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Moyambo v The State (Criminal Appeal Application 39/202) [2002] BWCA 24 (19 July 2002)
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IN THE COURT OF APPEAL FOR THE REPUBLIC OF BOTSWANA
HELD AT LOBATSE
Criminal Appeal Application 39/2001 High Court Criminal Trial No. F81/1999
In the matter between:
SETSHWANTSHO PICTURE MOYAMBO
Appellant
and
THE STATE
Respondent
Mr E. Fashole Luke for the Appellant Mr A.C. Mubika for the Respondent
JUDGMENT
CORAM: TEBBUTT Ag. JP
LORD SUTHERLAND JA AKIWUMI ]A
LORD SUTHERLAND JA:
The appellant was convicted of rape and sentenced to 10 years imprisonment. He
appealed to the High Court against conviction and sentence, and on 7 March 2001
his appeal was dismissed by Mwaikasu ]. In both courts the appellant was
unrepresented.
2
The basic ground of appeal Is that there were material internal inconsistencies in the evidence of both PW1, the complainant, and PW2, the appellant's mother, and also inconsistencies when the evidence of each of these two witnesses was compared with the other and with the evidence of PW3, a police officer. It is contended that the inconsistencies were such as to cast grave doubt on the credibility of PW1 and PW2, and that the magistrate failed to make any attempt to explain or reconcile the inconsistencies, and failed in most instances to take them into account when reaching his assessment of the credibility of these witnesses.
In order to see what these inconsistencies were, it is necessary to set out the material evidence led before the magistrate. PW1,
the complainant, said that she was drinking at the appellant's mother's place. The appellant arrived and gave her money to buy drink. There was a dispute about the change, and another man offered to pay the missing 10 Thebe. The appellant pulled
out a knife and threatened to kill the other man, who then left. "The accused then held me and dragged me about. The mother
tried to remonstrate with him to leave me alone but to no avail... At this time the accused had been undressing me. The accused held
me by one hand and then removed my panties. I had seven panties, as it was my menstrual period... He then pushed me down with his hands. He then used his knees to pin me to the ground.... He then inserted his penis into my vagina... He did that repeatedly for five times. After he satisfied
himself, in the morning he threw my clothes to me and he left/ran away.... While he had sexual intercourse
3
with me, his mother was not at the door way of her house looking on." In cross examination she said
"Q. Didn't I use force to undress on you? A. Yes.
Q. Can you show us where I tore the dress? A. Yes I can.
Q. When I removed your six panties was my mother present? A. Yes she was present... Q. When I hit my mother was I still holding you? A. Yes you were....
Q. I inserted my penis before or after I hit my mother? A. After you had sexual intercourse with me... Q. Did you tell the police
that I had a knife? A. I did.
Q. That's why you submitted? A. Yes....
Q. Did you show the police your torn clothes? A. Yes I did.
Q. Did the police tell you to take the clothes back? A. Yes they did."
In re-examination she confirmed that he assaulted his mother after having sexual intercourse with her.
4
PW2 was the mother of the appellant. She confirmed that there was a dispute about change, and continued "...when the girl tried
to leave, Picture went to close/block the entrance to prevent her from leaving. I told Picture to leave the girl alone and he slapped me on the cheek. I went outside. I went to tell her parents to come and pick their daughter and they refused
to come. I went back to my place. I found that Picture had taken the girl into his bed. I appealed to my child to let the girl go.
When I arrived the accused was on top of her and she was crying. It was at night. I found them having sexual intercourse. She had
been crying all along. In her cries she said, I do not want you, why do you force me to sleep with you. I had then gone to my hut to sleep." In cross-examination she said: "Q. Were we inside or on top of the blankets? A. I saw you on bed, but I could not tell whether you were inside or outside the
blankets. Q. How then can you say we had sexual intercourse, if you can not tell whether we were inside or on top of the blankets?
A. I saw you still. Q. Was I on top? A. No, I did not see you on top.
Q. What made you think we were having sexual intercourse? A. I could see that they had sexual intercourse."
5
In cross-examination she merely confirmed that she saw them having sexual intercourse.
PW3 was a police officer whose evidence was that he had received a report from the complainant of rape, and went with her to the scene.
He did not observe anything there, but the blankets had been removed. The complainant was distressed, and he took her to hospital. He saw the appellant three days later who denied ever seeing anybody. The appellant said he was in love with the complainant. In cross-examination it was put to him "Q. She claimed that she went with torn clothes and you told her to go back and come with proper ones," to which his reply was "That is not true because
if that was so I could have brought them for production in court." He was also asked "Did you collect any knife from me,
that PW1 said she told you that I threatened her with a knife?" to which he replied "I was never told anything about a
knife that is why I did not mention anything about the knife." The only other evidence adduced by the State was a medical report
on the complainant. This shows no physical injuries, menstrual bleeding, and no laboratory indication of spermatozoa.
The appellant gave evidence that he and the complainant had been lovers. When the other people left the house "I told her she
was not leaving." When he told her to remove her clothes, she refused saying she was on her menstrual period. He told her that
she wasn't going anywhere and she started crying. "My mother got
6
out and asked what was the problem and I explained to her what was happening." In cross-examination he denied having sexual intercourse with the complainant that day.
On behalf of the appellant it was submitted that there were major discrepancies and inconsistencies in the evidence and that the magistrate failed to have proper regard to these when assessing the credibility of PW1 and PW2. The particular inconsistencies to which the court's attention was drawn are as follows:
1)
PW1 said she told the police that the appellant had a knife. PW3 denies that he was told this. Plainly it was an important matter, because PW1 said that it was because the appellant had a knife that she submitted.
2)
PW1 said she showed her torn clothes to the police. Again PW3 denies this.
3)
PW1 said that the appellant hit his mother after having sexual intercourse with her, whereas PW2 said she was slapped at the initial stages when the appellant was trying to prevent PW1 from leaving.
4)
PW1 said that PW2 was present when the appellant was removing her panties, but PW2 said that she left to visit PW1 's parents when the appellant was merely trying to prevent PW1 from leaving.
5)
PW2 said that she saw the appellant and PW1 having intercourse, but PW1 said that while they had intercourse his mother wasn't at the door looking on.
6)
PW2's evidence was internally inconsistent in that at one stage she said the appellant was on top of PW1, but later she said she did
not see him on top.
1)
7
7) Although PW2 said that she saw them having intercourse, she said she could not
tell if they were on top of or inside the blankets. It was submitted that these inconsistencies would have to be explained or reconciled before the magistrate could find PW1 and PW2 to be credible witnesses. The magistrate made no mention in his judgment of PW3's evidence
which flatly contradicted PW1 on two important matters. His only reference to the discrepancies between PW1 and PW2 was to say about PW2 "she was an elderly person and I would well understand her reticence in having to relate such unsavory details in court. I could well also understand
her confusion on some aspects in the witness stand. Elderly people are not resilient as to stand embarrassingly searching cross examination
especially when indecent incidents like rape are concerned." He further took into account in assessing the credibility of the complainant that "the accused had said that his main aim was to prevent PWl from leaving at night and risking being attacked on the way", a theory which he then disparages. The record, however, contains no such assertion by the appellant. On the whole matter therefore it was submitted that the magistrate could not properly hold PW1 and PW2 to be credible witnesses, and he should have acquitted the appellant.
The magistrate correctly identified the basic legal principles involved in approaching
evidence in cases of this kind. What he said was:
"In sexual offences there are certain peremptory requirements that have to be satisfied before any findings can be made on anything.
8
The credibility of the complainant should be established. If credibility is lacking on the complainant then cad it quaestio. Credibility is determined by assessing different elements that go into the complainant's
testimony. It is not limited to demeanour only. Demeanour can be simulated by dissembling witness and thereby mislead the Court. It is also pertinent to note that people behave differently in the witness box. Some are different, some panick and stammer without necessarily being dishonest. Some witnesses are of an inscrutable type who may not be intimidated by anything and may lie through out their testimony.
In assessing credibility of a witness the inconsistencies and contradictions that he/she makes should be taken into account. Her/his
evidence should compared with those of other witnesses to test it.
Once credibility has been established the next element to establish would be whether there is corroboration of the complainant's story.
Corroboration can be gathered from other evidence save that of the complainant. The importance of corroboration lies in the fact that charges of this nature are easier to level against someone but they are very difficult to disprove."
9
The issue in this case is whether he applied these principles correctly to the evidence, in particular the principle that inconsistencies and contradictions must be taken into account. It is not enough to be aware that these exist. An attempt must be made to reconcile them. As was said by Aguda
J.A. in Monageng v. The State 1983 BLR 254 at 278 "It is not sufficient that the trial magistrates and judges should merely be aware of the contradictions and inconsistencies in the evidence of witnesses for the prosecution. They must be able to reconcile those contradictions and inconsistencies, otherwise no conviction can validly be obtained with them unresolved." This dictum was followed in Keemetswe v. The State 1997 BLR 126. If discrepancies are of a minor and incidental nature, it may be possible to explain them by saying that even the most honest of witnesses may have lapses of memory, particularly if some time has elapsed between the event and his giving evidence. Where however there are clear contradictions on matters which may be of importance, it will be necessary to find a satisfactory explanation for them before it can be said that a witness is credible and reliable.
In the present case there are two contradictions which appear to me to be of major importance. These relate to the matters of the torn dress and the knife which PW1 says she told the police about but which PW3 denies. The existence of torn clothing might well have been of useful evidential value. The existence of the knife was also of importance as it was because of that that PW1 said she submitted to the appellant's advances. If PW3's evidence is acceptable, and there is no reason to
10
doubt it, it follows that PW1 gave evidence on these points which was untrue. The magistrate however did not even refer to these matters in his judgment, and apparently did not take them into account before saying
that he found PW1 credible. In my opinion he could not properly hold PWl to be credible while these contradictions were unresolved or not satisfactorily explained. That in itself would be sufficient to cause this court to hold that
the conviction was flawed, and the other inconsistencies to which this court was referred merely reinforce this view. I am therefore of opinion that the evidence in
this case did not entitle the magistrate to hold that the complainant was a credible witness, and that being so he could not convict the appellant. The appeal against conviction is accordingly allowed, and the conviction and sentence are set aside.
Delivered in open Court in Lobatse this 19th Day of July 2002.
R.I. SUTHERLAND JUDGE OF APPEAL
I agree:
P H TEBBUTT ACTING JUDGE PRESIDENT
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I agree:
A M AKIWUMI JUDGE OF APPEAL
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