N.J McNALLY JA
1.
The appellant was charged with Rape, in Contravention of Section 141, as read with Section
142 as amended by Section 2 and 3 of the Penal Code Amendment Act, No. 5 of 1998. He pleaded guilty and was found guilty as pleaded.
2.
The particulars of offence were set out as follows-
“The accused person Frank Baliki on the night of the 20th day of July 2002 at Kolokwaneng Village in one of the Kgalagadi Administrative District (sic) of the Republic of Botswana did have
Unlawful Carnal Knowledge of……………….a minor aged 13 years without her consent.”
3.
The Magistrate Grade I, before whom he appeared sentenced him to the statutory minimum sentence
in terms of Section 142 (1) (ii) of the Penal Code. He appealed to the High Court on sentence only.
4.
At the hearing of his appeal to the High Court he sought leave to withdraw his appeal, but
was not allowed to do so. The Learned Judge then proceeded to increase his sentence to 15 years because of the provisions of Section
142 (2). He then sought leave to appeal against the increase, and also against the original 10 years sentence.
5.
The appellant came before me, and on 14 April 2008 I granted such leave, but only in regard
to the increase from 10 to 15 years. I considered there was no prospect of success on the proposed appeal against the 10 years mandatory
minimum sentence.
6.
At the appeal hearing we took the view that it was necessary only to consider the ground of
procedural unfairness. It seemed to us that he had been given no opportunity to deal with the facts which brought the case within
the ambit of Section 142 (2).
7.
It is true that the charge (see para 1, supra) did refer to Section 142. But if the State is to rely specifically on the provisions of Section 142 (2) it should say so in the
charge. Moreover the particulars of the offence (see para 2, supra) made no reference to the facts which bring the charge within the ambit of Section 142 (2) namely “attended by violence resulting
in injury to the victim”, which is how the sub-section is worded.
8.
The appellant is a very simple peasant, and would certainly not have understood that he was
facing the prospect of a 15 year minimum sentence. He may well not have know even that he faced a minimum sentence of 10 years, but
at least the particulars of the offence were adequate to establish the facts which, whether he realised it or not, meant that he
was facing a minimum 10 years sentence. Perhaps that is why the magistrate sentenced him to 10 years.
9.
In the High Court, the Learned Judge did ask him whether he had anything to say why the injuries
caused (extensive bruising) did not necessitate the increasing of the sentence to one of 15 years. His response was that he had nothing
to say to that.
10.
I do not think he had a fair trial on that respect. Had the charge and the particulars been worded
as I have suggested (see, paras.6 and 7 supra), he might have pleaded not guilty, he might have cross-examined the complainant on the question of injury or he might have called
witnesses.
11.
In the result he was sentenced on the basis of facts with which he was not charged.
12.
The principles on which I rely have been established in this court in a number of cases. In GARE v THE STATE [2001] 1 BLR 143, CA Zietsman J.A, with whom Lord Weir J.A. agreed and Aguda Ag. J.P disagreed, held that there had not been a fair trial because the court a quo had not informed the accused of the special defence
available under Section 147(5) of the Penal Code. The court held that, by reference to Section 10 of the Constitution of Botswana,
the appellant had not had a fair trial and the conviction and sentence were set aside.
13.
In GALEBONWE v THE STATE [2002]1 BLR 46, CA Sir John Blofeld J.A with whom Lord Weir and Lord Sutherland JJ.A agreed, held on similar facts to GARE (supra) that there had been no fair trial. However on the facts they ordered a retrial.
14.
Finally, there is the case of MATLAKADIBE v THE STATE [2004]1 BLR 44 CA. Again there was the possible special defence provided in Section 147(5) of the Penal Code. Again his attention was not drawn to it.
Lord Sutherland J.A, with whom Korsah J.A and Akiwume J.A agreed, held that there had not been a fair trial. The conviction and sentence were set aside. The court was invited to order a re-trial
but declined to do so. One of the reasons was that the appellant had already served 5 years of his sentence.
15.
In the present case, there has not been a fair trial, not only on the ground that the charge was
not properly explained to the appellant, but also on the ground that the charge, as framed, did not purport to bring the appellant
within the scope of Section 142(2) (see, para 7 supra). There is no basis for a re-trial.
16.
It is for these reasons that we now reduce the appellant’s sentence to that originally imposed
by the magistrate, i.e. 10 years imprisonment to be reckoned from 23 August 2002, and it is so ordered. To that extent the appeal
is allowed.
DELIVERED IN OPEN COURT AT LOBATSE THE ……. DAY OF APRIL 2008.
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McNALLY J.A.
I AGREE
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TEBBUTT J.P.
I AGREE
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ZIETSMAN J.A.
.RTF of original document