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IN
THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Criminal Appeal No. 43/2000
High Court Criminal Committal No. F13/2000
In the matter between:
JOSEPH TALANE Appellant
vs
THE STATE Respondent
Mr E.W.F. Luke II for the Appellant Mrs. R. Segokgo for the Respondent
JUDGMENT
CORAM: K.R.A. KORSAH J.A. M. KUMLEBEN J.A. SIR JOHN BLOFELD J.A.
SIR JOHN BLOFELD J.A.
On 13th August 1999 this Appellant was convicted of rape contrary to Sections 141 and 142 of the Penal Code as amended by Sections 3 and 4 of Act No.5/98 [Cap 08:01] by the Mahalapye Magistrate's Court. On 20th November
1999 he was committed for sentence to the High Court
under Section 295(1)
of the Criminal Procedure and Evidence Act
[Cap 08:02]. On 20th September
2000 he was sentenced by Mr Justice Letsididi to ten
(10) years
imprisonment. He now appeals against conviction only.
THE FACTS
The complainant D.O. (PW1) lived at Shakwe village. In her evidence she said that she knew the Appellant because he had once gone to Shakwe to look for a policeman called Baakile but she did not know his name.
On 16th November 1998 at about 0600 hours she and her friend Mmametse Thubako (PW3) went to cut thatching grass. While at work they saw the Appellant who was shouting either at them or at some cattle. He came after them holding some stones in his hands. He asked them what they were doing and whether they knew him. PW1 said she did but PW3 said she did not. He then asked PW1 to go with him. At this stage he placed the stones on his shoes. PW3 started to leave but the Appellant called her back and she came back. Then PW1 says he unbuttoned PW3's dress and then asked both of them to undress completely. She says that they both did undress completely because he appeared angry and because he had stones. After undressing they walked off, both naked, and he followed. PW3's account is similar to that of PW1. In the bush he asked them both to lie down and threatened them both with the stones. PW1's evidence was that he asked them whom he should have sexual intercourse with first and they both said they did not know. PW1 says he then came to her with his trousers pulled down to his thighs and had sexual intercourse with her. By then he had dropped the stones from his hands. PW3 says he first touched PW1's private parts and asked her how long she had been pregnant for and that PW1 replied "two months". She said that after that he had sexual intercourse with her. In cross-examination she was asked if the Appellant was dressed when he had sexual intercourse with PW1 and she replied "yes you were". Both say that when he had finished sexual intercourse with PW1 he gave them permission to go on cutting grass. Both put their clothes on again and left. They ran to the village. On arrival PW1 told her mother (PW2) what had happened and then went to the police. PW2 said that PW1 had told her that she had been raped and that her assailant was a man who had come to Shakwe previously to see a man called Karta.
PW4 was the arresting officer. At some stage after Appellant's arrest he brought PW1 to see him and she identified him as her assailant.
The prosecution produced a medical report on the complainant. It was admitted by consent. No injuries were found upon her. The doctor reported that clinically there were no findings suggestive of the alleged rape so his evidence did not assist the prosecution.
At trial the Appellant was unrepresented. He asked the witnesses few questions and did not fully put his case to them. As he was unrepresented he is not to be criticised for that.
On 5th February 1999 the Appellant was arrested. When questioned by police he denied the allegation of rape but said no more. At trial he gave evidence. He said that in November 1998 he had been to Shakwe to visit a policeman. When he arrived there he did not know where the policeman lived and by chance spoke to PW1 to find out. He said he was attracted by her and proposed love to her. She replied that she already had someone. He remained at Shakwe that day and continued to press her. In the evening they both were out drinking and she told him that she accepted his proposal. At the end of the evening they went to her house and had consensual sexual intercourse. He said that he then left her house and outside met a man who tried to fight with him. He realised he must have been PWI's boyfriend. He said he knew nothing whatsoever about the incident in the bush when he was supposed to have raped PW1. He said he never met PW1 on that occasion, he never carried stones or asked anyone to undress or had sex with PW1 in the presence of PW3.
The Appellant submits that this conviction should be set aside because the evidence of identification is unsatisfactory. He also submits that the Magistrate failed adequately to analyse the evidence before deciding to accept both PW1 and PW3 as credible witnesses and to reject the evidence of the Appellant.
In particular he submits that there was a failure by the complainant to mention to PW2 that the assailant had stones in his hands. But PW2 only gave evidence of recent complaint in general terms. She was not asked whether PW1 told her about the stones. He also submits that PW1 did not mention the stones to the police. In cross examination the police officer (PW4) said that at the scene of this incident PW1 never showed him the stones or said anything about the stones. But there is no evidence that they were never mentioned to the police by PW1. We just do not know. Next the Appellant submitted that when PW3 said that at the time of sexual intercourse the Appellant was dressed, this means that he therefore could not have had sexual intercourse. But as PW1 and PW3 were naked it is obvious that all PW3 was saying was that he had clothes on. This submission fails.
The Appellant submits that the Magistrate should have mentioned this fact in the record. In my view it was so obvious it was unnecessary for him to do so.
Next the Appellant submits that there is a contradiction in the complainant's account. In evidence she said that on a previous occasion the Appellant came to see a policeman called Baakile but when she first complained of rape to her mother (PW2) she told her the man he had come to see was called Karta. There is no evidence before the court as to whether these are two different men or two different names for the same man. It is significant that on both occasions when she spoke of the policeman's visit to the village she said that he came in order to find a man. I do not consider this piece of evidence to be of any real importance. In my view it takes the Appellant's case nowhere.
We have looked with care at the record. The Magistrate properly directed himself about the ingredients of the offence of rape. Despite submissions to the contrary I am satisfied that he properly applied his mind to the question of credibility of the complainant and was fully entitled to find her to be a credible witness. He directed himself that her evidence needed corroboration. He accepted the credibility of PW3 and correctly found that to be corroboration of the fact of sexual intercourse, the lack of consent by the complainant and the identity of the assailant.
Finally, at various points in his judgment he considered the evidence of the Appellant and rejected it in its entirety. He was fully entitled to do this. Consequently he approached this matter properly and came to a decision which was supported by the evidence. I therefore reject the Appellant's submission in respect of identity. I also reject his submission that the Magistrate failed adequately to analyse the evidence.
The last ground of appeal is that the Magistrate should on the 22nd of June just before the start of the trial have enquired of the Appellant whether the lawyer he had been in touch with was available to undertake his defence. The Appellant submits that as this question was not asked, there was a fatal flaw because there was a duty on the Magistrate to make enquiries about legal representation.
I find it helpful to go through the chronology. I start with 1st April 1999. On that day the Appellant asked the Magistrate if he could be represented. The case was adjourned for that purpose. On 15th April 1999 the question of representation was again considered in court. On the 29th April the Appellant said "I want the date (of trial) to be brought nearer." The case was mentioned on the 25th of May and the 8th of June. So by the 21st of June some 21/2 months had elapsed since legal representation was first mentioned. The Appellant referred the court to Maphari v The State 1991 BLR 304 where the judgment of the full court was given by Amissah P. I have also considered Macha v The State 1982(1) BLR 304. At 311 O'Brien-Quinn C.J. said
"The position, therefore, is that an accused has the right to brief a legal practitioner and that he must be given a reasonable time in which to do so. However, if the accused does not avail himself of his right and opportunity within a reasonable time or if he seeks unnecessary or unreasonable adjournments or if his legal practitioner fails to appear in Court without making a reasonable effort to get in touch with the Court to explain his absence and seek an adjournment a Court is entitled, in interests of the expeditious administration of justice, to try the case in the absence of the accused's Counsel."
I find that the position in this case is that the Appellant was given ample time to obtain legal representation. This resulted in a number of adjournments. As things turned out he did not avail himself of these opportunities for whatever reason. In these circumstances I am satisfied that the Magistrate was not required to raise the matter once again on the 21st June 1999. By then he had done all he properly should have done and it was time to go on with the trial. I particularly note that the Appellant himself had expressed the wish for the trial to take place.
I therefore find no merit in the Appellant's submissions about legal representation. The appeal is dismissed.
DELIVERED IN OPEN COURT AT LOBATSE ON THE 31st DAY OF
JANUARY 2001.
I agree
SIR JOHN BLOFELD JUDGE OF APPEAL
K.R.A. KORSAH JUDGE OFA PPEAL
M. KUMLEBEN JUDGE OF APPEAL
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