the Appellant to the High Court for sentence, as the trial court lacked the jurisdiction to impose the minimum sentence stipulated by Section 3 [2] of the Penal Code (Amendment) Act No. 5 of 1998.

On 16^th June 1999, the Appellant appeared before Gittings J. for committal and was sentenced to 15 years imprisonment on the charge of Rape and 4 years imprisonment on the charge of Assault Occasioning actual bodily harm. The sentences were ordered to run concurrently.

His appeal is against both convictions and sentences imposed on the two counts. During the course of hearing this appeal he withdrew his appeal against sentence on Count 2. The facts of this case are appalling. At about 8p.m. on 4 August 1998, the complainant, a frail old lady, 78 years of age, was walking to her residence at Mabutsane Village with a baby strapped on her back. While going past a

homestead adjacent to her residence, a man suddenly pulled her into the yard. She raised a cry for help, but nobody came to her assistance. She was pulled into a hut and pushed on top of a sofa, undressed and ravished while the baby was still strapped on her back. By the light of the candle inside the hut, the complainant was able not only to identify objects in the hut, but also the person who had violated her. That person, she testified, was the appellant. She said she did not know the appellant personally, but she knew his parents and had occasionally heard people calling the appellant by the name Ufana. Ufana was only 28 years old at the time.

The complainant further testified that after the appellant had finished with her, she went to her residence with a view of reporting the incident to one Onkgopotse, her landlord, but her landlord was already asleep and so she also went to bed.

The next morning, 5^th August 1998, while proceeding to the Police Station to lay a complaint against the appellant, she went to the appellant's yard to confront him with an accusation of rape. Whereupon she was immediately assaulted by the Appellant all over her body with a sjambok. She went to lodge a complaint against the Appellant with the Police Officer stationed at Mabutsane Customary Court, of both rape and assault.

she had been raped the previous night by the Appellant; and that on the following morning, whilst passing by the Appellant's yard, she had been assaulted by the appellant. He issued a Medical Report Form to the Complainant and visited the scene of the alleged crimes. Legabala later reported the matter to Criminal Investigations Department Officers in Jwaneng.

Detective Sergeant Mapini who is attached to the Criminal Investigations Department at Jwaneng arrested the Appellant on 9^th August 1998, at Mabutsane. He took both the complainant and the Appellant to the alleged scene of crimes. He served the Appellant with a copy of the medical report. The appellant denied raping the complainant, but admitted assaulting her.

The medical report is consistent with the complainant's assertion that she was assaulted with a sjambok by the appellant. It states unequivocally, that multiple bruises of the arms, back, buttocks and thighs consistent with lashes were observed by Dr. Keineetse who conducted the examination on 7^th August 1998, two days after this old lady had been assaulted by the appellant.

The Doctor also took vaginal swabs from the complainant. He found that "there was a semen-like discharge on the vulva." He extracted this discharge for examination and found no evidence of spermatozoa. He however, testified that despite the absence of spermatozoa "it is highly likely that the complainant was sexually molested or raped."

The trial magistrate was obviously aware of the cautionary rule that he must first determine whether the complainant's testimony was reliable, credible and truthful. This he must do, unless the complainant is blatantly telling untruths, against the backdrop of the evidence adduced by the prosecution. If the complainant's testimony is found to be unreliable, incredible or untruthful then that is an end of the matter- the charge against the accused must be dismissed. In my view, the learned trial magistrate rightly applied the first part of the rule to the complainant's testimony which, like the trial magistrate, I find simple and straight-forward, reliable and credible, see S. v. MAPFUDZA 1982 m ZLR. 271 (SO cited with approval by BARON J.A. in MONAGENIG v. S. (1983) BLR 254 at 266 . It was not shown that she haboured some hostility towards the appellant prior to 4* August 1998, in fact she did not know him personally. It was not shown that she made false allegations against the appellant in order to shield her lover. At 78 she was most unlikely to have a lover. Her allegations were simple and well told.

This takes us to the second part of the cautionary rule which required that when the Court has found the evidence of the complainant to be reliable and truthful, then it may proceed to consider if the evidence of the complainant has been corroborated on material aspects, in order to decide whether in the particular circumstances, the danger of false incrimination can safely be regarded as having been excluded.

It is pertinent to note that the complainant, a frail old lady of 78 years, could not possibly put up any effective resistance to a stout young man 28 years of age, in the circumstances. She said she went to make an immediate report to her landlord, but he was already asleep. The making of a report of the incidence of rape is expected to be made without undue delay but at the earliest opportunity which, under all the circumstances, could reasonably be expected, to the first person whom the complainant could reasonably be expected to make it. In the circumstances, the first opportunity she had of making a report was on the morning of 5^th August 1998.

On the morning of 5^th August 1998, on her way to the Police Station to lay a charge, she passed through the appellant's yard to confront him with what he had done to her the night before. Upon seeing the complainant in his yard the appellant went for a sjambok and mercilessly assaulted the complainant with it. Now why would the appellant treat an old lady living next door to him in such a manner? The appellant's explanation that the complainant entered the yard and defecated twice in the presence of children was not supported by the only witness he called. The appellant's witness said the complainant was beaten by the appellant because she did not use the proper entrance to enter his yard. There is no question of her defecating in appellant's yard. Why the lie?

The medical report established that it was highly likely that the complainant was sexually molested or raped. In other words, the complainant was not fantasising . And I rule out the possibility of a frail old woman of 78, going to have sexual intercourse with someone after she had been severely assaulted all over with a sjambok and thereafter laying a false charge of rape against the appellant. To begin with, she went to the police station directly after leaving the appellant's yard. There was no time to find herself a lover before making the report on the morning of 5^th August 1998, even if she could. And after a severe assault with a sjambok I very much doubt whether even a younger woman's mind would have haboured thoughts of sex, unless she was a sex maniac - which the old lady was not.

Finally, in defence to the charge of rape on the evening of 4^th August 1998, the Appellant proffered an alibi that he was in Gaborone on the night of 4* August 1998. He said he left Gaborone at 8:30 on the morning of 5^th August 1998 and arrived at Mabutsane at 1:30 p.m. If this is true then he could not be the complainant's assailant on the evening of 4t^h August 1998.

"I am not sure if the accused arrived (at Mabutsane) on the 4^thAugust 1998. I only saw him on 5^th August 1998. I saw the accused assaulting the complainant. The accused hit the complainant for entering at a point not used as an entry point."

We know that the complainant entered the Appellant's yard on the morning of 5^thAugust 1998 en route to the Police Station. If, therefore, the appellant's witness did observe the assault on the complainant then the appellant's alibi is false. The question is: Why would the appellant put forward a false alibi.

"But if on the proved facts two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends of course on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness."

"That an innocent person may falsely deny certain facts because he fears that to admit them would be to imperil himself, is well known and has often been recognized by the Court. (Cf R. v Nel 1937 CPD 327; Rv. Du Plesis 1944 AD 314 at 323; R v. Gani 1958 (1) SA 102 (A) at 113 B - F; S v. Letsolo &. Others 1964 (4) SA 768 (A) at 776).

The warning in those cases against the drawing of a possibly erroneous inference from circumstances that an accused person lied in certain respects or performed some other act which raises suspicion of his guilt ought to have been specially heeded in the circumstances of this case."

In the instant case the fact of the Appellant's untruthfulness does not stand alone. There is the medical report, the presence of the sofas in the room where the incident occurred, and the false explanation of the unwarranted brutal attack on the complainant next morning. There is therefore no danger of drawing "a possibly erroneous inference" as was in Dladla's case (Supra). In this case the falsehoods were intended to rebut cogent evidence adduced by state witnesses and to distance the appellant from the scene of the crime.

In my view, the learned trial magistrate neither misdirected himself nor erred in the many respects contended for by the appellant. It is well to remember the wisdom expressed by the court in S v. W 1993 (1) S.A. C.R.(319 SEC) at 326: that the exercise of caution should not be allowed to displace the exercise of common sense.

Botswana: Court of Appeal

Malaolo v The State (Criminal Appeal No. 22/99 ) [2000] BWCA 1; [2000] 1 B.L.R. 99 (CA) (1 January 2000)