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Gare v The State (Criminal Appeal No. 48/2000) [2001] BWCA 5; [2001] 1 B.L.R. 143 (CA) (31 January 2001)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 48/2000 HIGH COURT CRIMINAL COMMITTAL NO. 2/2000
In the matter between:
Appellant
LEFANG GARE
And
Respondent
THE STATE
Mr. H. Assey for the Appellant
Mr. K. H. Rammekwa for the Respondent
JUDGMENT
CORAM: AgudaAg. J.P Lord Weir J .A. Zietsman J.A.
Z1ETSMAN 1.A:
The appellant, whose age is given on the record as 25 years, was found guilty in the Magistrates Court at Mochudi of contravening Section 147 of the Penal Code (as amended), the allegation against him being that he had carnal knowledge of Semakaleng Monametsi; a girl under 16 years of age. / The date of the alleged offence was 15 August 1998. The appellant admitted that he had sexual intercourse with the complainant on the said date and that he was at the time not

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married to her. He stated in his evidence that she was his girl friend, that he had been in love with her for 15 days prior to his arrest, and that she consented to the sexual intercourse. The complainant stated in evidence that she was 15 years old at the time of the alleged offence. This was confirmed by her mother who handed in a copy of her birth certificate which shows that the complainant was born on 5tn January 1983. She was thus 15 years and 7 months old when the alleged offence was committed.
After his conviction the appellant was released from custody, and approximately 10 months after his release he was required to undergo a human immune-system virus test. The result of the test was positive. The Magistrate, believing that a minimum sentence of 15 years imprisonment would have to be imposed, referred the matter to the High Court where the appellant was in fact sentenced to 15 years imprisonment.
The appellant appeals to this court on various grounds. On the question of sentence it was not proved that the appellant was H.I.V. positive on the date of the alleged offence, and if the appeal against the conviction should fail it is clear, in the light of the decision in this court in the case of D11A1E MAKUTO VS THE STATE. APPEAL NO. 31 OF 1999, that both the magistrate and the sentencing judge erred in concluding that a minimum sentence of 15 years would have to be imposed. The minimum sentence in this case is, in terms of Section 147( 1) of the Penal Code (as amended), 10 years imprisonment.

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In arguing the appeal against conviction appellant's Counsel relied upon subsection
147(5) of the Penal Code (as amended). Subsection 147( 1) provides as follows:-
"Any person who unlawfully and carnally knows any person under the age of 16 years is guilty of an offence and on conviction shall be sentenced to a minimum term of 10 years, imprisonment or to a maximum term of life imprisonment".
Subsection 147(5) provides:
"It shall be a sufficient defence to any charge under this section if it appears to the court before whom the charge is brought that the person so charged had reasonable cause to believe and did in fact believe that the person was of or above the age of 16 years or was such charged person's spouse."
It is clear from the evidence given at the trial that the complainant was not the appellant's spouse. What needs to be considered therefore is whether the defence of a reasonable belief that the complainant was of or above the age of 16 years was established by the appellant. The appellant did not allege a belief on his part that the complainant had reached the age of 16 years. The complainant stated in evidence that she told the appellant, before they had sexual intercourse, that she was 15 years old. She was not cross-examined by the appellant on this point. There is no evidence on record regarding the physical appearance or the physical development of the complainant. All we know is that she told the appellant, when they first met, that she already had a boyfriend. The question whether there were any other factors which could have caused the appellant reasonably to believe that the complainant was of or above the age of 16 years was not dealt with by the

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appellant or by the magistrate. On the record as it stands the appellant did not discharge the onus of establishing the defence set out in subsection 147(5). This however is not the end of the matter.
The appellant was not represented at the trial and the inept conduct of his case suggests that he had little understanding of the issues and was almost certainly unaware of the special defence set out in subsection 147(5). In her evidence the complainant alleged at one stage that she did not consent to the sexual intercourse, suggesting that the appellant had raped her, and the inept cross examination of the complainant by the appellant seems to have been directed purely at the question of consent. Her age, or any belief he may have had concerning her age, were not dealt with by the appellant when he cross-examined the complainant.
The question that arises is whether the magistrate should, in the circumstances, have drawn the appellant's attention to the special defence set out in subsection 147(5) of the Penal Code, and whether his failure to do so means that the appellant was not given a fair hearing at his trial.
In the South African case of S. V. ANDREWS 1982(2) S.A. 269 (N.C.). it was held that considerations of fairness require that where a statute raises a presumption which needs to be rebutted by the accused the accused, if undefended, should be informed of the presumption, and a failure to inform him thereof can lead to the quashing of his conviction if he was prejudiced by such failure.

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In the case of S V MOET1 1989(4) S.A. 1053(0) a similar conclusion was reached where the magistrate failed to advise the unrepresented accused of a special statutory defence available to him. In that case the accused had been found guilty of failing to comply with a maintenance order. He stated in evidence that he had other debts and financial obligations to fulfil. The section under which he was found guilty provided that proof of lack of means, which was not due to unwillingness to work or misconduct on the part of the accused, would constitute a valid defence to the charge. The accused was not advised of this provision in the section. It was held, on review that the magistrate had been obliged to explain the existence and meaning of this defence to the unrepresented accused just as it is required of a judicial officer to explain to an unrepresented accused the existence and meaning of a statutory presumption which places an onus on the accused. See also in this connection the case of S V RUDMAN 1989(3) S.A. 568(E) AT 378G - 379A and the case of S. V. HLONGWANE 1982(4) S.A. 32KN) AT 323C.
Counsel were asked at the hearing of this appeal whether they were aware of any cases decided in the Botswana courts dealing with these matters but they were not able to refer us to any such cases.
Section 10 of the Constitution of Botswana provides, inter alia, that a person charged with a criminal offence must be afforded a fair hearing, and must be

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informed, in a language that he understands, and in detail, of the nature of the offence. In the present case the subsection in the Penal Code under which the appellant was charged provides a special defence which can be raised by the accused. It is my opinion that in view of the appellant's obvious ineptness in conducting his defence, and his probable ignorance of this special defence, the existence and the meaning thereof should have been explained to him by the magistrate. The fact that this was not done leads me to the conclusion that it cannot be said that the appellant was given a fair trial.
I would in the circumstances order that the appeal succeeds and that the conviction and sentence are set aside.
N. Zietsman Justice of Appeal
AGUDA Ag. LP.
I regret that I am unable to agree with the judgment of my brother Zietsman, J.A. just delivered with which Lord Weir, J.A, concurs. The facts have been ably set down by my brother, Zietsman, J.A, and I need not repeat them. It is upon his conviction and sentence on those facts that the appellant has filed this appeal against his conviction and sentence.

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The main complaint against the judgment of the magistrate's court is that the appellant has a good defence under the new section 147(5) of the Penal Code. In his heads of argument, the appellant submitted that "based on the behaviour and conduct of the complainant it is reasonably probable that he was under the impression that the complainant was over the age of 16 years." In argument in court the point was raised by my brother Zietsman, J.A, whether the trial magistrate was under any obligation to inform the appellant of the contents of section 147(5) before the commencement of hearing as the appellant was not represented by counsel at the trial. Counsel for the respondent submitted that no such obligation arises in the case of this nature where the charge had been read and explained to the appellant indicating to him that the offence he had committed was that he had sexual intercourse with the girl under the age of 16.
It appears to me that the argument of the appellant in this regard will not avail even the most illiterate person. If the charge is read to him, that his offence was having had sexual intercourse with a girl under 16,even if he was an illiterate who was unrepresented it seems clear to me that he would have made it abundantly clear throughout the proceedings either in his cross-examination of the prosecution witnesses or in his own evidence in defence that he believed that the girl was above 16 years of age. That is to be expected even from an unrepresented illiterate accused person. This never happened in this case and what is of great significance is that in our law it is the court trying any person charged with this offence which has a duty of deciding whether the accused had reasonable cause to believe and did

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believe that the complainant was of or above 16 years of age, not the accused.
This is very clear from the wording of sub-section 5 of section 147 of the Penal
Code and requires no interpretation. That section provides:-
"It shall be a sufficient defence to any charge under this section if it appears to the court before whom the charge is brought that the person so charged had reasonable cause to believe and did in fact believe that the person was of or above the age of 16 years or was such charged person's spouse." (emphasis mine)
In the case of Ontshabetse Lejony vs The State Cr. App. No. 23 of 2000,
judgment dated July 25, 2000 delivered only during the last session of this Court
this provision came for examination by the full bench of this court presided out by
the Judge President himself. The Magistrate's court had found judging from the
evidence and the looks of the complainant, that the accused could neither have had
that belief nor did he in fact believe that the complainant was 16 years or above
judging from the appearance of the complainant. This was in spite of the fact that
the accused had told the court that he believed that the girl was over 16 years of
age. In his judgment in the case the Judge President after quoting above sub-section
said: -
"In the end result, it was to the court which tried the charge that the statute conferred the duty of finding whether the person charged had reasonable cause to believe and did in fact believe that the victim was of or above 16 years. The fact that the couple had been living together over a period of time or that the victim consented to the act charged, was really irrelevant. The law was enacted to protect girls below the age of 16 years, whether they consented to sexual intercourse or not. The Magistrate's Court found, judging from the evidence and the looks of the victim, that Lejony could neither have had that belief, nor did he in fact believe that the victim was 16 years or above. I have no reason to disagree with that

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finding. Accordingly, the appeal against conviction on this ground is dismissed."
That judgment was concurred in by the other four judges of this court including
myself. There is nothing in the argument before this court, nor regretfully
contained in the judgment of my brother Zietsman, J.A, to convince me to change
my opinion. On the other hand I am in even stronger mind that the full Bench of
this Court was right in the Leiony case. This court is not bound to agree with any
judgment of any foreign country, no matter how eminent the Judges of that foreign
court may be. I do not believe that justice must be considered only as regards the
accused, and not the victim. The duty of a Court of Justice is to strike a balance
between the duty in the interest of the society the court is meant to serve. I am
not saying that any harm will result in the trial court telling him that the law
provides him with a defence as contained in sub-section (5). In some cases it may
even be the right thing for a trial court to do. But in a case of this nature the
failure of the magistrate could never have, in my opinion, have resulted in a
substantial miscarriage of justice.
From the totality of the evidence led in this case and the law as I have analysed it, nothing has been shown to me to vitiate the conviction recorded against the appellant in the magistrate's court, and I would therefore dismiss the appeal.
In so far as the sentence passed is concerned, this court has already held in a number of cases in our last session that in so far as the prosecution cannot establish

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the fact that the appellant was HIV positive at the time of the offence, the provision of the new sub-section (3) of section 147 cannot be applied. It is that provision which deals with the enhancement of sentences to be imposed in respect of those accused who are found to be HIV positive. It follows therefore that the sentence imposed in this case must be set aside and a new one of ten years imposed.
T. A. AGUDA
         Acting judge President
LORD WEIR, LA.
For the reasons given in the judgment of Zietsman, ].A, I agree that this appeal should be allowed and the conviction and sentence set aside. I wish to add some observations of my own.
In any trial where the accused person defends himself either because he chooses to do so or because he cannot afford a legal representative an onerous responsibility lies on the judge to ensure that he receives a fair trial. There will be cases where the accused may be able to conduct his case with skill and there will be cases in

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which the issues at the trial will be obvious to the meanest intelligence. In such cases it will probably be unnecessary for the judge to intervene. On the other hand there will be cases where the issues are not straightforward. In such a situation the judge will have to be vigilant to ensure that the defence case does not go by default because of lack of skill or comprehension on the part of the accused. No hard and fast rules can be laid down as to when or to what extent a court should intervene on behalf of accused persons. Each case depends upon its own circumstances.
In the present case, the appellant faced a serious charge, that of unlawful carnal knowledge of a female under the age of 16 years. The Penal Code provided him with the defence that if it appeared to the court that he had reasonable cause to believe and did in fact believe that the complainant was 16 years or over he would be acquitted. At the start of the trial the charge was read over to the appellant and he said that he understood it. The special defence was not. I do not go so far as to say that there was any requirement to read out the terms of the statutory defence at the start of the proceedings although my own inclination, particularly in the case of an unrepresented and illiterate accused, would have been to do so. Moreover if, as the trial progressed it became clear to the court from questions put in cross-examination that this accused clearly understood the issue and the nature of any defence open to him, there would have been no need for the court to intervene with assistance. But in this case, studying the record of proceedings, it appears to me that the appellant had no idea what was the true issue. Indeed from such questions as he asked, it seems that he was under the impression that he was facing

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a charge of rape and that what he was seeking to establish was a defence of consent. Be that as it may, at no stage as the trial proceeded did it become apparent that the appellant had any idea that the statutory defence existed or was open to him. This should have become obvious to the magistrate after the appellant's very brief cross-examination of the first witness, who was the complainant. The complainant stated that the appellant had asked her her age and she told him that she was 15 years old. There was no cross-examination of this vital piece of evidence and, in my view, the magistrate ought to have intervened there and then to draw the appellant's attention to the special defence and ask him if he wished to ask the complainant any questions on the matter. Moreover when the appellant came to give evidence himself, he said nothing that could have had any bearing on the special defence and by refraining from intervening, the magistrate let the opportunity pass for this possible defence to be put forward.
I do not wish to appear unduly critical of the magistrate, as any judge of experience
will be aware of the difficult and sometimes delicate task of overseeing a trial where
an accused person is unrepresented. However, the issue of the appellant's belief as
to the complainant's age, had it surfaced, might well have been critical to the
decision of the court. The magistrate stated -
"I also believe I am right in saying that there is totally no iota of evidence to suggest that accused had reasonable cause to believe and did in fact believe that the complainant was of or above the age of 16 years. Thus said, the above mentioned limited statutory defence does not avail to accused."

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The unfortunate fact is no steps were taken to ensure that the appellant was aware that this defence was open to him if he chose to avail himself of it. The result, in my judgment, was he did not have a fair trial.
LORD WEIR Justice of Appeal
ORDER: Appeal allowed. Conviction and sentence set aside. Appellant is discharged and acquitted.
Delivered in open court at Lobatse this 31st day of January 2001
T. A. AGUDA Acting Judge President

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