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Khukhwane v The State (Criminal Appeal No. 039 of 2005) [2006] BWCA 10 (26 January 2006)
.RTF of original document
IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Criminal Appeal No. 039 of 2005
High Court Criminal Appeal No. 20 of 2002
In the matter between
KEOAGILE KHUKHWANE
APPELLANT
VERSUS
THE STATE
RESPONDENT
Lobatse, 10 and 26 January 2006
Appellant in person
Mr. K. Modie assisted by Mr. Mmolainyane for the respondent
J U D G M E N T
CORAM:
TEBBUTT JP
LORD COULSFIELD JA
McNALLY JA
TEBBUTT JP
1.
The appellant was convicted in a magistrate’s court of rape and sentenced to 10 years
imprisonment and 4 strokes with a light cane. His sentence was not backdated to the date on which he was taken into custody. An appeal
to the High Court was unsuccessful but an application by him to appeal to this Court was granted. The reason for this was that he
had not been told by the trial court of his right to have legal representation and although the High Court granting him such leave
considered that there had as a result been no failure of justice, it felt that this Court might take a different view.
2.
This Court has on several occasions held that it is not a peremptory or mandatory duty of a judicial officer to inform an accused
person of his right to legal representation but it is a salutary practice and should be done in every case, but whether a failure
to do so will vitiate the proceedings will depend on whether there has been a failure of justice, (see Moroka v State 2001 (1) BLR 134 and cases there cited; Badisa Moatshe v State Cr App 26/2001 (CA), as yet unreported). In deciding whether there has been a failure of justice the court must look at all the facts
and if satisfied that on the evidence the guilt of the appellant has been established beyond reasonable doubt it may dismiss the
appeal. (See Makwapeng v State 1991 (1) BLR 48 (CA) at 54 A-C; Moroka v State supra). In this case the guilt of the appellant was overwhelmingly proved and there was no failure of justice.
3.
His appeal against his conviction was accordingly dismissed and his conviction confirmed.
4.
As to the sentence, this court has time and again expressed the undesirability of coupling strokes with a long period of imprisonment.
It has, moreover, also become the practice to backdate sentences unless, in the exercise of its discretion the trial court has good
reasons for not doing so.
5.
The sentence of 10 years imprisonment, which it was mandatory for the trial court to impose, is therefore confirmed but the sentence
of 4 strokes is deleted. The sentence is backdated to 10 December 1999.
6.
The following order is therefore made:
(a)
The appeal against conviction is dismissed.
(b)
The sentence of ten years imprisonment is confirmed, but the sentence of 4 strokes is set aside. The sentence is backdated to 10 December
1999.
DELIVERED IN OPEN COURT AT LOBATSE ON 26 JANUARY 2006
__________________
P. H. TEBBUTT
JUDGE PRESIDENT
______________________
I AGREE
LORD J. COULSFIELD
JUDGE OF APPEAL
______________________
I AGREE
N. J. MCNALLY
JUDGE OF APPEAL
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