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Mosutle v The State (Criminal Appeal No. 13/2000) [2000] BWCA 22; [2000] 2 B.L.R. 154 (CA) (28 July 2000)
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IN THE COURT OF APPEAL FOR BOTSWANA HELD AT LOBATSE
Criminal Appeal No. 13/2000
High Court Criminal Appeal No. 82/98
In the matter between:
PRIEL EMMANUEL MOSUTLE
Appellant
And
THE STATE
Respondent
Appellant in person
M.P. Phuthego for the Respondent
JUDGMENT
CORAM: AMISSAH P.
KUMLEBEN J.A. LORD WEIR J.A.
KUMLEBEN J.A.:
The appellant was arraigned on four counts in the magistrate's court: broadly stated, they were two of housebreaking with intent to
steal and two of theft. He was convicted on all counts and sentenced to various periods of imprisonment. His appeal to the High Court (Dibotelo J.) was dismissed. He thereupon applied for leave to appeal to this court. It was at this stage
that he raised the issue of autrefois convict by annexing to his application for leave to appeal the record of the proceedings in the Gaborone West Customary Court. In that court
he was charged with being in possession of "suspected stolen property" in contravention of
2
section 318 of the Penal Code. He was found guilty and sentenced on 18 May
1997. This was prior to his trial before the magistrate's court that started in ]uly
of that year. The issue of autrefois convict ought to have been raised by the
appellant when he was called upon to plead at that trial. However, his failure to do
so is no bar to this "defence" being raised at some later stage. (Cf S v. Tities
1990(2) SA 461 (A) 469). Dictates of fairness and common justice called for
its consideration. This was appreciated by Dibotelo J. who granted leave to appeal
to this court to have this issue decided. (I may add that the court a quo had ,
quite correctly if I may say so, dismissed the appeal on the merits).
To revert to the charges and convictions in the two trial courts, they were the
following:
Customary Court
The appellant was charged, as I have said, with possession of suspected stolen goods
and was thus convicted of possessing inter alia a "generator (Honda) Red" and a
"Sony CD. Radio Cassette."
Magistrate's Court
The following were the charges in this court:
Count 1
Burglary in contravention of section 300(2) of the Penal Code, that is,
housebreaking by night with intent to steal.
3
Count 2
Theft from a dwelling house, in contravention of section 271 of the Penal Code, of
inter alia a "Black Sony radio tape," valued at PI 117,00.
Count 3
Burglary as in count 1.
Count 4
Theft of inter alia a "Honda Generator red in colour" valued at P3,500.
All of these four counts relate to offences allegedly committed at house no. 25817
Gaborone West Block 9, the occupant and complainant being one Frida Makgato.
Though not specifically placed on record, it is common cause that the radio and
generator found in the possession of the appellant belonged to this woman and that
these same items are the subject matter of counts 2 and 4 respectively. (I may
mention that in each of the theft counts the other stolen property is of insignificant,
or at least of far lesser, value).
The appellant, who appeared in person to argue his appeal before us, submitted that the plea of autrefois convict should be upheld in respect of all four counts.
The fundamental requirement for a plea of autrefois convict to succeed is that the second charge be the same or substantially the same as the offence, the subject of the previous conviction. This is generally acknowledged. As Lord Morris said in
4
the leading English decision, Connelly v. Director of Public Prosecutions
1964A.C. 1254 at 1305
"On a plea of autrefois acquit or autrefois convict a man is not restricted to a comparison between the later indictment and some previous indictment or to the records of the court, but he may prove by evidence all such questions as to the identity of persons, dates and facts as are necessary to enable him to show that he is being
charged with an offence which is the same or is substantially the same as the one in respect of which he has been acquitted or convicted ..." (Emphasis added)
In R. v. Long 1958(1) S.A. 115 (A) 117 - Schreiner J.A. confirmed that "substantial identity is sufficient." And in this inquiry one must examine the substance of the two offences rather than depend upon any technical considerations. (See S. v. Manasewitz 1933 A.D. 165 at 169-170). As far back as 1819 Hume (Commentaries on the Law of Scotland Respecting Crimes, 2nd Ed., vol. 1, p. 448) dealing with the plea of "tholed an assize" [i.e. autrefois acquit] stated: "The Judge ... will look at the substance of the case."
In S. v. Ndou and others 1971 (1) S.A. 668(A) at 680 two indicia
customarily applied to decide this issue are adumbrated, and the second applied
(for ease of reference I have numbered and emphasised each):
"I come to the conclusion that, in relation to a plea of autrefois acquit , "substantial identity" is not - as contended by the State -confined to such offences as would have been competent verdicts at the previous trial. The overall inquiry is whether there exists that identity of subject-matter necessary to establish the exceptio rei judicatae. [1] Such identity is well recognised to exist when the crime charged in the second indictment would have been a
5
competent verdict on the first indictment. In my view, however, a plea of autrefois acquit tendered in terms of sec. 169(2)(d) of the Code must also be upheld if the offences charged in the two indictments are substantially
the same, even though the offence alleged in the second indictment would not have been a competent verdict on the first indictment. In determining whether substantial identify exists, the Court must, in my opinion, consider the essential ingredients of the criminal conduct respectively charged in the two indictments and apply the test as accepted by Kotze }.P. , inR. v. Kerr, (1907) 21 E.D.C. 324, namely: [2] whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first indictment/7
One notes that although [1] on the facts of that case was not satisfied, [2] was applied and the special plea upheld. In the instant case the same situation prevails. With reference to [1], in the customary court on the charge presented there a verdict of theft was not a competent one. As to [2],
evidence of the fact that the items found in the possession of the appellant were actually stolen would a_ fortiori satisfy this test.
Turning to a comparison of the charges, there is no similarity between burglary and possession of suspect goods. The former is committed - and completed - once the premises are broken into with the necessary intent. No element of the latter has any bearing upon the offence of burglary.
On the other hand, as to counts 2 and 4, there is a marked similarity between them and the charge in the customary court. The subject matter in each case corresponds. Theft is a continuing offence. The two offences are allied in the sense
6
that both have as their objective criminal liability in relation to stolen property. Once something is stolen by someone, the other offence is ipso facto committed: he is in possession of goods validly suspected of being stolen. For these reasons I consider that in respect of counts 2 and 4 the principle of autrefois convict applies. One is reassured by the inherent fairness of this conclusion. If in these circumstances the appellant could be charged with, and convicted of, theft there is manifestly a risk of duplication of punishment.
In the result the appeal succeeds in part. The convictions and sentences in respect of counts 1 and 3 are confirmed but those in respect of counts 2 and 4 are set aside.
Delivered in open court at Lobatse 28th July 2000
M. KUMLEBEN [JUDGE OF APPEAL]
I agree:
A.N.E. AMISSAH [PRESIDENT]
I agree:
LORD D.B. WEIR
IN THE COURT OF APPEAL FOR BOTSWANA
HELD AT LOBATSE
Criminal Appeal No. 13/2000
High Court Criminal Appeal No. 82/98
In the matter between:
PRIEL EMMANUEL MOSUTLE
Appellant
And
THE STATE
Respondent
Appellant in person
M.P. Phuthego for the Respondent
JUDGMENT
CORAM: AMISSAH P.
KUMLEBEN J.A. LORD WEIR J.A.
KUMLEBEN J.A.;
The appellant was arraigned on four counts in the magistrate's court: broadly stated, they were two of housebreaking with intent to
steal and two of theft. He was convicted on all counts and sentenced to various periods of imprisonment. His appeal to the High Court (Dibotelo ].) was dismissed. He thereupon applied for leave to appeal to this court. It was at this stage
that he raised the issue of autrefois convict by annexing to his application for leave to appeal the record of the proceedings in the Gaborone West Customary Court. In that court
he was charged with being in possession of "suspected stolen property" in contravention of
2
section 318 of the Penal Code. He was found guilty and sentenced on 18 May
1997. This was prior to his trial before the subordinate court that started in July
of that year. The issue of autrefois convict ought to have been raised by the
appellant when he was called upon to plead at that trial. However, his failure to do
so is no bar to this "defence" being raised at some later stage. (Cf S v. Tities
1990(2) SA 461 (A) 469). Dictates of fairness and common justice called for
its consideration. This was appreciated by Dibotelo ]. who granted leave to appeal
to this court to have this issue decided. (I may add that the court a quo had ,
quite correctly if I may say so, dismissed the appeal on the merits).
To revert to the charges and convictions in the two trial courts, they were the
following:
Customary Court
The appellant was charged, as I have said, with possession of suspected stolen goods
and was thus convicted of possessing inter alia a "generator (Honda) Red" and a
"Sony CD. Radio Cassette."
Magistrate's Court
The following were the charges in this court:
Count 1
Burglary in contravention of section 300(2) of the Penal Code, that is,
housebreaking by night with intent to steal.
3
Count 2
Theft from a dwelling house, in contravention of section 271 of the Penal Code, of
inter alia a "Black Sony radio tape," valued at PI 117,00.
Count 3
Burglary as in count 1.
Count 4
Theft of inter alia a "Honda Generator red in colour" valued at P3,500.
All of these four counts relate to offences allegedly committed at house no. 25817
Gaborone West Block 9, the occupant and complainant being one Frida Makgato.
Though not specifically placed on record, it is common cause that the radio and
generator found in the possession of the appellant belonged to this woman and that
these same items are the subject matter of counts 2 and 4 respectively. (I may
mention that in each of the theft counts the other stolen property is of insignificant,
or at least of far lesser, value).
The appellant, who appeared in person to argue his appeal before us, submitted that the plea of autrefois convict should be upheld in respect of all four counts.
The fundamental requirement for a plea of autrefois convict to succeed is that the second charge be the same or substantially the same as the offence, the subject of the previous conviction. This is generally acknowledged. As Lord Morris said in
4
the leading English decision, Connelly v. Director of Public Prosecutions 1964A.C. 1254 at 1305
"On a plea of autrefois acquit or autrefois convict a man is not
restricted to a comparison between the later indictment and some previous indictment or to the records of the court, but he may prove by evidence all such questions as to the identity of persons, dates and facts as are necessary to enable him to show that he is being
charged with an offence which is the same or is substantially the same as the one in respect of which he has been acquitted or convicted ..." (Emphasis added)
In R. v. Long 1958(1) S.A. 115 (A) 117 - Schreiner J.A. confirmed that "substantial identity is sufficient." And in this inquiry one must examine the substance of the two offences rather than depend upon any technical considerations. (See S. v. Manasewitz 1933 A.D. 165 at 169-170). As far back as 1819 Hume (Commentaries on the Law of Scotland Respecting Crimes, 2nd Ed., vol. 1, p. 448) dealing with the plea of "tholed an assize" [i.e. autrefois acquit] stated: "The ]udge ... will look at the substance of the case."
In S. v. Ndou and others 1971 (1) S.A. 668(A) at 680 two indicia
customarily applied to decide this issue are adumbrated, and the second applied
(for ease of reference I have numbered and emphasised each):
"I come to the conclusion that, in relation to a plea of autrefois acquit , "substantial identity" is not - as contended by the State -confined to such offences as would have been competent verdicts at the previous trial. The overall inquiry is whether there exists that identity of subject-matter necessary to establish the exceptio rei judicatae. [1] Such identity is well recognised to exist when the crime charged in the second indictment would have been a
5
competent verdict on the first indictment. In my view, however, a plea of autrefois acquit tendered in terms of sec. 169(2)(d) of the Code must also be upheld if the offences charged in the two indictments are substantially
the same, even though the offence alleged in the second indictment would not have been a competent verdict on the first indictment. In determining whether substantial identify exists, the Court must, in my opinion, consider the essential ingredients of the criminal conduct respectively charged in the two indictments and apply the test as accepted by Kotze J.P. , inR. v. Kerr, (1907) 21 E.D.C. 324, namely: [2] whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the
first indictment/7
One notes that although [1] on the facts of that case was not satisfied, [2] was applied and the special plea upheld. In the instant case the same situation prevails. With reference to [1], in the customary court on the charge presented there a verdict of theft was not a competent one. As to [2],
evidence of the fact that the items found in the possession of the appellant were actually stolen would a_ fortiori satisfy this test.
Turning to a comparison of the charges, there is no similarity between burglary and possession of suspect goods. The former is committed - and completed - once the premises are broken into with the necessary intent. No element of the latter has any bearing upon the offence of burglary.
On the other hand, as to counts 2 and 4, there is a marked similarity between them and the charge in the customary court. The subject matter in each case corresponds. Theft is a continuing offence. The two offences are allied in the sense
that both have as their objective criminal liability in relation to stolen property. Once something is stolen by someone, the other offence is ipso facto committed: he is in possession of goods validly suspected of being stolen. For these reasons I consider that in respect of counts 2 and 4 the principle of autrefois convict applies. One is reassured by the inherent fairness of this conclusion. If in these circumstances the appellant could be charged with, and convicted of, theft there is manifestly a risk of duplication of punishment.
In the result the appeal succeeds in part. The convictions and sentences in respect of counts 1 and 3 are confirmed but those in respect of counts 2 and 4 are set aside.
Delivered in open court at Lobatse on 28TH JULY 2000
M. KUMLEBEN [JUDGE OF APPEAL]
I agree:
A.N.E. AMISSAH [PRESIDENT]
V
I agree:
LORD D.B. WEIR
[JUDGE OF APPEAL]
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