Setaelo v The State (Criminal Appeal No 6 of 201) [2001] BWCA 25 (20 July 2001)

The complaints of the Appellant, through his counsel, were threefold. Firstly, that the learned trial magistrate fell into error when he found the complainant to be a credible witness without assigning adequate reasons for so finding. In this regard it was alleged, on behalf of the Appellant, that the finding that the complainant was a credible witness was flawed because there was a conflict between her testimony and that of the witness who corroborated her testimony on essential facts.

The evidence of the complainant before the trial court was that the Appellant and one Reuben Gabriel were friends The complainant was Reuben's girlfriend. She worked at a Chibuku depot where Reuben often visited her in the company of the Appellant. On occasions when Reuben could not go and escort

Reuben lived with his parents. He did not want to offend them by brazenly bringing his girl-friend home to indulge in sexual intercourse. And so Reuben entered into an arrangement with the Appellant whereby the Appellant made available to Reuben the use of his room whenever Reuben wanted to sleep with the complainant. So it was that Reuben sometimes asked the Appellant to fetch the complainant from her work-place and bring her to the Appellant's room to meet Reuben when Reuben could not do so himself.

At around 2:00 a.m. on 23^rd February 1997 when the complainant was about to leave work for the night, the Appellant approached her and informed her that Reuben had asked him to fetch her and bring her home. The complainant found nothing sinister in this arrangement, and allowed the Appellant to accompany her to her own home first where she bathed while the Appellant waited outside the gate. After that she proceeded with the Appellant to his home in the belief that Reuben awaited her there.

Upon their arrival at the Appellant's home, the Appellant called out to Reuben from the door of his hut. He then went back and informed the complainant that Reuben would not wake up and that she should enter the hut and wake him up herself. She entered the dark hut and proceeded towards the bed to join

Reuben when the Appellant suddenly closed and locked the door of the hut. He went to sit on the bed. He then ordered the complainant to undress, and when asked where Reuben was he replied that he was Reuben and that the complainant was to take off all her clothes. The complainant said she refused to do so. The Appellant got into a foul mood and commenced pushing her around while roughly pulling off her clothes. When she tried to scream the Appellant threatened her with serious bodily injury and pulled something from under his bed which the complainant thought he intended to use to injure her. The complainant, numb with fear, desisted fighting back.

She said that the Appellant, having pushed her to the bed, produced a condom from one of his pockets, unzipped the fly of his trousers and put it on his penis. He then produced a second condom a.id told the complainant to put it on his penis. When she refused to comply with the Appellant's request, he pressed her so hard on the bed that she became breathless and so complied with the Appellant's bidding. The Appellant placed her on her back, lay atop her, inserted his penis into her vagina and commenced moving up and down having sexual intercourse with her. While he was so occupied, the complainant told him that she wanted to go to the toilet. The Appellant got off her, she wrapped the Appellant's towel round her lower body and was led by the Appellant to the toilet outside.

The Appellant, who was not represented by counsel at his trial, did not cross-examine the complainant to impugn any part of the complainant's narration of events. In fact he cross-examined her to elicit the suggestion that she was a loose girl who cheated on her boy-friend; that she had been also the Appellant's lover all along, and that she took a bottle of perfume from the Appellant and offered sex in return.

Such cross-examination suggests that the Appellant was alleging that the complainant was his girl-friend, or a loose girl who cheated on her boy-friend and that whatever took place between complainant and himself was consensual intercourse.

To revert to the complaint's testimony, she said when she came out of the toilet she bolted from the Appellant and made a beeline for Reuben's house, which was across the road, with the Appellant in hot pursuit. She said just as the Appellant was about to grab her, he tripped and fell. She rushed into Reuben's home draped only in the Appellant's towel. Members of Reuben's family were sleeping outside and she inquired of them the whereabouts of Reuben. Reuben then emerged from behind the house. As she was telling Reuben what the Appellant had done to her the Appellant arrived at Reuben's home carrying the complainant's clothes which he dumped at the complainant's feet and demanded his towel back. The complainant threw the towel at the Appellant.

The complainant's testimony in this regard received ample corroboration from Reuben who testified that the complainant arrived at his home in the small hours of the morning with only a towel covering her lower body. Soon thereafter the Appellant arrived with the complainant's clothes and threw them at the complainant's feet, whereupon the complainant threw the towel at the Appellant. Reuben said the complainant made a report of rape to him.

True, the Appellant was not represented at his trial but the Appellant's manner of cross-examination of Reuben clearly shows a consistency in clinging to the defence that the complainant was his lover and that intercourse was consensual between them. To that suggestion Reuben made this apt reply:-

"I do not believe that she world have been involved with you regard being had of the fact that she left your home wearing only a towel, crying and very angry with you. You had told me that PW1 had told you that she no longer wanted me but that she wanted you."

After a prompt report to Reuben of the appalling manner the Appellant had treated her, which is in itself consistent with the allegation against the Appellant, Reuben accompanied the complainant home where she made a similar report to her employer before proceeding to the police station to lay a formal complaint against the Appellant.

The police, No 8025 Detective Constable Lethata Ntomane, took up the matter and went to the Appellant's home to find the Appellant, but the Appellant was

not at home. That night the Appellant himself reported at the police station. When he was interviewed by Detective Constable Ntomane the Appellant denied raping the complainant and alleged that the complainant was his girl-friend. The Appellant admitted to the constable that he took the complainant to his home, but denied having sexual intercourse with her. The story he told the constable was that he had intended to have sexual intercourse with her, but was prevented from doing so because of the unavailability of condoms.

The Appellant's defence, an alibi, completely contradicted the story he had been putting to the prosecution witnesses that the complainant was his lover and suggesting to them that whatever happened between him and the complainant was consensual. He denied that at the times material to the charge he accompanied the complainant to his home. He denied that the complainant ran away from his home, clad in his towel, to seek refuge in Reuben's home. He denied meeting Reuben's father on that occasion, but nobody said he met Reuben's father on that occasion. The allegation was that it was the complainant

The Appellant's alibi was that he was with one Mpho at Sunvalley restaurant at 1 a.m. on the morning the offence was alleged to have been committed. He and Mpho were together until they decided to leave and go to De Luxe Bar. They left De Luxe Bar just before sunrise for the Appellant's home, where he and Mpho slept on the same bed until his sister woke him up and sent them to go and collect her goat at the cattle post. On his return from the cattle post he was told Constable Ntomane wanted to see him and so he reported at the police station. In other words he was nowhere near the scene of the crime at the alleged time of the commission of the offence.

This defence of an alibi was not raised by the Appellant when Constable Ntomane charged him with rape of the complainant. He did not raise it before the Court when he pleaded to the charge. There was no intimation of such a defence during cross-examination of the prosecution witnesses. The police had no opportunity of checking up on it. Hoffmann and Zeffertt at p. 179 of their work: The South African Law of Evidence 4* Edition indicate that "a defence such as an alibi may be considerably weakened if it was disclosed too late to give the police an opportunity for checking it." See R v. Mashelele 1944 A.D. 571 at 585. Thus Appellant's alibi, raised more than twelve months after the commencement of the trial, was considerably weakened by its late disclosure.

"In certain circumstances, however, the making of a false statement may throw an unfavourable light upon a fact previously neutral, which can then become an item of corroborative evidence. Assume, for example, that in an action for seduction, where the Court seeks to reduce the risk inherent in the complainant's testimony by looking for corroboration in order to satisfy the need for caution, there is evidence that the girl and the defendant were alone together at a certain time and place. This is not corroboration because the mere fact of a meeting is neutral and does not suggest that anything improper took place. But if the defendant denies that there was such a meeting, and his denial is proved to be false, then the inference may be drawn that there was something about the meeting which he wishes to hide. It is no longer a neutral circumstance but one about which there is an element of suspicion, and it may therefore "corroborate" the plaintiff's story or, at least, reduce the risk of accepting it."

The Appellant had all along been cross-examining the first two prosecution witnesses to establish consensual Intercourse. He had gone so far as to admit to Constable Ntomane, not that he had ravished the complainant, but that no intercourse occurred between him and the complainant because of the lack of condoms. These were clear admissions on his part that he was with the complainant at the material time. It follows that his belated alibi was false. There is thus corroboration of the complainant's story, not only from Reuben's account of what he witnessed, but also from the Appellant's alibi which sought to distance him from the scene of the crime. There was therefore overwhelming evidence in support of the finding that the complainant was a credible witness.

There is no duty on the prosecution to call every person who observed an incident, which is an ingredient in proof of a crime, as a witness. The burden on the prosecution is to prove its case beyond a reasonable doubt. It does not have to call twenty witnesses to prove that the complainant entered Reuben's home in unseemly haste clad only in the Appellant's towel. It is enough if one such witness is called to corroborate the complainant's testimony and their testimonies on the issue are not challenged.

Counsel lastly contended that the failure by the trial magistrate to consider the Appellant's defence was a fatal irregularity. The provisions of Section 291 (1) of the Criminal Procedure and Evidence Act (Cap 08:02) are in peremptory terms. The section stipulates that:

"Every such judgment shall be written by or under the direction of
the presiding officer of the court in the language of the Court, and
shall contain the point or points for determination, the decision
thereon and the reasons for the decision. "

If, indeed, there were no reasons assigned by the learned trial magistrate for rejecting the Appellant's testimony, then this would amount to an irregularity. However, such an irregularity would entitle the Appellant to have the conviction and sentence set aside only if a court, properly directed, on the totality of the evidence before it, could have arrived at any verdict other than that of guilty. This is because Section 13 (3) of the Court of Appeal Act (Cap 04:01) provides that:

"Where the Court of Appeal, in an appeal against conviction, considers that, notwithstanding the fact that it is of the opinion that the point raised in the appeal might be decided in favour of the Appellant, there has been no substantial miscarriage of justice, it may dismiss the appeal."

In the instant case, however, it is invidious to accuse the learned trial magistrate of failing to consider the defence proffered by the Appellant. The Appellant's final defence was an alibi. This is what the learned trial magistrate had to say about that defence.

"Concerning the identity of the accused I have not the slightest hesitation in holding that it was established. This is because the complainant and the accused were well known to each other for the complainant to make a mistake of confusing him with anyone else, especially in view of the fact that he collected her from the bar via her home to his home. This part of the evidence is also confirmed by PW2 who saw the accused arrive shortly after PW1 at his yard carrying the complainant's clothes. The accused's evidence tending to deny his involvement or being with PW1 at his home on the day in question together with his defence witness's testimony must be dismissed as not only improbable but downright false."

From the above passage in the judgment it cannot be said that the learned trial magistrate gave no reasons for dismissing the Appellant's alibi. From the evidence on record no court properly directing itself could have accepted the Appellant's alibi as a defence to this offence.

Botswana: Court of Appeal

Setaelo v The State (Criminal Appeal No 6 of 201) [2001] BWCA 25 (20 July 2001)