Botswana: Court of Appeal

                           Court of Appeal Criminal Appeal No. 25 of 2004

In the matter between

GROSSKOPF J.A.

The appellant was convicted in the magistrate’s court at Molepolole on three counts, namely burglary (contrary to section 300(1) (a) and 300(2) of the Penal Code, Cap. 08:01), robbery (contrary to section 291, read with section 292(1) and (2), of the Penal Code) and theft of a motor vehicle (contrary to section 3(1) and (2) of the Motor Vehicle Theft Act, Cap. 09:04). The magistrate sentenced the appellant to 7 years imprisonment and four strokes with a light cane for the burglary and to 12 years imprisonment for the theft of a motor vehicle. The sentences were ordered to run consecutively, and to be effective from 10 April 2000, which was three days after the appellant had first been taken into custody. The magistrate was of the opinion that a proper sentence for the robbery fell outside his jurisdiction and he accordingly committed the appellant to the High Court in terms of section 295 of the Criminal Procedure and Evidence Act, Cap. 08:02, for sentence in respect of the robbery count.

Where an accused person is committed for sentence the High Court is required, in terms of section 296(3) of the Criminal Procedure and Evidence Act, to enquire into the circumstances of the case and, if satisfied as to the accused’s guilt, to proceed as if such accused had pleaded guilty before the High Court in respect of the offence for which he has been so committed. The High Court considered the charge sheet in respect of the robbery count and concluded as follows:

“The particulars of the offence in respect of the second offence [the robbery] are however defective in another respect. Section 291 [of the Penal Code] requires that the use or threat of use of the violence must be in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained. This is an essential element of the offence of robbery and it must be alleged in the particulars of the offence. This was not done. A failure to allege an essential element of the offence in the particulars of the offence is fatal to the charge. The charge on Count 2, being fatally defective, the accused is acquitted and discharged on it.”

“The accused person with the other two who are not before this court on the night of the 5^th March 2000 at Motsamai ward Ditshegwane village in the Kweneng Administrative District acting together in concert robbed Collin Alstadt and his wife Sampie Alstadt [of] cash amounting to P25 000.00 and properties valued [at] P5 430.00 and at or immediately after the time of robbery did use personal violence to the said Collin Alstadt and his wife Sampie Alstadt by pointing a pistol at them and assaulting them.”

It is debatable whether the charge sheet was indeed defective in the respect suggested, but be that as it may, the High Court in any event had the power to confirm the conviction on the robbery count in view of the proviso to section 10(1) of the High Court Act, Cap. 04:02, which reads as follows:

“Provided that notwithstanding that the Court is of the opinion that any point raised might be decided in favour of the accused, no conviction or sentence shall be set aside or altered by reason of any irregularity or defect in the record or proceedings unless it appears to the Court that a failure of justice has in fact resulted therefrom.”

In terms of section 13(3) of the Court of Appeal Act, Cap. 04:01, this Court has the same powers in this respect as the High Court.

In my view it could therefore be argued that the conviction on the robbery count should not have been set aside by the Court a quo by reason of a defect, if it was indeed such, since the alleged defect did not result in any failure of justice. The State did not however lodge a cross appeal in this connection and the appellant did not have the opportunity to consider this aspect and to address us on it. In these circumstances we shall not make any order on the count of robbery.

The Court a quo confirmed the conviction of the appellant on the other two counts (i.e. those in respect of the burglary and the theft of a motor vehicle) but set aside the sentence of four strokes with a light cane imposed for the burglary. The Court a quo further ordered the sentences of imprisonment imposed in respect of the burglary and the theft of the motor vehicle to run concurrently, and not consecutively as laid down in section 3(5) of the Motor Vehicle Theft Act, and as ordered by the magistrate. The Court a quo was of course entitled to order the sentences to run concurrently in view of the judgment of this Court in the case of Badisa Moatshe v. The State, Criminal Appeal 26/2001. It was held in that case that the provision in section 3(5) of the Motor Vehicle Theft Act that sentences are to run consecutively is in violation of section 7(1) of the Constitution of Botswana and that it accordingly falls to be struck out.

The appellant appealed against his conviction on the burglary and motor vehicle theft counts and the sentences in respect thereof, as altered by the Court a quo. The appellant appeared before us in person and handed us a document setting out his argument. He had previously also filed “heads of argument” with the Registrar in which his submissions had been set out. Before us he further made certain additional oral submissions. I shall deal with these various submissions of the appellant in turn.

Splitting of charges
In my view there is no merit in the appellant’s argument that there has been a splitting or duplication of charges. The appellant was charged with three distinct offences, namely burglary, robbery and theft of a motor vehicle. Each of these offences required a separate act with a separate intention. (See State v. Mosala and Others, 1990 BLR 588, where the Court considered the test for splitting of charges). The appellant’s objection to the duplication of charges in any event fell away once the Court a quo acquitted the appellant on the robbery count.

Defence of an alibi

It is the State’s case that the appellant and two others broke into the house of the two complainants, Gadifele Sampie Alstadt (PW1) and her husband, Collin Cyril Alstadt (PW2), in the middle of the night around 01:00 on 5 March 2000. They entered the bedroom of the two complainants, switched on the light and demanded money. The Appellant hit PW1 with an iron bar on the head while one of his companions pointed a gun at her and her husband. The man holding the gun later demanded the keys of their vehicles whereupon PW1 handed him the keys of their Toyota Hilux. The culprits then drove off with this motor vehicle.

The witness PW1 described their attackers the following morning to her shop assistant, the witness Gabampoke Medupe (PW3), and mentioned that one of them had a scar on his face. The witness PW3 thereupon informed PW1 that the person with the “ugly scar” and his companion had spent the entire afternoon of the previous day, the 4^th March 2000, at the complainants’ general dealer shop at Ditshegwane village. It was the evidence of PW3 that the person with the “ugly scar” on his cheek came to her in the shop at around 14:00 and asked her about a certain Phane Gasemodimo. PW3 subsequently identified the appellant at an identification parade as the person whom she had seen at the shop on 4 March 2000. PW3 testified that this person (the appellant) and his companion were the only strangers at the shop that afternoon. They were sitting at the entrance to the shop and remained there until nightfall.

The appellant, who was unrepresented at the trial, cross-examined the witness PW3 and disputed that he had been at the shop during the afternoon of 4 March 2000, but the witness repeated that she had seen him there with another man. The appellant did not, however, disclose his alibi at that stage of the proceedings. Nor did he do so during the evidence of the investigating officer, Inspector Takongwa (PW5). This witness testified that during the course of his investigations the appellant

“Voluntarily led me to Ditshegwane village with his accomplice and showed me a place where he said they had hid…. The accused showed me a gate they entered through …. He then took me to the backside of PW1 and PW2’s house where there were two disused houses [where] they claimed to have laid in wait ….” (sic)

This evidence was not specifically disputed by the appellant when he cross-examined the witness PW5.

“(2)      It shall be lawful to admit evidence that anything was pointed out by the person under trial … notwithstanding that such pointing out … forms part of a confession or statement which by law is not admissible against him on such trial.”

(See further S v. Mncube 1991(3) SA 132 (A))

The appellant testified at his trial and disputed the evidence of PW1, PW3 and PW5 which placed him at the scene of the crime on the afternoon and evening of 4 March 2000 and the early morning of 5 March 2000. It was his evidence that he had not been to Ditshegwane on 5 March 2000 or on any other day. He specifically denied that he had led PW5 to the yard of the complainants where he allegedly showed PW5 the two houses at the back of the complainants’ house.

The appellant relied on the defence of an alibi. He testified as follows in this regard:

“On the 4^th March 2000 I was enjoying my brother’s birthday in Gaborone which went on from the 4^th to the morning of the 5^th. When we parted I went to Why Not Club and bar at Old Naledi where I remained till 11:00 and 12:00 at night. From there I went home.”

The appellant called his brother, Peter Kenosi (DW2), to support his alibi, but his brother contradicted him in a material respect when he gave the following answer in cross-examination:

“The accused never left home that night. They danced at the party till morning. It is not correct that the accused ever left Old Naledi for Why Not Club between 11:00 pm and 12 midnight of the 4^th March 2000.”

The appellant’s alibi is therefore not corroborated by his own witness. It is further contradicted by the witnesses PW1, PW3 and PW5 who were all found to be credible and reliable witnesses. In the light of these circumstances I am of the view that the trial magistrate was fully entitled to reject the appellant’s defence of an alibi.

Unreasonable delays
The appellant complained about unreasonable delays in this matter. There have indeed been many delays. The crimes were committed as far back as 5 March 2000 and the appellant was arrested in Gaborone shortly thereafter on 7 April 2000. The trial commenced more than a year later on 28 June 2001. The magistrate referred the matter to the High Court on 28 November 2001 but the hearing in that Court only took place a year later on 15 November 2002. The judgment of the High Court was delivered yet another year later on 15 December 2003. We were not informed why there had been such long delays on so many occasions, but I shall assume in the appellant’s favour that at least some of these delays were indeed unreasonable. The appellant could not, however, show that he has suffered any prejudice as a result of such delays. The magistrate ordered that the appellant’s sentences be reckoned from 10 April 2000, the day he first appeared in court. That was only three days after he had first been taken into custody. There is no indication that the Court a quo changed the magistrate’s sentence in this respect and we confirm that the appellant’s sentences are to run from 10 April 2000. The delays therefore did not cause any prejudice in this regard.

Identification parade
The witnesses PW1 and PW3 both pointed the appellant out at an identification parade held on 10 April 2000. This was only about five weeks after the crimes had been committed and at a stage when the witnesses were still able to recall what the suspect looked like. The witness PW2 suffered from poor eye sight and he was therefore not even asked whether he could identify the appellant.

There were 13 persons in the parade, 12 of whom were from Letlhakeng where the parade was held. The witness PW1 fairly conceded that she knew that some of the persons were from Letlhakeng and that there were even some police officers in the parade. It should however be borne in mind that the appellant had a distinct scar on his face and that it was PW1’s description of her assailant that led to the arrest of the appellant. PW3’s identification of the appellant cannot be criticised on the same ground since PW3 testified that the other people in the parade were unknown to her.

Both PW1 and PW3 had ample opportunity to observe the appellant. PW1 even noticed that the appellant was wearing khaki trousers and a so-called “sporty” on his head. In my view the magistrate was fully entitled to rely on the positive identification of the appellant by these two witnesses.

Sentence
The appellant submitted that the sentence of 12 years imprisonment for the theft of the motor vehicle induces a sense of shock and that it should accordingly be reduced. It is certainly a heavy sentence, but that is the minimum penalty prescribed by section 3(2) of the Motor Vehicle Theft Act, Cap. 09:04 for the theft of a motor vehicle where the violence used or threatened involves the use of a firearm or other offensive weapon. The undisputed evidence of the witness PW1 was that the person holding the gun had demanded the keys of the vehicle from her. The witness PW1 was also hit on the head with an iron bar, which can be described as an offensive weapon. In those circumstances the sentence of 12 years imprisonment is the statutory minimum sentence. I may add that section 3(5) of the Act provides that no sentence or any part of any sentence imposed in respect of an offence under section 3 shall be suspended.

Incomplete record
The appellant in conclusion complains that the record of the proceedings in the magistrate’s court is incomplete. He alleges now for the first time that he applied to the magistrate during the course of the proceedings in the magistrate’s court to inspect the handwritten statements of the prosecution witnesses but that the magistrate refused his request. There is no record of such a request by the appellant. He has however never raised the objection of an incomplete record before and cannot expect the Court at this late stage to consider the alleged violation of his constitutional rights on the assumption that he had made such a request
and that it had been refused by the magistrate.

We have considered the appellant’s submissions but can find no reason to interfere with his conviction or sentence. His appeal is accordingly dismissed.