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Mabote v The State (Criminal Appeal No. 35 of 2000) [2001] BWCA 7; [2001] 1 B.L.R. 187 (CA) (31 January 2001)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE

Criminal Appeal No. 35 of 2000

High Court Criminal Appeal No. F155 of 1998

In the matter between:

BATSHABI MABOTE Appellant

vs

THE STATE Respondent

Mr. W.B. Nfila for the Appellant Mr. C. Tlagae for the Respondent

JUDGMENT

CORAM: P.H. TEBBUTT J.A. N. ZIETSMAN J.A. J. BLOFELDJ.A.

BLOFELD J.A.

This is a renewed application for leave to appeal against conviction.

On 23^rd April 1997 the Appellant was charged with rape contrary to sections 141 and 142 of the Penal Code. On the 29^th October 1998 after a contested trial this Applicant was convicted of rape in the Subordinate Court of the First Class for the North West District held at Maun before M.E.K. Baakile Magistrate I and sentenced to ten (10) years imprisonment.

On 4^th November 1998 the Applicant applied for leave to appeal both conviction and sentence. Further grounds of appeal were added in December

1998. On 16' February 1999, the High court dismissed the applications and on the 27^th July 2000 refused leave to appeal to this court. Subsequently there was a fresh application to appeal conviction only. This is the matter now before this court. At the outset we indicated that we would be prepared to treat this matter as a substantive appeal and hear it forthwith provided that both Appellant and the State agreed. This they did.

THE FACTS

The facts disclose that this Appellant knew the complainant G.M. (PW1). She was employed at a restaurant at Maun. He lived in Maun and was a customer from time to time at that restaurant. On the day in question, he arrived there as the restaurant was closing for the evening at about 2100 hrs. PW1 asked him to give her and her friend a lift. He declined and told her he had no fuel. They started off on foot. He caught them up in his vehicle and offered them a lift which they accepted. PW1 wished to be dropped off on the way to Boseja but the Appellant ignored that request and went straight to Boseja saying that he would drop PW1 off after he had dropped her friend. He then dropped her friend off. Then, instead of returning to where PW1 was to be dropped off, he drove off in the opposite direction eventually going through a village into the bush for some distance. There he stopped, got out and went round to where PW1 was sitting in the car. He asked her if she wanted to live or die. He appeared to her to be furious. Then he grabbed her, removed her dress against her will, pushed her down on the car seat, pulled her legs apart despite the fact that she was struggling to prevent him and then had sexual intercourse with her. He did not strike any

blows at her at any time. She made it clear that she did not wish him to have sexual intercourse with her. Afterwards he offered her P300.00 if she did no report the matter. She had started to cry and he asked her not to. He told her not to tell anyone. He then got back in the driving seat of the car and drove her back to Maun and dropped her off at Marcus Filling Station.

She walked home still crying. At home she sat down and continued to cry. At sometime after midnight her sister returned to the house and saw PW1 crying. She described her state as being "very serious." The next morning PW1 reported this matter to the police.

The Appellant was arrested. He told the police that PW1 was his girlfriend but said nothing further.

At trial he gave evidence. He said that he had gone to the restaurant that evening to pick up PW1 at her invitation. He said they were already lovers. He said that after dropping off her friend they went by mutual agreement to the show ground in Maun in order to have sexual intercourse because they might be seen by his girlfriend if they went to his house or her boyfriend might know about it if they went to her house. He said that she was fully willing at all times for him to have sexual intercourse with her. She did not struggle at all or cry out or scream. He said he never promised her any money. He described how he drove her back to the filling station and dropped her off there as she was afraid her boyfriend would find out if he dropped her at her home.

The only disputed issue at trial and before this court is the question of consent. The Magistrate properly directed himself on the ingredients of the offence of rape and on the proper approach he should adopt towards the question of assessing credibility both of the complainant and the other witnesses. He found both PW1 and her sister (PW2) to be credible witnesses. He disbelieved the evidence of the Appellant.

The first submission of the Appellant is that the Magistrate in his record wrongly made a finding that:

"The fact that she (PW1) told her sister immediately after the incident (is) corroboration of her claims".

Before any matter of evidence can be capable of corroborating the complainant's evidence in a material particular it has to come from a source independent of the complainant. As evidence of recent complaint comes from the complainant it cannot be independent. But it is admissible to show consistency by the complainant and goes to the general question of her credibility even though it is not capable of amounting to corroboration. Thus the Magistrate was in error in this part of the record. But this by itself was not a fatal flaw in this case because, as will be made clear later in this judgment there was other evidence that did corroborate PW1 on the issue of consent.

The Appellant made a number of other submissions to the court. I deal with them in an order which is different from the way he presented them.

He made submissions about the failure of the defence Advocate at trial properly to cross examine complainant. It was a startling feature of this case that in cross-examination the complainant was never given the opportunity to deal with important portions of the Appellant's case. They only came to light when he gave evidence. We list a number of such matters about which the complainant was never asked. She was never asked if she and the Appellant were lovers, nor whether she was fearful that her boyfriend would discover that she had had sexual intercourse with the Appellant. She had said that the Appellant offered her money after sexual intercourse was completed. It was never put to her that this was untrue, which was the Appellant's case. At the Appellant's request the court visited the place where the complainant said sexual intercourse took place and after that she was further cross-examined. It was never put to her that she had brought the court to the wrong place and that the intercourse had not taken place in the bush but at the show grounds. When the Appellant gave evidence he said the actual place was some 11 km away from where the court visited. All these matters were of considerable importance and should have been put to her.

The Appellant's submission was that these failures to put the case to the complainant were not matters that the court should take into account when assessing credibility of witnesses because the error was the Advocate's and not the Appellant's.

An Advocate in a contested criminal case has a duty to put his client's case to the proper prosecution witnesses. If he fails to do so and never thereafter offers the court any explanation for this failure he has not fulfilled his duty to his client and the court. Of course, I accept that sometimes by inadvertence or mistake an Advocate can leave out some matter that he should have put to a witness or puts a matter to a witness that he should not have put. But this was not that case. Here substantial portions of the Appellant's story which he gave in the witness box were never put and his Advocate never offered any explanation to the court for his failure to do so. In these circumstances, this is a matter that the court is entitled to take into account in assessing credibility. It is only one of the factors and its importance must not be stressed too highly. However this failure to cross-examine the complainant properly does not in my view require this court to allow this appeal either as a separate ground of appeal or in conjunction with any other ground.

The Appellant as part of his submissions drew the court's attention to the complainant's evidence that she alleged that she had been offered P300.00 by the Appellant if she did not report this matter to the police. The Appellant submitted that this materially detracts from her credibility. I note that the question of money was brought up by the Appellant and not by her. According to her evidence it was not brought up until sexual activity was finished. This is a very different situation from a witness being prepared to accept money in order to give false evidence. It can be said that the very fact that she gave this evidence itself assists her credibility. A lying witness would never have mentioned it.

This matter is only one of many matters that arose in evidence and that in all the circumstances it is not a matter of such weight that it materially assists either the Appellant or the State.

I turn to the Appellant's remaining submissions which concern corroboration of the complainant's evidence that she had not consented to the sexual intercourse with the Appellant.

Counsel submitted that the complainant's account of this incident indicates a considerable amount of force being used by the Appellant upon her. He submitted that as a result one would expect the medical evidence to disclose marks of violence upon her. None were found by the doctor who examined her. He submits that the medical evidence was more favourable to the defence than to the State. He further submits that the medical evidence was not capable of amounting to corroboration. I agree with both these propositions. But it must be remembered that the complainant's case was that she had been threatened with life or death before the Appellant commenced his attack upon her. In my view, the medical evidence was not conclusive and no point of law arises upon the way in which it was dealt with by the Magistrate which assists this Appellant.

The final submission of the Appellant was that the evidence of distress suffered by the complainant given by PW2 was not capable of being corroboration of lack of consent by the complainant.

Evidence of distress is capable of being corroboration in all cases of sexual misconduct, but courts should be wary before deciding that such evidence is corroboration. Each case inevitably turns on its own facts. Distress can be simulated. It can also be present for other reasons besides sexual misconduct. Before a court decides to accept distress as being corroboration, it must be sure that it is genuine and not simulated. It must also be sure that there is no other real reason for such distress except the sexual misconduct. Only then can the court be sure that distress is corroboration.

In this case, PW2's evidence was that the complainant's distress was very serious. It is also relevant that PW2 saw PW1 some considerable time after the incident was over and the distress was still continuing. The Appellant never gave any explanation either in interview or in his evidence that can account for such distress by the complainant, such as a lover's quarrel or a refusal by him to continue their relationship. Even if he had given some such evidence it would still be for the court to consider whether it accepted that evidence or whether it rejected it, if the court was sure that was untrue.

Consequently, I am satisfied that on the facts of this case the clear distress of this complainant was not only capable of being corroboration but was corroboration.

The Magistrate never made a precise finding about this matter but he did so by inference. He made a finding that he accepted the credibility of both PW1

and PW2. Having done that it was clear that he accepted not only that she was distressed but that PW2 witnessed that distress. Consequently I am satisfied that there was corroboration that was found by the Magistrate and I would therefore dismiss this appeal.

DELIVERED IN OPEN COURT AT LOBATSE ON THE 31st DAY OF January 2001.