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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO 42 OF 2000 HIGH COURT CRIMINAL COMMITTAL NO (F) 15 OF 2000
In the matter between:
MAITHAMAKO MOGATLA
vs
THE STATE
Mr. P. A. Kgalemang for the Appellant Mr. K. P. Leinaeng for the Respondent
JUDGMENT
CORAM: KORSAH J.A. A.ZIETSMAN J. A. BLOFELD J. A.
KORSAH J. A.
The appellant was on 23 March 2000 found guilty and convicted of the following offences alleged against him.
Rape, contrary to section 141 as read with section 142(1) of the Penal Code {Cap 08:01} Laws of Botswana, as amended by Act No 5 of 1998.
Grievous Harm contrary to section 230(1) of the Penal Code {Cap 08:01}, as amended by Act No 13 of 1993, Laws of Botswana.
(c) Grievous Harm contrary to section 230(1) of the Penal Code {Cap 08:01}, as amended by Act No 13 of 1993, Laws of Botswana.
As section 3(5) of the Penal Code Amendment Act No 5 of 1998, precludes the ordering of any sentence on a charge of rape to run concurrently with a sentence for any other offence, and the mandatory minimum sentence for the offence of Grievous Harm being 7 years, in the absence of circumstances of extenuation, the learned trial magistrate observed that the cumulative effect of the three sentences would be beyond his sentencing powers, and had the matter transferred to the High Court for the imposition of sentence in terms of section 295(1) of the Criminal Procedure and Evidence Act {Cap 08:02}.
On 25 August 2000 Letsididi Ag. Judge sentenced the
Appellant as follows: -(i) Count 1 (Rape) years'
imprisonment,
(ii) Count 2 (Grievous Harm) 7 years'
,
(iii) Count 3 (Grievous Harm) 7 years7 imprisonment. He ordered that the sentences were to run consecutively as from 23 March 2000.
The evidence in support of the charges levelled against the appellant was adduced mainly by K. M. (PW1), the complainant in respect of counts 1 and 2. She was 60 years of age. According to her, on the morning of 1 January 1999, she her husband M. M. (PW2) proceeded to their ploughing fields at . While they were cutting trees, she was alerted by her husband to the of a stranger in their fields. It appeared to her that the person had entered their field via the back entrance and was proceeding to their hut. She the person and informed him that there was no way out through there. The then changed course. She did not then recognise the person as accused.
She and her husband repaired to their hut and sat down. The person they saw appeared to be going out of their fields, but then he went back towards their hut. That was when K. M. recognised him as Maithamako (the Appellant). She said the Appellant had a knobkerrie with him. She had known the Appellant since 1972, when his mother was suckling him, up to the present day and that his name at childhood was Semboya.
K. M. asked the appellant what he was looking for and he replied that he was looking for donkeys. She asked him whether he had checked on some donkeys that were grazing nearby, but the appellant said he was looking for the phatshwa and thokwana ones and not those nearby. She asked the appellant whether he ploughed at Polokabatho and he said he did. The appellant offered the information that he ploughed together with one Motlaletshipi. K. M. then asked the appellant if he and Motlaletshipi could plough the fields of her husband and herself to which the appellant replied that she should ask the owner of the drought animals. She asked appellant to ask the owner on her behalf. On that note the appellant left them their hut. This witness only mentioned that this took place in the morning in the of M. M.. After the departure of the appellant K. M. some plastic sheets in the shade and sat down. While still in a sitting position observed that the appellant was still in their fields, and M. M. quipped that may be he wanted to steal the goats.
K. M. then lay down on the plastic sheets. Before she fell asleep M. was repairing his axe handle and sharpening the cutting edge; for they were to resume work in the afternoon. She was awakened from her slumber by some sound. When she woke up, she realized that the appellant had felled M. with the Knobkerry. As K. M. was about to ask the appellant what was happening, the appellant hit her on the arms and fractured them. She asked the appellant: "Semboya why are you hurting us?" She fell down and the appellant sat on her. She was bleeding profusely and was getting weaker, but she felt the appellant having sexual intercourse with her before she eventually became unconscious. She said she wore no underwear and so the appellant just raised the skirt she was wearing and ravished her.
Upon regaining consciousness, K. M. discovered that her bones were protruding from the flesh where the appellant had hit her. Her husband, M. M. was still prostrate, face down, and bleeding from his ears. When she called him, he did not respond. She then ran to Kenanao's place to go and report had happened. She told Kenanao's family that she had been assaulted by , nephew of Ditsiane Diaramoka. She told them that the old man had also injured by the appellant. K. M. was first taken to Maun Hospital and later transferred to Nyangabjwe.
Under cross-examination by the appellant at page 44 of the record the complainant said the appellant at the time of the perpetration of these offences was wearing a top, bluish-green in colour, and khakhi shorts. This statement was never denied by the appellant.
M. M.'s age was estimated to be between 75 and 80 years at the time of the attack on him. His evidence was substantially the same as his wife's, save that he did not know the appellant prior to the attack on him and he also confessed his inability to identify the appellant by personal features, speech or clothing. M. M. in any case did not have the opportunity to see his assailant. He was confused as to the time of the attack. He first said it was at 1 p.m., and then during the day, and at about 1400 hours. This witness suffered brain damage as a result of the attack and his recollection of time is suspect.
At the homestead where K. M. reported their misfortune was one Kelemetse Ikageng (PW3). She saw K. M. coming towards their homestead, with her broken limbs flailing, round about 3 p.m. She informed them of what had happened, and that she knew her assailant. They immediately arranged for transport to take her to Maun General Hospital. This witness took the police to the complainants' fields and M. was also conveyed to Hospital. No one knows for long K. M. had been unconscious.
Inspector Selato of Botswana Police Service (PW5) received a call from the Hospital regarding the first complainant, and went to the Hospital in the company of other police details to interview the complainant, (PW1). K. M. told them that their assailant was Semboya and that Semboya was the nephew of one Ditsiane from Matlapaneng. Ditsiane is another name for Goitseone Letsiane (Pw4). Inspector Selato and three police details then proceeded to Matlapaneng in search of Semboya. At a street vendor's stall, Inspector Selato and his team were directed to Ditsiane's place by a child. At Ditsiane's yard Inspector Selato met a young lady Goitseone Ditsiane also called Letsiane (PW4), who told him that she knew Semboya, but said his proper names are Maithamako Mogatla and that he stayed with his girl-friend at Riverside.
Inspector Selato already knew a person by that name and so was able to identify the appellant and point him out to his colleagues when they got to the designated house at Riverside. On arrival at the appellant's abode Inspector Selato talked to him and invited him to accompany them to the Police Station. Before they got out of the yard the appellant ran away and the police details gave chase. The appellant jumped fences into the yards of the neighbours. Constable Matlaletshipi went to the left and the other constable went to the right in a pincer movement and Selato remained at the gate. The other officer was chasing the appellant. The appellant jumped into a yard where there were dogs and threw a brick at the which the Inspector evaded by ducking. He then jumped into another where the police details finally caught him. Now is this the response expected an innocent person being requested to help police in their investigations?
The appellant was taken to the Police Station and was informed the following day about the allegations made against him by K. M.. The appellant denied having visited Polokabatho. He denied any knowledge of K. M.. The reports from the doctors who attended to the victims of the assault were received by the police and tendered in evidence by this witness.
Goitseone Ditsiane also called Letsiane (PW4) testified to the effect that the appellant was her uncle; that the appellant was also known as Semboya. She said she furnished the police with information regarding the proper names and the abode of the appellant. She did not know what the police wanted of the appellant nor was she alleged to have had any grudge against the appellant. Yet the appellant in cross-examination of this witness attempted to deny, without success, that he was also known as Semboya. Why would the appellant deny his childhood appellation at this stage?
That K. M. was raped is supported by the unchallenged medical evidence and all the circumstances attendant to the ravishing of the complainant. In respect of count 2, it was not denied that on 1 January 1999 K. M. sustained serious injuries and fractures of the radius/ulna bones of both right and left arms as a of the attack on her at Polokabatho lands.
Similarly, with regard to count 3, it was not denied that on 1 January 1999, M. M. suffered grievous harm by being hit with a hard object thereby causing multiple fractures of the skull and brain injury.
The medical reports tendered in evidence are supportive of the doctor's evidence on the injuries sustained by the complainants. As was the fact that they were hospitalised for about 3 to 4 months.
The appellant's defence to these charges was a complete denial. He said at about 1830 hours on 1 January 1999, while having his meal, the police arrived and attacked him without any introduction. He alleged that when they arrived, one of the details was carrying a stone; that they threw a stone at him and, without informing him of the purpose of their visit, tried to grab him. He said he jumped from his chair and stood some distance away. Then one of the police details tried to hit him with a stone and so he jumped into the adjoining yard and asked whether they had come to arrest him or assault him.
The accused denied that a chase ensued before his arrest by the police. He said the police did not respond to his question. He said the police simply took him to the station where they asked him why he had assaulted the complainants. He the police where he had assaulted the complainants and denied any knowledge of the complainants. When asked whether he knew how Inspector managed to get to his house, he replied that it was because Selato and have a grudge against him.
The appellant called two witnesses. The first of his witnesses, Botsile Masike, admitted to having been in attendance in court for the past week before being called to testify. His testimony must, therefore, be considered with caution. All that he said was that the appellant was his aunt's son and that the appellant's only names that he knew of were Maithamako Mogatla. His evidence was limited to his own knowledge and is not proof that the appellant was not known by some other appellation. It does not destroy the assertions by K. M. and Goitseone Letsiane that he was also known as Semboya.
The second of the appellant's witnesses was Sethembile Leboko. She was the mother of the appellant's children and with whom the appellant resided. She said on 1 January 1999, she did not have a watch, but she left the appellant at home at 9:30 am to gather vegetables from the veld and returned home at 12:30 p.m. to find the appellant at home. She said she was able to testify to the time because her companion had a watch.
It was submitted, on behalf of the appellant, that from the testimony of M. M., whom I have already indicated did not see his assailant, and was rendered unconscious for several days and sustained brain damage as a result of the , that the attack was during the day, first at 1 p.m. and then at 2 p.m.; the of Keleemetse Ikageng (PW3) that she saw K. M. running towards homestead to make a report at about 3 p.m.; the trial Magistrate's contribution (which must be disregarded, because it was not evidence the court) in the judgment at page 10 of the record, that:
"The question of the distance of the ploughing fields from town was
never put across in evidence. However, the area in question are (sic)
well known to me. It could be less than 10 kilometres from the town
centre.";
the appellant could not have committed any of the offences charged because, to Sethembile Leboko (DW2) he was at home with her by 12:30 p.m. could not have committed the offences at 1 p.m.
Now, according to the Law of Evidence, the onus of proving that an alibi is false rests on the prosecution. It therefore, accords with common sense that, where an accused person relies on an alibi as a defence, notice of it should be given to the prosecution before the commencement of the case in order to afford the State the opportunity to verify the truth or falsity of the alibi. It is normal for a person against whom a charge is levelled to inform his accusers at the earliest possible moment that evidence tending to show that by reason of his presence at a particularplace or in a particular area at a particular time he was not, or was unlikely to have at the place where the offence was alleged to have been committed, at the of its alleged commission.
Except for section 145 of the Criminal Procedure and Evidence Act {Cap 08:02} there is no provision regulating the raising of an alibi in this jurisdiction. But the onus cast on the prosecution to prove the falsity of an alibi makes it imperative that some notice of an alibi must be given before or at the commencement of the trial, and not just sprung upon the prosecution at the close of the prosecution's case, as in the instant case. The appellant must have known, at the latest when the charge was put to him, if it be true, that he was at home all day and that his girl-friend could testify to that effect. Obviously, he did not inform the police of this, otherwise they may have discontinued with the prosecution after a verification of his alleged alibi. The appellant did not put it to Inspector Selato that he informed the inspector during interrogation that on the day of the commission of the offence he was at home all day until his arrest. In his cross-examination of the prosecution witnesses he was more concerned with whether they could identify him or attest to the apparel he was wearing that day. When both his person and apparel were attested to by K. M. (PW1), he did not challenge her evidence by putting forward his alibi. When the appellant himself testified, he made no mention of where he was at the relevant time. He left the issue of his alibi to his very last witness - the woman who had bore his children and had every reason to protect him from being convicted.
It is of crucial importance to remember that all the witnesses who gave evidence as time had no watches and as such their testimonies as time were, at best, , rather than from practical or positive knowledge. The only witness the Magistrate saw and believed implicitly, and for good reason, was K. M. (PW1). It is, therefore, against her testimony that this alibi must be tested. She testified that it was on the morning of 1 January 1999 that she saw and spoke to appellant in her fields. The appellant did not cross-examine her as to the time of so as to lay a foundation for his alibi. By the nature of the appellant's alibi, it of importance to establish from this witness the exact time of day when she was by her assailant so as to lay a foundation for his alibi. In her evidence she she saw the appellant in the morning. Even if Sethembile Leboko's testimony is without qualification, from 0930 to 1230 hours there is no evidence of the appellant was, save for the testimony of K. M.. In the result, I am the view that the trial magistrate rightly accepted the testimony of K. M. the appellant was at her fields on the morning of 1 January 1999, and perpetrated all the offences charged.
I make one observation before I proceed to the other issues raised on appeal. That is, in England and Zimbabwe there are statutory provisions dealing with the defence of alibi. They are to the effect that where an alibi is the defence or one of the defences relied upon, the accused must furnish, to the prosecutor within a specified time, or within a reasonable time, or in Court before the commencement of proceedings, particulars of any alibi the accused person wishes to raise as a defence the complainant to whom the charge related had already been cross-examined by appellant.
The procedure which was adopted by the State was unusual and irregular and the question is whether the conviction on Count 3 should therefore be set aside. What has to be determined is whether the irregularity might have resulted in a miscarriage of justice. If not, this court may, despite the irregularity, dismiss the appeal (see section 13(3) of the Court of Appeal Act (Cap 04:01).
The appellant had no objection to the substitution of the more serious charge and he was given the opportunity to have the witnesses who had already testified recalled for further cross-examination. He declined the offer. His defence was a denial that he had assaulted the complainant at all, and he stated that there were no other questions he could ask these witnesses. The medical evidence concerning the injuries suffered by the complainant was led after the substitution of the charge and the appellant was given the opportunity to contest this evidence.
After careful consideration of the matter we have come to the conclusion that the appellant was not prejudiced and that the irregular procedure adopted by the State did not result in a miscarriage of justice.
The second complainant was brain damaged as a result of the attack and his evidence did not establish anything more than the attack on him. He did not see his attacker and could not identify the appellant. And as to the medical evidence his injuries and their effects upon which grievous harm was based, it fell to medical officer who gave evidence at the tail end of the prosecution case, and whom the appellant had every opportunity to cross-examine. Regrettably I cannot agree with Mr. Kgalemang that the appellant suffered any prejudice by the alleged substitution of charges in count 3 as a result of the irregularity of the . Further more, if there was any irregularity it did not result in any substantial miscarriage of justice - see section 13(3) of the Court of Appeal Aa {Cap 04:01}.
I turn next to the identification of the appellant as the attacker. There are several cases which set out the guidelines which are to be observed by a trial judge when identity is an issue. See R v Turnbull and Others (1976) Cr. App R. 132; M 9761 3 ALL E.R. 549 and S v Mthetwa 1972(3) SA 766 A.D. at 768 where Holmes J.A delivered himself thus: -
"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 , the evidence by or on behalf of the accused. The list is not . These factors, or such of them as are applicable in a case, are not individually decisive, but must be weighed one the other in the light of the totality of the evidence, and the ."
It is evident from the authorities above cited and others that: First the court must warn itself of the special need for caution before convicting in reliance on the correctness of the identification; secondly, the court must examine closely the circumstances in which the identification came to be made. At what distance? In what light? Was the identification impeded in any way e.g. by passing traffic or commotion? Had the witness ever seen the accused before? How often? If only occasionally had she any reason for remembering the accused? What time elapsed between the original observation and the subsequent identification to the police? Thirdly the judge must remind himself of any specific weaknesses which had appeared in the identification evidence. Recognition might be more reliable than the identification of a stranger, but even when the witness was purporting to recognise someone whom he knew, the court should remind itself that mistakes in recognition of close relatives and friends are sometimes made.
In the instant case this was a case of recognition and not strictly speaking identification. The first complainant had known the appellant since his childhood knew him by his childhood name of Semboya. He recognised him in bright day-light when he went to their hut to speak to them. A conversation, which lasted few minutes took place between them. She was able to remember the apparel the wore on the day of the incident. Upon regaining consciousness she made report of the attack to Keleemetse Ikageng in which she named the person who her husband and herself. She repeated the name of their attacker to the and informed the police of the home of the attacker. Following the name the description of the home, the police tracked down the appellant. There can but no doubt that the recognition of the appellant by K. M. is reliable and be flawed. Add to this the appellant's attempt to run away when invited to the police to the police station for interrogation, and the appellant's failure to inform the police of where he was at the material time until all the was in before springing his alleged alibi. The defence of alibi was not raised.
The appellate court, seized of the full record of the evidence, is in as good a position as the trial court to glean the reasons why a trial court came, on the evidence before it, to the conclusion it arrived at. If the appellate court cannot find reasons for the conclusions arrived at by the trial court, then it follows that the conviction must be quashed.
In cases of sexual offences an early report of the offence by the complainant goes some way to buttress the allegation that the offence was committed. It shows consistency. The complaint must have been made without undue delay but at the opportunity which, under all the circumstances, could reasonably be expected, to the first person to whom the complainant could reasonably be expected to make it KvP. 1967(2) SA 497. K. M. made the complaint of to Keleemetse Ikageng (PW3) and the police on the day of the incident. The 's examination of K. M. was conducted on the same day 1 January 1999. The doctor testified that K. M. "had a deep cut in the skull, there an open wound on the left arm. Both arms were fractured. There were bruises the cervix and bleeding from that area. The private parts had some sand and bleeding from that region." The doctor concluded that the injuries on cervix could be indicative of rape or assault. These findings are supportive of allegations of rape in the first count, and grievous harm in the second count.
With regard to M. M., the doctor observed that his speech was confused as a result of brain injury. He had a stiff neck which also indicated an injury there. He explained that the 7tn nerve - (facial nerve) was paralysed and that this could be due to brain injury at the base of the skull, because that is where the nerves pass to the facial muscles. The skull X-ray showed multiple fractures. The C.T. scan showed a collection of fluid on the brain.
Section 2 of the Penal Code defines Grievous Harm as:
"Any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which extends to permanent disfigurement or to any permanent or serious injury to any
external or internal organ, membrane or sense." I am left in no doubt that the multiple fractures and brain damage sustained by M. M., as a result of the attack on him, fall within the above definition of grievous harm and are supportive of the appellant's conviction on count 3.
The learned Ag. Judge before whom the appellant appeared for sentence, carefully considered the record before him and the reasons given by the trial magistrate for arriving at the conclusion that the appellant was guilty of all three counts before confirming convictions on all three counts.
As regards the rape in count 1, section 142(2) of the Penal Code as amended by section 3 of Act No. 5 of 1998, provides that: -
"(2) Where an act of rape is attended by violence resulting in injury
to the victim, the person convicted of the act of rape shall be
sentenced to minimum term of 15 years' imprisonment or to a
maximum term of life imprisonment with or without corporal
punishment."
On the facts of this case the sentencing court had no alternative but to sentence the appellant to nothing less than 15 years' imprisonment. On the two counts charging appellant with grievous harm, the relevant statutory provision is section 230 of Penal Code as amended by Act No 13 of 1993 which reads: -
"(1) subject to the provisions of this section, any person who unlawfully causes grievous harm to another by the use of an offensive weapon or any other means whatever is guilty of an and shall,on conviction be sentenced to a term of of not less than 7 years or more than 14 years.
(2) where a court convicting a person under sub-section (I) finds that there were extenuating circumstances, it may impose a lesser sentence than that prescribed in sub-section (I)."
The sentencing judge said, rightly, that such factors as provocation, intoxication, mental defect and a person's state of mind which may otherwise be considered is circumstances in extenuation are not present in the instant case. And that at 26 the appellant cannot be regarded as of a youthful age and so his actions cannot be attributed to immaturity. He thus found no extenuating circumstance in favour of the appellant and therefore imposed, rightly in my view, the mandatory minimum sentence of 7 years on counts 2 and 3 respectively.
Now, section 3(5) of the Penal Code (Amendment) Act No 5 of 1998 provides
that: -
"(5) any person convicted and sentenced for the offence of rape shall not have the sentence imposed run concurrently with any other sentence whether the other sentence be rape or any other offence."
The sentencing Ag. High Court Judge ordered the sentences to run consecutively, resulting in the globular term of 29 years imprisonment. The appellant lodged his appeal, not only against conviction, but also against sentence. We were all dismayed by the severity of the cumulative term of imprisonment imposed by the sentencing court. It was clear to us that even in murder cases, where a life is tragically lost, if there are circumstances of extenuation, the sentences imposed range between 10 and 25 years, depending on the surrounding circumstances.
In the instant case, where no life was lost, but there was severe grievous injury, the globular sentence of 29 years imprisonment was manifestly excessive. This court is mandated by section 13(5) of the Appeal Court Act {Cap 04:01} on appeal against sentence, if it thinks that a different sentence should have been passed, to quash the sentence passed in the lower court and substitute such other sentence, whether greater or lesser or of a different character than the original sentence, as it thinks ought to have been passed. In the instant case the sentence of 15 years7 imprisonment for rape takes into consideration the fact that the rape was attended by violence resulting in injury to the victim. There is, however, no provision that the sentences imposed for the two counts of grievous harm cannot be ordered to run concurrently.
We are of the unanimous view that by allowing the sentences on counts 2 and 3, which were committed for the common purpose of rape, to run concurrently, a punishment for the offences committed by the appellant would be arrived .
Accordingly the sentence imposed is altered to this extent:
The sentences imposed on all three counts are confirmed.
The sentences imposed on counts 2 and 3 are to run concurrently.
In effect, the appellant is to serve a globular sentence of 22 years' imprisonment, instead of the 29 years imposed by the sentencing court.
Despite the valiant efforts of Mr. Kgalemang who took every arguable point in this appeal, I am unable to say that there was anything remiss with the conviction. The appeal is accordingly dismissed, save as indicated, in alteration of the character of the sentence imposed. It is accordingly so ordered.
Delivered
in open court at Lobatse this 31st day
of January 2001
I
AGREE K.R.A. KORSAH (JUSTICE OF APPEAL)
I
AGREE ZIETSMAN (JUSTICE OF APPEAL)
I AGREE
SIR JOHN BUOFELD
(JUSTICE OF APPEAL)
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