Bolowe v The State (Criminal Appeal No. 32/2000) [2001] BWCA 3; [2001] 1 B.L.R. 170 (CA) (21 January 2001)

In the High Court the Appellant faced charges of assault (2 counts); attempted murder (5 counts); unlawful wounding in contravention of Section 233(a) of the Penal Code (2 counts); and malicious damage to property (2 counts). They arose from the torching of two huts that were some 35 metres apart. One hut ("hut No.1") belonged to Grace Thipe (PW2). She occupied it with four young children. It was partially damaged by the fire. The other hut ("hut No.2") was used by Monica Thipe (PW1), the daughter of PW2. It was unoccupied at the time and was totally destroyed. Hence the charges. The Appellant was convicted on all counts save that on the two counts of unlawful

wounding he was convicted of assault. That these offences were committed has never been challenged. The question in issue before us, as in the trial court, is whether the Appellant was the perpetrator. This he denied. The trial court (Mwaikasu J) found this proved. The Appellant was sentenced to serve an effective period of imprisonment of 7 years. There is, not surprisingly if I may say so, no appeal against sentence.

PW2 gives this account of what took place that night. She was asleep in her hut (hut No.1) when she was awakened by light shining into her hut. She was frightened and drew a curtain to detect its source. She saw hut No.2 aflame and saw the Appellant. He was at this hut closing a plastic container. She called out to him, addressing him by his first name: "Mr. Mbaakanyi why are you killing me in such a horrible manner?". The Appellant's response was to come to her hut and pour petrol on its front door intent on torching it which he did. PW2 immediately set about assisting the children to escape from the burning hut and dowsing the fire. Under cross-examination she repeated and amplified this evidence :

"When I noticed the accused outside he was bending down screwing the plastic container he was facing down. He then stood up as I called him out. While the accused was bending down I was able to recognise him because there was light. He was by then at a distance of about 35 metres. I was frightened. The accused was seen bending while close to the burning hut. I did not observe him for so long as I was busy concentrating to save my children. It is true that as I screamed and shouted calling accused's name; as he was closing the plastic container, he was by then about to leave, but then he came towards me. The accused was wearing a khaki dust coat and jeans trousers, but I cannot remember the colour."

There was a love relationship between the Appellant and PW1 and they lived together. This did not last. At a certain stage the Appellant assaulted her. She laid a charge but was persuaded by him to withdraw it. He plainly felt jilted and aggrieved that their relationship had come to an end and continued to threaten her with violence. Thus it can be said that the Appellant had a motive for setting fire to her home, whether or not he expected her to be asleep there. There is, however, a countervailing consideration. It is the danger that his past misconduct, known to PW2, may have materially, or decisively, contributed to her conclusion that he was the offender. To my mind his past conduct should be regarded as a neutral factor and left out of reckoning.

The Appellant gave evidence and, as I have said, denied that he was at the scene. On that night he said that he slept at home alone. In argument some reliance was placed on the fact that the Appellant lived some 55 km from the huts and that he was found at home early the next morning. The court was correct in deciding that this distance was no obstacle to the Appellant committing the offence. However, the judgment proceeds to deal with the defence case thus:

P.W.2, I take the accused's denial to have been the one who committed the acts complained of and that the P.W.2 must have a mistaken identification of the culprit as himself was then asleep in his house at Area 'S', Francistown, to be a sheer frame-up in an endeavour to exculpate himself from liability for he offences charged. Though there is no prosecution evidence as to how the accused travelled to the place of the incident, said to be about 60 km away, I do not consider that to be a negativing in any way the possibility of the accused having easily travelled there. For as he was a driver himself, he could have hired any other person's motor vehicle to take him there.

It would seem that the defence case was rejected - in somewhat extravagant terms - at least partly with reliance upon the strength of the prosecution case. This was the wrong approach. As was pointed out in State v Singh 1975(1) S.A. 227 (N) 228:

"Because this is not the first time that one has been faced on appeal with this kind of situation, it would perhaps be wise to repeat once again how a court ought to approach a criminal case on fact where there is a conflict of fact between the evidence of the State witnesses and that of an accused. It is quite impermissible to approach such a case thus: because the court is satisfied as to the reliability and the credibility of the State witnesses that, therefore, the defence witnesses, including the accused must be rejected. The proper approach in a case such as this is for the court to apply its mind not only to the merits and demerits of the State and defence witnesses but also to the probabilities of the case. It is only after applying its mind that a court would be justified in reaching a conclusion as to whether the guilt of an accused has been established beyond reasonable doubt. The best indication that a court has applied its mind in he proper manner in the above-mentioned example is to be found in its reasons for judgment including its reasons for the acceptance and the rejection of the respective witnesses."

This dictum was approved and adopted by this court in Joseph Molefi v The State (Criminal Appeal 14/99). This court, is however, authorised to confirm a conviction, despite an irregularity, "provided there has been no substantial miscarriage of justice." (Section 13[3] of the Court of Appeal Act [Cap : 04.1]). I shall assume in favour of the Appellant that an irregularity did occur.

Thus it is that the critical enquiry turns on the evidence of a single eyewitness, more pertinently whether the opportunity for accurate observation existed in as much as PW2 was a satisfactory witness and her credibility was never in doubt.

She had far more than a fleeting opportunity to identify him. Initially she saw him bending over the plastic container at hut No.2, that is to say at a distance of no more than 35 metres. When she called out to him he reacted by coming towards her right up to her hut. This afforded her further opportunity to observe him and confirm that her identification was accurate. As to the visibility at the time, the area was lit up by the burning thatched-roofed hut. The amount of light was such that there was sufficient illumination inside her room to awaken and startle her. It follows that the light at the burning hut where the Appellant was first seen must have been far more intense. To a somewhat lesser degree that would be the case in the area traversed by the

Appellant as he came towards her hut. In this regard it is of some importance that, as he was crouching where she first saw him, she was able to make the detailed observation that he was "closing a plastic container." I should just mention that, after PW2 had managed to extricate all the children from her burning hut, she again saw the Appellant still at the scene flashing a torch. There is, however, no evidence that on this occasion the lighting was such that it afforded a further opportunity for accurate observation.

The caution to be exercised in deciding whether the identity of an accused has been satisfactorily proved has been stressed in numerous decisions of this court and others. It is thus expressed in State v Mthetwa 1972(3) S.A. 766 (A) 768 A-C:

"Because of the fallibility of human observation, evidence of identification is approached by the Courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested. This depends on various factors, such as lighting, visibility, and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused's face, voice, build, gait, and dress; the result of identification parades, if any; and, of course, the evidence by or on behalf of the accused. The list is not exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in the light of the totality of the evidence, and the probabilities; see cases such as R. v. Masemang, 1950 (2) S.A. 488 (A.D.); R. v Dladla and Others, 1962 (1) S.A. 307 (A.D.) at p. 301C: S. v. Mehlape, 1963 (2) S.A. 29 (A.D.)."

Lastly, there is further consideration that lends support to this conclusion. Had someone else been the miscreant, on learning when PW2 shouted at him, that he was being addressed by some other name, the probabilities are that he would have been grateful for the faulty identification and would have made off. But contrawise, the correct identification might well have prompted the Appellant to take the steps that he did.

In the result I am satisfied that despite the irregularity (supra), assuming it to be one, there was no miscarriage of justice and that on the totality of the evidence the appeal ought to be dismissed and the conviction confirmed. It is ordered accordingly.

Botswana: Court of Appeal

Bolowe v The State (Criminal Appeal No. 32/2000) [2001] BWCA 3; [2001] 1 B.L.R. 170 (CA) (21 January 2001)