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S v Ncube (CLCLB-0013-05) [2008] BWCA 19 (15 April 2008)

.RTF of original document

IN THE COURT OF APPEAL OF BOTSWANA

HELD AT LOBATSE

Criminal Appeal No. CLCLB-0013-05

(High Court Criminal Trial No. 084 of 2002)

In the matter between:

RUFF NCUBE Appellant

v.

THE STATE Respondent

Mr. B. D. Leburu for the Appellant

Ms. J. Maupong for the Respondent

R U L I N G

CORAM: P. H. TEBBUTT, J. P.

N. W. ZIETSMAN, J. A.

J. G. FOXCROFT, J. A.

TEBBUTT, J. P.:

The appellant was convicted in the High Court on 20^th October 2003 on three counts viz. attempted murder, armed robbery and unlawful possession of arms and ammunition and was sentenced to 12 years and 10 year imprisonment on the first two counts, to run concurrently, and to fines of P100 each on the possession of arms and ammunition count. He duly noted an appeal and amplified his grounds of appeal on 7^th September 2004.

Since then the appellant has appeared before this Court at several sessions of the court each one necessitating a postponement to the following session as the record was not complete. In the session in January, I ordered that the record be completed by April as the appellant was clearly being prejudiced by the delays in hearing his appeal.

The Court is now informed that the record is still not complete; portions of the evidence of at least two of the State witnesses is missing and the whole of the evidence of the appellant in the court a quo. Ms. Maupong for the State also informed the Court that there was no prospect of the record ever being completed, all avenues, including possible access to the presiding Judge’s notes, having been explored, but to no avail. An affidavit by the Court Reporter that all her note books in which the evidence was recorded have been lost has been filed which bears this out.

This Court has held that where a record cannot be sufficiently reconstructed to make a just hearing of the appeal possible the effect is to prejudice the appellant and might result in a failure of justice. If an appellant, through no fault of his own, as is the case in casu, cannot have his appeal properly heard and adjudicated upon, there may be a failure of justice and his conviction should not be allowed to stand (See Tshabang v. The State) (2002) 1 BLR 102 (CA)). That is the situation in the present case and although the learned presiding Judge in the court a quo, Nganunu C.J., gave a full and comprehensive judgment at the conclusion of the trial in which he detailed the appellant’s evidence, nevertheless this Court is unable now, in the absence of its being able to read and consider that evidence, to evaluate the learned Judge’s findings in regard thereto which the appeal would require it to do.

It seems that the only course open to this Court is to quash the convictions and set aside the sentences. Ms. Maupong conceded as much and it is so ordered.

DELIVERED IN OPEN COURT AT THE COURT OF APPEAL, LOBATSE, this 15^th day of April 2008.

…………………….

P. H. TEBBUTT

JUDGE PRESIDENT

I agree ……………………….

N. W. ZIETSMAN

JUDGE OF APPEAL.

I agree ……………………….

J. G. FOXCROFT

JUDGE OF APPEAL