Mabutho v The State (Criminal Appeal No 20 of 201) [2002] BWCA 14; [2002] 1 B.L.R. 67 (CA) (30 January 2002)

The appellant originally faced a total of nine counts. At the commencement of the trial the State dropped Counts 1 and 2 and also withdrew Count 6 which was substituted by new Counts 6 and 7 with consequential renumbering. At the end of the trial the State withdrew Counts 9 and 10. The appellant was convicted of all remaining counts. He appealed against conviction and sentence on the principal ground that there was a miscarriage of justice because the magistrate refused to recuse himself, with the result that the appellant declined to take any further part in

the proceedings. That appeal was dismissed. The appellant then sought leave to appeal to this Court on basically the same grounds. Lisimba ]. held that these grounds had no merit, but allowed leave to appeal on the grounds that the magistrate made no findings in respect of Counts 6 and 7. He also granted leave to appeal on sentence.

At the commencement of the hearing before this Court, counsel for the State accepted that for the reasons given by Lisimba J. he could not support the conviction on Counts 6 and 7, and he also conceded that there was inadequate evidence to justify a conviction on Count 8. In light of these concessions, which in my view were properly made, the conviction on Counts 6, 7 and 8 will be quashed. Accordingly all that is now left are the convictions on Counts 3, 4 and 5. Counts 3 and 4 relate to breaking and entering of a dwelling house and theft of property from that house. Count 5 is a count of robbery.

I shall deal first with Counts 3 and 4. The property stolen Included a stereo radio with two speakers, a white shirt with red stripes, and a dark suit. All of these items were eventually recovered and Identified by the owner. The appellant's argument was that none of these items was found in his personal possession, and there was no evidence to link him with these items. He maintained that the evidence was confused in that the police officer who found the radio described it as an Ekco whereas the owner described it as an Elk, and also that one of the speakers which

had been painted was variously described as coloured white, cream grey or light green. The items which were found in a room in his sister's house, having been transferred by her from his former room, could have been put into his room by anyone as the lock was defective. The magistrate got the evidence wrong when he said that the appellant's sister gave the police a speaker, a shirt and a suit, which the appellant left in his room when he left the house. This was not what his sister had said. The appellant contended that these discrepancies and the magistrate's error meant that there was no satisfactory evidence to link him with the stolen property.

Without going into this matter in detail, as none of these points has been mentioned in the appellant's grounds of appeal, I am satisfied that there was sufficient evidence to entitle the magistrate to convict. The radio and one speaker had been sold by the appellant to PW6, Marufu. PW12, Moyo saw these items been delivered by the appellant to Marufu's house. They were recovered by the police from Marufu's house and identified by the owner as being part of the stolen property. There was evidence from PW2, the appellant's sister, that she found the other speaker in the appellant's room and transferred it to another room the tenant of which was absent. The tenant, PW15, found in his room that speaker and also a white shirt with red stripes and a black suit, all of these items being duly identified by the owner. This evidence in my opinion, despite the minor discrepancies referred to by the appellant, fully justify the inference that all of these items had at one stage been in the appellant's possession, and in the absence of any explanation for that possession

"The accused person Leonard Mabutho on the 25^th day of December, 1994 at H/N). 6790 Ikageleng Location in the Selibe Phikwe Administrative District of the Republic of Botswana robbed Ben Magandayi of his properties listed on the attached list valued P7,790.00 and at or immediately before or after the time of such robbery did use; personal violence to the said Ben Magandayi."

Although it seems possible from the record that this charge might have been amended at some stage of the trial, counsel for the State was unable to say if it had been amended, and, if so, what the amendment was. We must accordingly take the charge as it stands in the Charge Sheet. There was in fact no attached list. The real difficulty, however, is that no property of Ben Magandayi was stolen. Ben Magandayi was employed as a night watchman by the owner of the house, Franz Nicholas. He was brutally assaulted and tied up by the intruder, who then moved property out of the house, which property belonged to the owner of the house. Accordingly Ben Magandayi was robbed of nothing, and the charge as it stands has not been proved. Counsel for the State appreciated the difficulty and sought leave of this Court to amend the count in order to reflect the evidence which was given. Section 149 of the Criminal Procedure and Evidence Act read short provides:

"(1) Whenever, on the trial of any indictment or summons, there appears to be any variance between the statement therein and the evidence offered in proof of such statement, ... the court may at any time before judgment, if it considers that the making of the necessary amendment in the indictment or summons will not prejudice the accused in his defence, order that the indictment or summons be amended, so far as it is necessary,...

(2) The amendment may be made on such terms (if any) as to postponing the trial as the court thinks reasonable. The indictment or summons shall thereupon be amended in accordance with the order of the court and, after any such amendment, the trial shall proceed at the appointed time upon the amended indictment or summons, in the same manner and with the same consequences in all respects as if it has been originally in its amended form."

The power contained in Section 149 is a power to bring the wording of a charge into line with the evidence that has been led, provided that there is no prejudice to the accused in his defence. While it is clearly intended that the power should normally be exercised during the course of the trial, it is nevertheless a power which, if necessary, can be exercised in this Court. It is however a power which should be exercised sparingly in this Court because at the stage of an appeal there would no longer be any opportunity for the accused to lead evidence about the amended charge, or to consider recalling witnesses for further cross-examination. In

certain cases, the whole strategy of the defence might be affected by the amendment. This Court therefore has to be entirely satisfied that there can be no possible prejudice to the defence before allowing such an amendment. On the other hand, if there is no such prejudice, the public interest requires that an otherwise good conviction on clear evidence should not fail because of an error in the wording of the charge.

The accused person, LEONARD MABUTHO, on or about the 25^th December 1994 at House No. 6790, Ikageng Location, in Selibe Phikwe in the Selibe Phikwe Administrative District of the Republic of Botswana did rob FRANZ NICHOLAS of his property and at or immediately before or immediately after the said act, did use actual violence on the person of BEN MAGADAYI, being a night watchman of the said house No. 6790, in which the said goods were, in order to obtain or retain the said goods."

The effect of this amendment, which Is entirely in line with the evidence led, is to make it clear that the property stolen was owned by Franz Nicholas and that it was he who was robbed and not his night watchman. The appellant opposed the allowance of this amendment on the ground that Nicholas could not be robbed because he was away on holiday, and in support of this proposition relied on a decision of Mwaikasu J in Balule v. The State MiscraF63 of 1998. In that case the

accused was charged with robbing Makobo Trading Store of certain goods and at or immediately before the time of the robbery using actual violence on the person of the night watchman. The magistrate convicted, but the conviction was set aside on appeal. The ground for setting it aside was that "robbery is an offence that is committed when something is stolen from someone and force is used against such person in order to obtain the thing so stolen" (my underlining). The Judge went on to say that the thieves did not steal from the night watchman as he was not in possession of the goods, and therefore no robbery offence was committed.

In my opinion that decision was unsound. The definition of robbery in Section 291, read short, is "any person who steals anything, and ... immediately before the time of stealing it uses ... actual violence to any person ... in order to obtain ... the thing stolen ... is guilty of the offence termed robbery." (my underlining). There is no requirement for the violence to be used on the person in possession of the goods, as is clear from the words "any person." In the present case the appellant stole property and immediately before stealing it used actual violence on the night watchman in order to obtain the property. He was therefore guilty of robbery. The question is whether there would be any possible prejudice to the appellant in allowing the charge to be amended to bring it into line with the evidence. The evidence, briefly stated, came first from the night watchman Ben Magadayi who said that while on duty he saw the appellant pass the house on three occasions before dark. Later that night he was attacked, wounded and tied up by

an intruder whom he identified as the appellant. The appellant then broke into the house and moved property therefrom. He then went away to obtain transport. The complainant managed to untie himself and he was seen by the police. The police set up an ambush hoping to catch the intruder on his return to collect the stolen property. The appellant did return and was identified by police officers, but was alerted to the ambush and managed to escape. This evidence, which was not challenged, clearly established that the appellant stole property belonging to Franz Nicholas having immediately prior to the theft used substantial violence to the night watchman in order to obtain access to the house and commit the theft. When indulging in these activities, it was quite immaterial to the appellant who was the owner of the property which he stole. As the appellant, by his own choice, was not in court during the giving of evidence, no question arises as to any possible prejudice to him though inability to lead evidence to rebut the ownership of the property. On the whole matter I am satisfied that there can be no possible prejudice to the appellant if the charge is amended to reflect the unchallenged evidence before the magistrate. The State's proposed amendment will accordingly be allowed. Having regard to the overwhelming evidence against the appellant on the charge as amended, the conviction on Count 5 will stand.

imprisonment, 1 year of which was suspended for 3 years, and 3 strokes, and on Count 4 to 18 months imprisonment to run concurrently. On Count 5 the appellant was sentenced to 10 years imprisonment. The only submission made by the appellant on sentence was that the sentence on all counts should be made to run concurrently. However, as the offences were of a different nature and committed at different times, I see no reason to disturb the magistrate's conclusion that the sentence on Count 5 should run consecutively to the sentence on Count 3 and 4. The only other matter relates to the 3 strokes imposed as part of the sentence on Count 3. Having regard to the length of time since this offence was committed and the undesirability of imposing corporal punishment when coupled with a lengthy period of imprisonment, that part of the sentence will be quashed.

Botswana: Court of Appeal

Mabutho v The State (Criminal Appeal No 20 of 201) [2002] BWCA 14; [2002] 1 B.L.R. 67 (CA) (30 January 2002)