“Where the Court of Appeal, in an appeal against conviction, considers that, notwithstanding the fact that it is of opinion that the
point raised in the appeal might be decided in favour of the appellant, there has been no substantial miscarriage of justice, it
may dismiss the appeal”
There is a similar provision in the High Court Act (Cap 04:02) Section 10(1).
10.
The Court in the Gofhamodimo Kobedi and Matshego case stated that the purpose of Section 13(3) is to ensure that convictions are not quashed because of some error or defect which
does not materially affect the substance of the trial or the conviction. That was, therefore, no sufficient reason to hold that the
refusal of discovery is per se of such a character as to require a conviction to be quashed.
11.
Furthermore, in Makwapeng v The State (1999) BLR 48 a Full Bench of this Court at 54 B-C said the following:
“In deciding the issue whether or not to set aside the conviction following such an irregularity in procedure, the appeal court must
look at all the facts established by the totality of the evidence led at the trial and if it is satisfied that the guilt of the appellant
has been established beyond reasonable doubt … then the appeal court must exercise the power to do justice given to it by
the Act establishing it, and dismiss the appeal.”
(see also Bosch v The State (2001) 1 BLR 71 (CA)).
12.
The true question, therefore, is whether the evidence so clearly proves, beyond reasonable doubt, the guilt of an accused person that
no miscarriage of justice has occurred, notwithstanding the irregularity of not furnishing the Appellant with the statements of the
State witnesses.
13.
In any event, the facts in this matter were relatively straightforward. The Appellant knew from the time of his arrest on 1 August
2003 that he was alleged to have raped the complainant the night before. He could obviously have reasonably contemplated that she
would testify against him and describe how the alleged assault had occurred and that her evidence would be simple. He would not have
been taken by surprise when she was called to testify. Nor was the evidence of PW2 of so complicated a nature as to have caused him
any prejudice when she testified. Although he was not represented, the record of the trial shows that he cross-examined both witnesses
quite thoroughly.
14.
In the Kobedi and Matshego case, the Court had this to say:
“It is obvious that access to witness statements may be important if it enables the accused to prepare to meet an unforeseen line of
evidence or attack witnesses because of some inconsistency between their statements and their evidence. On the other hand, there
may be nothing in the witness statements which is unexpected or which can be useful in cross examination.”
Those dicta are apposite in this case.
15.
Mr. Manewe, however, submitted that as the trial took place in May 2005, almost two years after the date of the alleged rape, the
Appellant, by not being given the witnesses’ statements, was not afforded a fair trial in that he was not able to have sight
of what the witnesses told the police when events were still fresh in their minds and thus to discern any contradictions between
the statements given by them then and what they said at the trial. He also submitted that by not having access to the statements,
the Appellant was not able adequately to prepare his defence. These submissions are not without merit but, as I shall presently show,
considering the overall picture in this case and whether a conviction would have inevitably resulted, they do not suffice to disturb
the conviction.
16.
In his testimony at the trial, the Appellant denied that PW2 was present at the time of the alleged rape but had gone off with one
of two companions of his, whose names he mentioned, and who would support him in his testimony in this regard. In his cross-examination
of PW2 the Appellant did not put this to her. Nor did he later call the persons he mentioned, despite saying that he would do so.
17.
In his judgment, the Magistrate said he found this evidence by the Appellant wanting, because the Appellant had not challenged PW2’s
evidence that she was present at the time or put to her that she had gone off with his friend.
18.
Mr. Manewe submitted that this was a gross-irregularity. In a judgment of this Court, the following was said about a failure to cross-examine:
“It is well recognised that a party cross examining should put to each of his opposition witnesses so much of his own case as concerns
that witness particularly where it is intended to suggest that the version of the witness is not true. The failure to do so in this
case must, in any view, as the trial Court found, cast grave doubts on the veracity of the Appellant’s testimony.”
(see Bogosi v The State (1996) BLR 702 (CA) at 709)
Mr. Manewe, however, stated that where an accused person is unrepresented such an adverse inference is not justified.
In Moetedi vs State [1997] B.LR 285 (HC) Gyeke Dako, J. had this to say about an unrepresented accused’s failure to cross examine; at page 297 G-H.
“In my view, however, the rule cannot be carried too far in situations where the accused is not legally represented and unfamiliar
with the niceties of evidential rules. I believe, it would be a retrograde step in our adversary system of criminal justice whereas
the prosecution is enjoined to prove the accused’s guilt beyond reasonable doubt to instruct that the decision by a trier of
fact whether or not to accept and believe a witness’ evidence must be made to depend on the mere fact that such evidence was
unchallenged.”
19.
Mr. Manewe further submitted that it was the duty of the trial Magistrate to have assisted the Appellant in his cross-examination
of PW2 by informing him that he should put to her any aspect on which he did not agree with her testimony. Moreover, it was the duty
of the Magistrate to have assisted the unrepresented Appellant by putting to PW2 that she was not present at the time, a factor which
was foreshadowed in his cross-examination of PW1 where he put it to the latter that they were alone when he had intercourse with
her, PW2 having gone away with his companions. That there is such a duty has been stated before in our courts and it is a salutary
one.
20.
Again, these are forceful submissions and they no doubt constituted irregularities on the part of the Magistrate, but, once more,
I am unable to find that they were of such a nature as to vitiate the proceedings and to result in the quashing of the conviction.
21.
As stated earlier, although he informed the Court that he would call certain witnesses in his defence, the Appellant did not do so.
Mr. Manewe submitted that the trial court should have subpoenaed the witnesses in order to assist the Appellant properly to present
his defence. The Appellant was apparently not in custody at the time of his trial, the record reflecting, whenever the trial proceedings
had to be postponed, the court’s admonition to the Appellant as being “Accused attend” or “Accused you attend”.
He was therefore in a position to see to it that his witnesses attended court.
22.
At the conclusion of the Appellant’s evidence, the following took place in regard to the Appellant’s witnesses’
evidence, as the record shows:
“COURT TO ACCUSED:
When are you bringing the other witnesses?
COURT:
Trial will be on the 28/6/05. Bring your witnesses”.
On 28 June 2005
“PUBLIC PROSECUTOR
Accused was to call his witnesses
COURT TO ACCUSED
Are you ready to proceed?
ACCUSED
I am ready to proceed even though one of my witnesses is not in. She has gone to collect a horse at Kumakwane, so she will not be
able to come today. I will be no longer calling the other two witnesses. I just want to call Betho Keabetswe.
COURT
Accused, you have the last chance on the 4 July 2005 to bring your witness. If you do not, you close your case.
On 4 July 2005
PUBLIC PROSECUTOR
Accused was to call his witness
COURT TO ACCUSED
Where is your witness?
ACCUSED
I did not bring my witness, so the
case can continue.
COURT TO ACCUSED
Is that the way you close your case
ACCUSED
Yes. I close my case.”
23.
It is quite clear that the Appellant did not wish to call any witnesses other than Betho Keabetswe and eventually also decided to
dispense with her evidence. He obviously had good reason for not wanting to call the witnesses. He never asked the court to assist
him in securing their attendance. For the Magistrate to have then mero motu subpoenaed the witnesses could well have been highly prejudicial to the Appellant. There was no irregularity committed by the Magistrate
and this point must fail.
24.
I come then to the evidence. The complainant, PW1, PW2 and three other of PW1’s young siblings were sleeping in their house
when the Appellant gained entry by saying that he was looking for some thieves who had stolen from his place and that they were hidden
in PW1’s house. One of the young sisters, Salome, opened a window and the Appellant told the children to remove the blankets
from their beds to see if the thieves were underneath the beds. They did so. He then entered the house where he instructed the children
other than PW1 to cover themselves with blankets. One of them tried to uncover herself and he then swore at her, saying “mosonokanyoko”,
and she pulled the blanket back over her head. The Appellant then took a knife from his pocket and switched off the light. He then
had intercourse with PW1. She said she did not scream because she was scared of the Appellant who was older than she was and she
had seen a knife, which he had opened.
25.
After he had finished, the Appellant, said PW1, switched on the light, told
the others to uncover themselves and said that if he heard any of them uttering his name, he would beat them. He left but returned
soon after. PW1 said she was crying. The Appellant said she should stop crying and asked her if she was crazy and “did she
want to be taken to a mental hospital.” He then left.
26.
PW1 said all this took place at about 1 a.m. on 1 August 2003. They then all went to the house of PW3 who PW1 told that the Appellant
was “disturbing us in our sleep”. They slept at PW3’s house and the following day she went to the police and reported
the incident and was then taken to the hospital where she was examined by the doctor. PW1 said she did not tell PW3 she had been
raped because she thought she heard PW2 telling her. PW2, however, also only said that the Appellant was “attacking”
them. PW1 said that on the way to PW3’s house she told PW2 that she had been raped by the Appellant.
27.
Cross-examined by the Appellant, PW1 said she had told the police about the knife. She denied that the Appellant had come to their
house at 7 p.m. and re-affirmed that it was at 1 a.m. She said the Appellant was alone and not with two companions and she denied
that PW2 had gone away with one of them. She denied that she had previously had intercourse with the Appellant and that they were
lovers.
28.
PW2, who was 14 years old at the time, gave a story that coincided in practically every respect with the testimony of PW1. She, too,
told of the Appellant’s saying he was looking for thieves who were hidden in their house and that he had gained entry to the
house by this ruse. She said he even pretended to be using his cellphone to call the police because they were hiding the thieves
and were refusing to open the door for him. She also said that he instructed them, apart from PW1, to cover themselves with blankets
and when one of them tried to uncover herself he asked her why she was uncovering herself and swore at her, saying “mosonokanyoko.”
PW2 said she heard PW1 scream. They did not know what to do and kept themselves covered.
29.
They later uncovered themselves. Appellant left but came back shortly afterwards and said to PW1 who was crying “why are you
crying, are you insane, do you want to be taken to mental hospital (sic)”. He also told them that if he heard them mentioning
his name, he would beat them up. They then all went to PW3 where she, PW2, told her “everything that had happened at our yard”.
On their way to PW3’s house, PW1 told her that the Appellant had raped her. She did not tell PW3 that PW1 had been raped because
she was scared. She told PW3 that the Appellant was “disturbing and harassing us in our sleep”.
30.
Under cross-examination by the Appellant, PW2 said she heard PW1 screaming “but it was not loud”. She said she told PW3
that the Appellant was harassing them and not that Appellant had raped PW1 because PW3 was an adult and would understand what she
was talking about. The incident had taken place “past 1 a.m.” She did not see a knife as she had covered herself with
a blanket.
31.
PW3 testified that she was sleeping when she was awakened by PW1, PW2 and the other children who said “they were running away
from the Appellant who was disturbing them from their sleep.” They said the Appellant told them he was looking for thieves
who had stolen items from his place. They slept that night at her house and left the following day. A few days later, the mother
of the children told her that one of the children had been raped by the Appellant. She was shocked because none of them told her
about being raped. If they had, she would have questioned them further. PW3 said PW1 appeared to be scared when she arrived at her
home, holding her hands to her chest and breathing heavily. PW3 was not cross-examined by the Appellant.
32.
The investigating officer said that on 1 August 2003, the complainant reported that she had been raped in front of her sisters by
the Appellant. She was crying at the time. He took her to be medically examined. He arrested the Appellant who said he had not had
sexual intercourse with the complainant. He had visited her house “on the 1 August 2003”, because there were criminals
who had stolen items at his place and he suspected that they were hidden at the complainant’s house. He handed in the medical
report form with PW1’s name on it which he had written and signed and on which he had affirmed the police date stamp of 1 August
2003. Cross-examined, he said that PW1 had not told him about any knife.
33.
In his evidence, the Appellant said that on 30 or 31 July 2003 – he was not sure which of the two days it was – he went
to PW1’s house at about 7 to 8 p.m. He was with two companions. They then left taking PW2 with them, leaving him alone with
PW1. He and PW1 then had sexual intercourse. At about 9 p.m. he went to the lands. He returned home the following day i.e. on 1 August
2003 where he found the police who said he had raped someone. They detained him for two days when he was released. Under cross-examination
he said that he and PW1 frequently had sexual intercourse.
34.
The Magistrate found that PW1 and PW2 were credible witnesses. Mr. Manewe said that there were discrepancies in the State case which
were so fundamental that the Magistrate’s finding was not justified. He pointed to the fact that PW1 said she had told the
police about the Appellant’s having a knife but the investigating officer said she had not; that PW1 said she had not screamed
while PW2 said she did; and that PW3 had not been told by either PW1 and PW2 that the Appellant had raped PW1 but only that he was
harassing them.
35.
The last point is not really a discrepancy but a fact that casts doubt on PW1’s evidence that she had been raped. This is, of
course, true but all the other evidence, including that of the doctor, points significantly to her having been raped and there is
the uncontroverted fact that PW1 told PW2, the first person to whom she would have been expected to have done so, that PW1 had raped
her.
36.
The other factors, while undoubtedly discrepancies are not of sufficient materiality to call for a total rejection of the State’s
witnesses. It is well-known that witnesses may vary and be contradictory on certain aspects in their evidence but unless such contradictions
go to the very essence of the case, they should not affect the totality of the evidence given by them.
37.
Of more importance is an issue which arose during argument in this Court and that is the date and time of the incident. All three
State witnesses said it was in the early morning hours i.e. at about 1 a.m.; the Appellant says he was at their house in the early
evening i.e. at about 7 to 8 p.m. I can find no reason for rejecting the evidence of the State witnesses as to the time, especially
that of PW3 who said she was awoken from her sleep at about quarter to one. She would have had no reason to say that if the children
had come to her house in the early evening. Both PW1 and PW2 said that they were sleeping when the Appellant came to their house.
PW3, too, told the trial court that all the children said that the Appellant had disturbed their sleep.
38.
The date is a different matter altogether. Both PW1 and PW2 said the incident occurred on 1 August 2003; the Appellant said he was
at their house on 30 or 31 July 2003. As both Mr Manewe and Mr Kambai for the State pointed out to the Court, persons in rural areas
frequently are inexact in their fixing of dates. Something that happened after midnight. on 31 July could well be described as having
happened on 1 August. It is not disputed that the Appellant was being detained in the police cells at that time and PW1 made her
report to the police on the morning of 1 August. She was also examined by the doctor on that day which is confirmed by the date stamp
on the medical report form. The probability therefore is that the incident occurred during the night of 31 July to 1 August. This
would coincide with the Appellant’s evidence that he was at PW1’s house on 31 July. It would also verify the evidence
that the incident took place at “1 a.m. on 1 August” i.e. after midnight on 31 July.
39.
For the foregoing reason I can find no reason for rejecting the evidence of the State witnesses on the ground that they had given
an incorrect date in their testimony.
40.
As mentioned above, the trial court found PW1 and PW2 to be credible witnesses. As to PW1 the Magistrate said “she impressed
the court as a truthful witness, who did not fear and stood her ground even under vigorous cross-examination by the accused person.”
He found her to have been reliable. He found the same in regard to PW2.
41.
It is well-established that an appeal court will not disturb findings of credibility made by a trial court, which has had the advantage
of seeing and hearing the witnesses, unless it is manifest that the trial court was incorrect. I can find no reason for holding that
the Magistrate in casu was incorrect. A reading of the record, indeed, convinces me that it was correct. Allied to this is the overall
weight of the State evidence.
42.
A most pertinent factor is that something drastic caused these young children, in the middle of the night, to feel compelled to leave
the security of their own home and seek sanctuary in the home of an older person. It gives great credence to the evidence of PW1
and PW2, whose evidence corroborated the testimony of one another in almost every detail. Moreover, if it be suggested that they
had concocted their stories so as to corroborate one another it is a most surprising feature that they should have thought up the
tale of the Appellant’s telling them that he was looking for thieves which he thought were hidden in their house. It is such
an unusual story that I cannot conceive of their making it up, and that it did occur that the Appellant told them that is borne out
by the evidence of the investigating officer who said that when he confronted the Appellant the latter told him he had been to PW1’s
house to look for thieves that had stolen items from his house and who he suspected to be hidden at PW1’s place.
43.
The trial court in my view was correct in accepting the evidence of the State witnesses, the totality of whose testimony establishes
the guilt of the Appellant, in my view, beyond reasonable doubt. Despite the irregularities therefore outlined earlier in this judgment
I find that a conviction would, on the evidence, inevitably have resulted and that there has been no miscarriage of justice.
44.
It follows that the conviction must be upheld. The sentence was the statutory mandatory minimum sentence that had to be imposed and
no more need be said about it.
45.
In the result the following order is made:
1.
The appeal is dismissed.
2.
The conviction and sentence are confirmed.
DELIVERED IN OPEN COURT AT LOBATSE THIS 30TH DAY OF JANUARY 2008.
-------------------
P H TEBBUTT
Judge President
I agree
------------------------
F H GROSSKOPF
Judge of Appeal
I agree
-----------------------
M M RAMODIBEDI
Judge of Appeal
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