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Pheto v The State (Criminal Application No. 20/99 ) [2000] BWCA 2; [2000] 1 B.L.R. 14 (CA) (1 January 2000)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE

COURT OF APPEAL CRIMINAL APPLICATION NO. 20/99
HIGH COURT CRIMINAL APPEAL NO. 141/97

In the matter between:

ABEL PHETO Applicant

And

THE STATE Respondent

Mr. Fashole-Luke for the Applicant Mrs. Mangori for the Respondent

JUDGMENT

CORAM: T.A. AGUDA JA

P.H. TEBBUTT JA LORD WEIR JA

WEIR JA:

The appellant and two other men were convicted of the crime of rape at the Magistrates Court, Mochudi. All three appealed to the High Court and for reasons which are not relevant to the disposal of this case, the appeals of the other two men were allowed. The appeal by the appellant to the High Court was dismissed but he has appealed with leave to this Court.

According to the evidence of the complainant, M.S., she was walking home from a place of entertainment on the night in question when she met the three accused. She stated that the appellant tripped her, causing her to fall to the ground. Her underclothes were removed and the three men proceeded in turn to have sexual intercourse with her against her will. The appellant then had intercourse with her a second time after which all three men left her.

In his judgment, the magistrate found it proved that the appellant had raped the complainant. He believed the account of events given by her supported, as it was, by certain corroborative evidence. He rejected the appellant's defence of alibi as being false. The essence of the submission of Counsel for the appellant was that in view of certain contradictions and inconsistencies in the prosecution evidence, to which it was said the magistrate had failed properly to apply his mind, the complainant should not have been accepted as a credible witness. Moreover, there was no reliable independent testimony supporting the complainant's evidence. Therefore the magistrate should not have convicted the appellant.

Before examining this submission in greater detail, it is necessary to emphasise the limited role which an appellate court has in reviewing the assessment of the evidence of witnesses whom the court a quo has both seen and heard. It is only where "the appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, that the matter will then become at large for the appellate court" (WATT VS THOMAS 1947 A.C. 484 at 488).

Counsel for the appellant submitted that the complainant's evidence demonstrated certain contradictions which should have rendered her testimony suspect. First there was evidence by one Mathukwani Thukwi (PW2) who said that he was with the three men. They met the complainant who said she was tired and then sat down. He went home and left the three men with her. In contrast, the complainant said that PW2 was not of the group. Moreover, PW2 unlike the complainant did not say anything about her being tripped up.

Second, T.M. (PW3), with whom the complainant cohabited and who met her shortly after the event claimed in evidence that the complainant was injured on the left hand and above her breast whereas the doctor who examined her two days after the event made no reference to any breast injury. This, it was submitted, rendered his testimony unreliable in so far as it was founded upon by the prosecution.

Finally it was said that the witness Chester Lucas (PW4), an alleged eye-witness, contradicted himself in a material way by stating in evidence in chief that the appellant was involved in the event while at a later stage, he stated that he never encountered him that night.

It was submitted that if the magistrate had applied his mind to these particular points of detail, he should have concluded that the testimony of these witnesses was flawed and unreliable. In particular the magistrate should not have come to the conclusion that by taking into account his favourable impression of her demeanour, the complainant was a reliable witness.

In order that this submission can be put into context, it is necessary to review the evidence of the complainant and the above mentioned witnesses. The case for the prosecution depended, of course, upon acceptance of the complainant's evidence as truthful and reliable. She gave details of the assault and stated that she screamed as it was taking place. She further stated that while the appellant was having intercourse with her, Chester came on the scene. The appellant got off her and told him that he would stab him with a knife. After the three men left her, she started to make her way home. She had gone no distance when she met M.. She told him what had happened. They went back to the scene where he managed with the aid of a torch to find her shoes, panties and headcloth.

In evidence, M. said he met the appellant and found her crying. She told him that the three men had had sexual intercourse with her. The two of them went back to the scene where M. with the aid of a torch managed to find her shoes, panties and headcloth.

Chester was an actual eyewitness of the assault by the appellant. He stated that the complainant was screaming and that "it was clear that the accused (i.e. the appellant) was having intercourse with M.." He warned him that he would land himself "in problems". The reaction of the appellant was to threaten to stab him.

In my judgment, the evidence outlined above was more than sufficient to prove beyond reasonable doubt that the appellant was guilty of rape. Corroboration of the complainant's evidence was required in this case not merely as a legal requirement but as a means of testing the veracity of her evidence. Her account was corroborated by the eyewitness evidence of Chester. The fact that she was an unwilling participant in sexual intercourse is also confirmed by Chester who spoke of hearing her scream. Confirmation that this was a violent episode comes from M. who spoke of finding her clothes scattered over an area in the vicinity of the scene. As if this was not enough, the second and third accused in evidence volunteered that the appellant was on top of the complainant. In addition to this corroboration, the magistrate had the evidence of M. finding the complainant in a state of distress near the scene. She also told him that she had been raped by the three men. This latter adminicle of evidence, although not corroboration, was something which the magistrate would have been entitled to view as having a positive bearing upon the complainant's credibility.

All this evidence represented a formidable case against the appellant, so strong indeed that the points made by Counsel in criticism of the evidence must be seen as no more than a series of quibbles. There can be very few cases in which testimonies differing with each other on points of detail are not found. Where this happens, it does not necessarily reflect on the reliability of the witnesses in question. Witnesses' who honestly endeavour to tell the truth as they recall it often differ on points of detail. It is only where such differences relate to vital points in proving a case that they may come to be of importance. That is not the case here. The evidence of M. concerning the injury of the appellant's breast was of minor importance. It is possible that this injury was present at the time but not noticeable when she was examined by the doctor some days later. The evidence of Mothukwani was of peripheral significance since he was not present when the rape took place. The passage in Chester's evidence that the appellant was not at the scene is so completely at variance with the rest of his evidence and indeed with the evidence of the appellant and the other two accused that one wonders if the transcript is accurate at that point. It may well be that this particular answer does not relate to the appellant's participation in the rape but to another occasion that night.

In summary, the magistrate had ample material from a number of sources to enable him to conclude, along with his assessment of her demeanour, that the complainant's account was proved. There is nothing in the manner in which the magistrate analysed the evidence in his judgment which is open to valid criticism.

At the very end of his submissions, Counsel for the appellant pointed out, correctly, that neither Counsel for the State nor the accused had been invited to address the court after the conclusion of the evidence. The accused did not have the benefit of legal representation. At the conclusion of the evidence for the prosecution, the magistrate very properly advised the accused of their right to remain silent, to give evidence on oath, or to make an unsworn declaration. All three accused elected to give evidence on oath and the appellant led the evidence of a witness in support of his defence of alibi. After the third accused had given evidence, the trial was adjourned to a future date for judgment to be delivered. It is not clear whether the failure to invite submissions was deliberate or through oversight. Whatever be the position, the fact is that there was a disregard of Section 181 of the Criminal Procedure and Evidence Act which provides:

"After all the evidence has been adduced, the prosecutor shall be entitled to address the court, summing up the whole case; and the accused, or each of the accused if more than one, shall be entitled by himself or his legal representative to address the court."

Following what was said in the judgment of Aguda JA (with whom the majority of the court agreed) in the recent case of NINI MAKWAPENG VS THE STATE (CR.APP.29/98) it has to be accepted that the failure on the part of the magistrate to invite parties to address the court at the conclusion of their evidence was an irregularity. However, such a failure does not ipso facto amount to a fatal irregularity or failure of justice, and it is open to this court in terms of Section 13(3) of the Court of Appeal to hold that there was no substantial miscarriage of justice and dismiss the appeal (Makwapeng supra at p.16). The question, therefore, is whether the failure to afford the accused, including the appellant, an opportunity to address the court has resulted in a miscarriage of justice.

The proper approach to this question, following the guidance given in Makwapeng supra (at p9) is for this court to "look at all the facts established by the totality of the evidence led at the trial and if it is satisfied that the guilt of the appellant has been established beyond reasonable doubt, and that there was nothing the appellant could have told the trial court that would affect the verdict in any way, then the appeal court must exercise the power to do justice given to it by the Act establishing it, and dismiss the appeal". In my opinion, this involves the most careful examination of the evidence and it must be only in a very clear case that an appeal court can be satisfied that there was no miscarriage of justice where an accused person has not been invited to address the court. I have no doubt that if there had been any basis for suggesting a substantial miscarriage of justice in this case, Counsel would not have had any hesitation in pressing the point. In point of fact, Counsel was content to draw our attention to the irregularity itself but developed no submissions thereon. Having examined carefully the evidence led at the trial, I find it impossible to discern any point or points which might have been advanced by the appellant, however persuasively argued, which would have caused any doubt about his guilt to enter the mind of the magistrate. Certainly none of the points put forward by Counsel for the appellant come into this category. Simply put, the evidence against the appellant was overwhelming.

This is by no means the first time this irregularity in following proper procedure has occurred. It was observed in Makwapeng supra that there had been a marked increase in the number of cases where this point had been taken on appeal. In my opinion, it is essential that all trial judges and magistrates should be reminded of the need to take the obvious and elementary step of complying invariably with the provisions of Section 181 of the Criminal Procedure and Evidence Act.

For the foregoing reasons, I am of opinion that the appeal should be dismissed.

DELIVERED IN OPEN COURT THIS DAY OF JANUARY 2000.

LORD WEIR (JUDGE OF APPEAL)

T.A. AGUDA (JUDGE OF APPEAL)

P.H. TEBBUTT (JUDGE OF APPEAL)