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Moroka v The State (Criminal Appeal No. 41/2000) [2001] BWCA 11; [2001] 1 B.L.R. 134 (CA) (31 January 2001)
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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO: 41/2000 HIGH COURT CRIMINAL APPEAL NO: 207/1996
In the matter between:
NDANAKA MOROKA
Appellant
and
THE STATE
Respondent
Mr. H. M. Sikhakhane for the Appellant
Mr. F. K. Mpopang with him Mr. K. Ngakaagae
for the Respondent
JUDGMENT
CORAM: TEBBUTT J.A KORSAH JA BLOFELD JA
TEBBUTT 1 A
An issue raised in this appeal is the duty of the presiding judicial officer in a criminal
trial to inform an accused of his right to legal representation. On the facts the
main issue is whether appellant was sufficiently identified as one of the assailants of
the complainant in an allegation of rape of her by two men, to justify a conviction
of the appellant as one of them.
2
The appellant was one of two accused who were charged before the magistrate at Kanye of rape contrary to Section 141 of the Penal Code. He was cited as the second accused. The magistrate convicted both him and
the first accused, one John Sera. The latter, however, absconded before sentence and has not been apprehended since. The appellant was sentenced to 13 years imprisonment. An appeal by him to the High Court against his conviction failed but the High Court (per Gittings ]) reduced his sentence to one of 10
years imprisonment. It also granted him leave to appeal to this Court.
The facts of the case are set out shortly in the judgment of Gittings ]., as follows: The complainant, Mmamosupi Mokalake, who at the trial was PWl, a 29 year old woman working as an Administration Assistant in the Agriculture Department in Mmathethe village, said that on the December 1995 she was with her friend Barbara Thamaga, PW2, in a bar called The Shebeen. PWl said that PW2 left the bar at about 11p.m. and PWl gave PW2 the key to her house. At around 12 midnight PWl said she left the Shebeen Bar to relieve herself. She said that on the night in question she was wearing a white blouse, black short pants, white panty and black sandals. She said that the first accused approached her, took her right hand and instructed her to go with him. PWl said that at this stage she and the 1st accused were about 3 meters from the back of the bar and the place was lit and she could see him clearly. She said that she was dragged about 500 meters from the bar when the 1st accused was joined by two other men and she said that although
3
It was dark, she could remember that one man was tall and the other man was short. She said she was assaulted by the taller man with his fist and 1" accused also punched her.
She said she tried to run away and shouted but no one came to her rescue. The music was loud in the bar. She continued that the three men dragged her and tore her blouse. She also lost a shoe whilst being dragged.
They then took off all her clothes leaving her wearing only a brassiere. She said the two men who were with 1st accused were the 1st accused's younger brother, called Buki Sera, who was PW4, and the appellant. PW1 continued that accused 1 and the appellant were the ones who assaulted her and after she had been undressed, PW4, Buki, asked 1st and 2nd accused to leave her alone. PWl said that 1st accused chased PW4 away but appellant said nothing. PW4 went away when chased. PWl said that she was pulled into a dark house by 1" accused and the appellant and she was thrown down on the floor and repeatedly raped by both 1" accused and appellant. She said that 1st accused had intercourse with her without her consent six times and the appellant had intercourse with her without her consent five times. She said it was accused 1 who had sexual intercourse with her on
the last occasion and during the rape the appellant went outside and he was followed later by 1st accused. She said she heard PW4 call her to his room. She went to his room and hid behind PW4's bed. 1" accused came into that room and slept on
another bed which was in the room. When 1" accused fell asleep PW4 took her out of the house and told her to run away.
4
She then said she went to a local police officer's house. She was naked except for the brassiere she was wearing. There was no one in the police officer's house. She then went to her own home , still naked, where she found PW2 to whom she complained about being raped.
She then dressed and went to a tribal police officer with PW2 and reported the rape to him. At about 5am PW1 took the police officer and a female police officer to the house where she said she had been raped. In the house the police found her panty, pants and one sandal under the bed upon which 1st accused had been sleeping. They also went back along the route where she had been dragged where they found the other sandal. PW1 said they did not find the blouse. PW1 was taken to Kanye hospital for medical examination. She was injured on the knees and face. She said, when asked by Court, that she could see 1 * accused with the aid of the light at the bar but as it was dark when they met him, she could only observe the height of the appellant. He was a tall man. Under cross examination by the appellant she repeated that she had been assaulted and raped by 1" accused and the appellant. She also repeated that she noticed his height. She then added this significant piece of evidence:
"All the time accused 1 was calling your name or referring to you by name.
He called you Ndanaka." She said that she observed his height and identified the face of the appellant the following day. She said "you also assaulted me this is why I recognise you. I know that you were with accused land Buki." (PW4). The magistrate noted that the appellant was a tall man and that his name is Ndanaka.
5
PW2, Barbara Thamaga, testified that she was 24 years old and employed as a Court Clerk at the Customary Court and had been a friend of PWl since the beginning of 1995. She corroborated PWl at being at the
Shebeen Bar. She stated she left at about 11 p.m. She had the keys to the house of PWl. She said she next saw PWl at her house at around 4am, naked apart from a brassiere. She said that PWl was crying and complained that she had
been raped. PW2 said that when she asked her who had raped her PWl said "She did not know her rapists' names but she told me that she was raped in a house and she could identify the house." She said her clothes were still there. PW2 corroborated the evidence of PWl as far as going to the police was concerned. She also saw the injuries sustained by PWl. PW3, Sotho Moatlanyegi, said he was the cousin of 1st accused and also knew the appellant as they had been to school together. On the night in question he was drinking in the Shebeen Bar with the appellant.
He left the bar at about 1;30 to 2 am. He said he saw 1st accused with a certain woman whom he did not know. He asked 1st accused for matches, lit a cigarette and left the scene and went home. He said 1rt accused and the appellant were with the woman when he left. He said that he did not know why the appellant remained at the scene.
The next witness was PW4, Buki Sera, a brother of 1st accused. He said he also knew the appellant and said he was in the Shebeen Bar on the day in question. He said that when the bar closed at around 2 am he went home alone. When he got home he met the appellant "next to his yard." The appellant was leaving it. PW4 said that the appellant asked where 1st accused was. He told him the latter was
6
probably sleeping. PW4 said that he then went into his room and went to sleep. He did not notice if anyone was in the room. After a while he awoke. He heard a woman say she was cold and wanted to go home, He then called her into his bed where he hid her from 1st accused. She later left.
Police constable Mosarwe (PW5) said that at about 5:30 am on 17 December 1995, PW1 came to his house with a police officer. She complained that she had been raped by two men. Her left eye was swollen and
she had injuries to her knees . She took him to the house where the rape had allegedly taken place. They found the 1" accused and PW4 sleeping in a room but on different beds. Under 1st accused's bed were a pair of short black pants and a panty which PW1 identified as her clothes. 1 * accused said he had had sex with the complainant with her consent. He said that PW4 said in the presence of 1st accused that he had heard PW1 shouting and asking 1st accused to leave her. PW5 said PW4 told him that he had seen the appellant around his house early in the morning and PW5 said they found the appellant sleeping at his home and when he was questioned about the rape the appellant said that he and 1" accused had parted at the Shebeen Bar. When PW1 saw the appellant she positively identified him as one of her assailants. The appellant denied that this was so.
The doctor who examined the complainant said he found a bruise below the left eye, fresh bruises on both knees and an extra genital injury. He said that PW1 complained of assault and rape. He said during the examination vaginal smears
7
were taken and on examination spermatozoa was found to be present. He concluded that penetration had occurred.
The appellant gave evidence in his defence . He said he was 25 yeas old and unemployed. He confirmed that he had been in the Shebeen Bar and said he had met PW4 and later saw 1st accused.
He said he left the bar at 1:30 a.m with PW3. PW3 said that on the way home he met 1st accused, with a lady whom he did not know. He asked for a match from 1" accused. PW3 lit a cigarette and proceeded on his way
leaving him with 1$t accused and the woman. They walked along together until they passed next to his yard when he went into his house and slept. He said it was around 6am in the morning when he was awoken by his cousin saying that the Police wanted to see him. He said he dressed and went to see them. He said he was told by the police that he and 1st accused had raped a woman. The appellant said he did not know PW1.
In cross examination the appellant said he and 1n accused had been friends from "our youth". He said he knew some of the 1st accused's girl friends and he said he did not know PW1 and he said that if PW1 and accused 1 had been lovers for a year he would have known. He then said he had met PW4 "at around something to 1 am" and had asked PW4 where 1st accused was since "I wanted to work the following day" The appellant said PW4 lied when he said that he found 1" accused sleeping inside the house and said that PW4 lied when he said he met him and 1"
8
accused with the complainant. PW4 had lied throughout about him. He said that PW1 lied when she said "I had non consensual sexual intercourse with her."
Before considering the merits of the appeal it is necessary to deal with an aspect of the trial with which Mr. Sikhakhane, in an able and full argument on behalf of the appellant, dealt at some length. It is this. Appellant,
who was unrepresented at the trial was apparently not asked by the Magistrate if he required legal representation and his attention
was not directed to his right to legal representation. This, so Mr. Sikhakhane submitted, had denied the appellant the right to a fair trial and was an irregularity such as to vitiate the entire proceedings.
There is in common law a fundamental right of an individual to have access to legal advice and to legal representation. That right of an accused person to legal representation is now also enshrined in Section 10 of the Constitution of Botswana (see Marumo v. The State 1990 BLR 659 at 662 C-D; Maphane v. The State 1991 BLR 304 (CA) at 311). What is the duty of a trial court to ensure that an unrepresented accused is made aware of that right?
The question whether it is the duty of a judicial officer to inform an unrepresented accused of his right to legal representation,
and whether his failure to do so will inevitably result in an irregularity in the judicial proceedings, was considered in the South African Appellate Division case of S v. Mabaso and Another 1990 (3) SA
9
185 (A.D.) It was held in that case that a ]udidical Officer presiding at criminal proceedings does have a duty to inform an unrepresented
accused of his right to legal representation and that a failure to do so might lead a court of appeal to conclude that there has been a failure of justice and that the conviction should be set aside.
In earlier decisions the South African court have also had occasion to consider that duty, (see S. v. Radebe 1988 (1) SA 191 (T)} S. v. Rudman 1989 (3) SA 368 (E).
In Rudman's case the court held that a judicial officer is not under a peremptory duty to inform an unrepresented accused of his entitlement to legal representation but that it was salutary practise to do so, and should be done in every case.
A similar view, expressed by Goldstone J in Radebe's case, was approved by the Appellant Division in Mabaso's case, the court at page 203 G referring to "this salutary practice."
It has however also been held in the South African cases that a failure to inform the accused of his right to legal representation does not necessarily vitiate the proceedings: in each case this would depend on whether there has been a failure of justice (See S v. Rudman supra, S v. Radebe supra at 961; S v Mabaso at 204 C-D.
f
10
This court is in full agreement with the views expressed in the South African cases. In respect of the judicial officer's duty therefore it is not a peremptory or mandatory duty on a judicial officer to inform an accused
person of his right to legal representation but it is a salutary practice and should be done in every case, but whether a failure to do so will vitiate the proceedings will depend on whether there has been a failure of justice .
The Court of Appeal of Botswana Act (Cap 04:01) provides in Section 13 (3)
that:-
"Where the Court of Appeal, in an appeal against conviction, considers that notwithstanding the fact that it is of opinion that the point raised in an appeal might be decided in favour of the appellant, there
has been no substantial miscarriage of justice, it may dismiss the appeal."
In general whether an irregularity has resulted in a failure of justice will depend upon
"Whether the Court hearing the appeal considers, on the evidence (and
credibility findings if any) unaffected by the irregularity or defect, that there
is proof beyond reasonable doubt. If it does so consider, there was no
resultant failure of justice."
(See S v. Tuge 1966 (4) S.A. 565 (A) at 568 F-G. S v. Rudman supra at 374 I
- J. and see in Botswana lames Bongo V. State Cr. App No. 4/1998 (Court of
Appeal) and Nini Makwapeng v. State Cr.App No. 29/1998 (CA) In the last
11
mentioned case, Aguda JA stated, in regard to an irregularity in procedure in a trial court (in that case a failure to comply with Section 181 of the Criminal Procedure and Evidence Act) the following:
"The approach which I believe that any appeal court of this country - be it the High Court of the Court of Appeal
must take and which I believe is in accord with what the legislature of this country thought should meet the demands of justice should be this. Such a court must accept that the failure of a trial court to comply with the provisions of Section 181 of the Criminal Procedure and Evidence Act constitutes an irregularity
in procedure. However, in deciding the issue whether or not to set aside the conviction following such an irregularity in procedure, the appeal court must 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 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. This in my view, must be the proper approach for appeal courts to follow in cases of this nature."
In the present case for the reasons which I shall set out below and applying the tests just referred to, there was in my view no failure of justice. Mr. Sikhakhane's submission on this aspect must therefore fail. I turn
to the merits.
12
It is undisputed that the complainant was raped. The injuries she sustained, the presence of spermatozoa confirming intercourse with penetration, her arrival at her home where she was seen naked and crying by PW2 and her complaint to the latter that she had been raped point conclusively to this. It is also, on the evidence, incontrovertible that she was raped by 1st accused. The question is whether she was also raped by the appellant.
Her complaint to PW2 and PW4 when he was hiding her and to the police officers to whom she had reported, was that two men had raped
her. This evidence was never challenged. Was the appellant, however, identified beyond reasonable doubt as the second man?
The identification of him consists primarily of two factors: (1) that the complainant says that the second man who was with 1" accused when she was assaulted, dragged to the house and raped was a tall man and the appellant is tall and {ii} that the 1st accused constantly during the time she was being raped, called or referred to the second man by his name and that name was "Ndanaka" which is the name of the appellant. It was submitted by Mr. Sikhakhane that there were many occasions on which the complainant may have heard the appellant
being referred to as Ndanaka e.g. at the time that the appellant was with 1st accused when PW3 asked the latter for a match; or when she, 1st accused and appellant were on their way to the house where she was raped; or after appellant's arrest. Mr. Sikhakhane submitted that because of appellant's lack of legal representation those possibilities were never put to the complainant in cross -examination. The complainant's evidence, however,
13
was clear. She said that she heard his name during her ordeal In the house. She could, had she been a mendacious witness, have said that she heard it then as well as on the other occasions. She, however, never did so. The magistrate found her to be a credible witness who was not shaken by cross-examination and who gave her evidence in a forthright manner. A court on appeal will not upset a trial court's findings on credibility unless they are manifestly
incorrect or unjustified. 1 do not find these findings to be such. Indeed, a reading of the record makes it clear that they were merited and correct. Her evidence that appellant's name was repeatedly mentioned while she was being raped by the two men is therefore to be believed and accepted.
A significant factor is that it was upon the complainant's telling the police that the name of one of her assailants was Ndanaka that they proceeded to look for such person and it was after PW4, who was at the house identified by the complainant, had told the police that he knew that Ndanaka was the appellant and where he lived that the police were able to follow up this information and arrest the appellant.
It must also be recalled that PW4 said that he had seen the appellant in the vicinity of his yard at a time when the I" accused and the complainant must have been inside it. She was, on her evidence, in the hut when PW4 entered it.
At this juncture it is necessary to refer to a further unsatisfactory aspect of the trial upon which Mr. Sikhakhane placed considerable reliance. During their evidence the prosecution applied to the trial court to have statements which both PW3 and PW4
14
made to the police shown to them and upon, their confirming their signatures on them, to have them admitted in evidence.
Each statement contained deviations from the witnesses' testimony in court. PW3 denied that his statement accurately reflected what he told the police but PW4 said that it did. In the statement he said that he had met the appellant at the door of his house when the latter was leaving; in court
he said that when he met the appellant the latter was 50 meters away from the house. The magistrate held that what PW4 had said in his statement was the true version
and relied on this to find that the appellant was seen by PW4 at the doorway of the house as he was leaving it. She used this as one of the material factors
in convicting the appellant. It was a clear irregularity and a misdirection by the magistrate to allow the statements to be produced and admitted as part of the evidence. She did not do this so as to have PW4 (or PW3 for that matter) declared a hostile witness. Moreover, she did not allow PW3 or PW4 to cross -examine the witnesses on the statement. Her reliance upon them on coming to her findings on the case was therefore a clear irregularity.
Was it, however, such as to vitiate the proceedings? I do not think it was. I have already set out the test to be applied by a court of appeal where an irregularity has occurred in the procedure in the trial court. I need not repeat it. This court must look at all the facts established by the totality of the evidence and decide if, despite the irregularity, it is satisfied that the guilt of the appellant has been proved beyond reasonable doubt. The police officer, who
had been given the name
15
Ndanaka by the complainant testified that PW4 told her that Ndanaka was the appellant and that he had seen him that night in the vicinity of his hut and that this led to the police officer's arresting him. The salient facts therefore are that the appellant was in the company of 1st accused and the complainant at a late hour in the night of 16 December 1995 (viz after 2am); that shortly thereafter the complainant was raped by 1st accused and another man in the hut of 1st accused and PW4. (there is no evidence of any man other than the appellant being seen in the company of 1st accused and the appellant at that late hour of the night); that during her ordeal 1st accused repeatedly called the second man who raped her "Ndanaka,' the name of the appellant; that she told the police when she reported to them that she had been raped by a man called Ndanaka at PW4's house; and that PW4 told the police when they went to his house to investigate the matter that Ndanaka was the appellant and that he had seen him in the vicinity of his house at a time when the complainant was obviously still
in the house. These facts in my view establish the identity of the appellant as the second rapist beyond reasonable doubt and are sufficient to prove his guilt despite the irregular admission of the statements
into the evidence.
In the result the appeal must fail. No argument was directed on appeal to the sentence imposed by Gittings ], which in my view, was a condign one. The conviction and sentence are accordingly confirmed and it
is so ordered.
DELIVERED IN OPEN COURT THIS 31st DAY OF January 2001
I agree
I agree
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P. H. TEBBUTT
JUDGE OF COURT OF APPEAL
K. R. A KORSAH
JUDGE OF COURT OF APPEAL
SIR J. BLOFELD
JUDGE OF COURT OF APPEAL
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