S v Tlhowe (F106 of 2004) [2008] BWCA 29 (24 April 2008)

On 24^th May 2002, the appellant herein, a Customs Officer, was arrested and charged with the offence of rape contrary to Section 141 as read with Section 142 (1) of the Penal Code (cap 08:01). The particulars of the offence were that on 26^th March 2002, at Maun Customs Quarters, the appellant had unlawful carnal knowledge of Portia Disenkeng without her consent.

Upon his arraignment, the appellant pleaded “not guilty”. During the investigations prior to the trial, and during the trial the appellant admitted that he had sexual intercourse with the complainant Portia Disenkeng but added that it was with her consent. The prosecution was therefore relieved of the onus of proving the identity of the complainant’s assailant as well as the fact that sexual intercourse had indeed taken place between the complainant and the appellant. In these circumstances, the only issue that was to be proved by the prosecution in order to secure a conviction was whether or not the sexual intercourse was with the consent of the complainant or whether it was procured by duress exerted on the complainant by the appellant.

As I have indicated above, the factual area of controversy was limited to a small compass. Nonetheless, in order for the prosecution to prove its case, evidence was led to show how it came about that the intercourse took place at all. The complainant’s evidence was that on the day in question the appellant called at their premises around 8.am and enquired of her father. When she told the appellant that her father had gone to work he is said to have asked when he was likely to come back whereupon the complainant told him that it would be about 1:30 pm if he came for lunch or about 4:30pm when he closed from work. The complainant was emphatic that at this first visit, the appellant was wearing his official uniform.

The complainant further testified that not long after the appellant had left, he returned, this time in civilian clothes and lost no time at all in forcing his attentions on the complainant by fondling her breasts and putting his hands through her panty to finger her vagina. The complainant said despite her protestations, the appellant tried on three occasions to push her into the bedroom to have sex with her. The record shows that the complainant said the appellant promised her that he would provide all her needs if she agreed to have sex with him. When that failed to break down the complainant’s resistance, the appellant resorted to threat of death.

The complainant said her fear of death got the better of her and the appellant was able to drag her to his house. Even at his house she remained obdurate but the appellant succeeded in pushing her to the bedroom and was about to have unprotected sex with her. At his juncture she screamed that at least he should use a condom whereupon he produced one and wore it on his penis before inserting it into her vagina. During the course of the intercourse she said it was painful and asked him to stop but to no avail. The complainant testified that when it was all over the appellant forced her to have a bath in his place before releasing her to go away. It was about 10 am.

The complainant ended her evidence-in-chief by saying that she cried and made unsuccessful efforts to contact the police. In due course, her senior sister arrived and she told her what the appellant had done to her. Not long after her father too arrived. She was in uncontrollable grief and anguish and cried so much so that she was incoherent and it took her some time before she could relate her ordeal to her father.

The complainant was subjected to a grueling and searching cross-examination by counsel for the appellant but the quintessence of her testimony was not dented. The appellant then testified. His defence was quite short. He admitted he called at the complainant’s premises and proposed love to her. He said she agreed to it. It was agreed that in order to avert the prying eyes of neighbours they should go to his place. He said they walked to his place which was quite close to the appellant’s place and that throughout this walk and the subsequent intercourse, he never applied any force to her. He admitted that the complainant had a bath at his place but added that it was at her request. He also admitted giving the complainant P10,00. He, however, denied that he called at the complainant’s place on two separate occasions. He also denied that he was in uniform at any time during his only visit.

On the question of the credibility of the complainant he held that after exhaustively going over the evidence of the complainant he was persuaded that she was a reliable and credible witness. He next proceeded to deal with the requirement of corroboration and said that it could be supplied by any other evidence save that of the complainant.

He found as a fact that the appellant lied unnecessarily. He said in his view the appellant’s lies under the circumstances, especially when there was no cause to, furnished the necessary corroboration. Again he took the view that the complainant’s distressed condition in the circumstances, amounted to corroboration of her claims that the sexual intercourse was without her consent. With regard to the appellant’s evidence he held that it was absolutely false. He concluded the judgment by holding that the state had proved its case against the appellant beyond reasonable doubt and convicted him as charged. He sentenced him to 10 years imprisonment.

The appellant appealed against this judgment and filed his grounds of appeal on 16^th February 2005 in the High Court, Francistown. In his judgment, Mr Justice Phumaphi said that from the record the trial Magistrate treated the evidence of both the prosecution and defence fairly and thoroughly. He also took note of the fact that unlike the High Court, the learned magistrate had the advantage of seeing the demeanour of the witnesses in assessing their evidence. Next, he considered whether the trial magistrate a quo properly directed himself on the question of corroboration. He referred to section 237 of the Criminal Procedure and Evidence Act and stated that in this jurisdiction the court was entitled to convict on the uncorroborated evidence of a single competent witness. He said in his view, what the section means is simply that the court has to be satisfied as to the competency and credibility of the witness to convict. He considered the rule of practice which had developed along-side the statutory rule in terms of which a court trying cases involving suspect witnesses, such as complainants in sexual cases, accomplices, minor children, etc, has to caution itself about the dangers of convicting on the uncorroborated evidence of such suspect witnesses. He concluded his review by saying that what the rule of practice requires is for the court to be alive to such dangers in assessing the evidence. If the court was satisfied that the witness was credible it could convict in the absence of corroboration.

In casu, His Lordship said, not only did the learned magistrate satisfy himself as to the credibility of the complainant, he also warned himself of the dangers inherent in convicting on the uncorroborated evidence of the complainant and went further to find evidence tending to corroborate her story. He said the magistrate also found that the accused’s story was false beyond reasonable doubt. He said he had examined the reasoning of the learned magistrate and he found no fault with it. Accordingly he confirmed the conviction and dismissed the appeal.

It appears that the appellant’s grounds of appeal were not formulated with the assistance of a lawyer. During the hearing the appellant appeared in person and this Court allowed him as much leeway as he needed to enable him to put his case. For example, both in his grounds of appeal and in arguments, he expended considerable time and energy detailing out what he considered to be aberrations in the hearing in the court a quo. Unfortunately these were not matters that went to the core issue i.e whether the sexual intercourse was with the consent or not of the complainant. Next, he bemoaned the fact that he had been in prison custody for far too long and invited the Court to order his release so that he might be able to continue his studies in accountancy unhampered by his incarceration. To this end he referred the Court to section 27 (4) of the Penal Code and argued that even though it was inserted into the Code after his imprisonment, this Court could act upon it and order his release.

Finally, he submitted that there was “ no independent source witness to corroborate the evidence of the complainant of this case (P.W.1)”. He had stated this in his grounds of appeal as follows: “ The evidence of P.W.1 does (?) not corroborate by any independent source witness.” I take it that the appellant’s last ground may be formulated thus: “The High Court wrongly confirmed his conviction by the magistrate when there was no corroboration of the evidence of the complainant.” I will now deal with these “grounds”.

It is a well established principle of our law that an appeal court would not disturb findings of fact made by a trial court unless there is a misdirection. This may happen if the findings are manifestly unreasonable or if they are not supported by the evidence on the record. In this case, His Lordship clearly examined the record and concluded that the learned trial magistrate carefully analyzed the evidence adduced by the witnesses. He added that the magistrate saw and heard the witnesses and observed their demeanour and was, in particular, satisfied that the complainant (P.W.1) was a credible and reliable witness and believed her. I have also examined the record and I find nothing wrong with those findings of fact made by the magistrate. The learned High Court judge was justified in upholding the magistrates findings. This ground of appeal is unmeritorious and is hereby dismissed.

The appellant’s anguish in having to spend valuable time, which he claimed he could spend on his studies, is really not a valid ground of appeal. However, he tucked on to this a plea that this Court may, acting pursuant to Section 27 (4) of the Penal Code, be gracious to order his release. However much one may sympathise with the appellant on his prison experiences, in my view they do not amount to “exceptional extenuating circumstances.” Section 27 (4) provides that “notwithstanding any provision in any enactunent which provides for the imposition of a statutory minimum period of imprisonment upon a person convicted of an offence, a court, may, where there are exceptional extenuating circumstances which would render the imposition of the statutory minimum period of imprisonment totally inappropriate, impose a lesser and appropriate penalty.”

The expression “ extenuating circumstances” appears in section 203 (2) of the Penal Code in respect of convictions for murder. Here in Section 27 (4) it is prefixed by the word “ exceptional.” My view is that only weighty matters will entitle a court to impose a lesser sentence where a minimm statutory sentence had been provided for an offence. In casu, the appellant was unable to bring to the attention of the court any such “exceptional extenuating circumstance”. I am persuaded that in all the circumstances of this case the minimum statutory sentence was appropriate. This “ground” also fails and is dismissed accordingly.

Halsbury’s Laws of Egland, (4^th Edition) Vol 11 page 454 explained that the word corroboration was not a technical term of art: it means by itself no more than evidence tending to confirm, support or strengthen, other evidence ……… The extent of corroborative evidence will necessarily vary according to the offence alleged, but it must go to show that the account of the witness to be corroborated is true in some material respect.”

Both the English rule and our statutory rule do not invalidate a conviction based on the uncorroborated evidence of one competent and reliable witness. The rule of practice as posited by Dendy Young J.A emphasises that it is a corroborating warning. This rule recognizes that it is not in all cases that corroboration of the evidence of another witness can reasonably be expected. Yet as presently applied the rule of practice appears to have three elements;

Obviously, this rule of practice which was apparently developed to ensure that there was no failure of justice cannot be elevated above the statutory rule. In my view, where the credibility of a witness is established, the correct application of the cautionary warning thereafter should be enough for a conviction. To ask for additional so-called corroborative evidence particularly if none is available in the particular circumstances of the case, will hamstrung the prosecution and be a bonanza for criminals.

I know that as the law stands now in this jurisdiction, it is fair for the defendant to pin the prosecution to the wall in sexual offence charges and insist that corroboration be provided. It should be obvious, however, that where the issue is one of lack of consent to the sexual intercourse in most cases it will be one oath against another. In such circumstances it can hardly be justifiable for an appellate court to overturn a conviction even after the cautionary warning had been heeded and meticulously applied by the trial magistrate, if there is no additional corroborative evidence available, not as a result of any lack of the exercise of due diligence on the part of the prosecution in its investigations or in tracing probable witnesses. Baron J.A appreciated the dilemma and offered a solution, in these words of Rambottom J, in the case of Bekker v. Westernraad 1942 W.L.D 214 at pages 222 – 223 at page 268.

“The question then is, in what circumstances can the court be satisfied that the danger of false incrimination has been excluded and that it is safe to rely on the evidence of the suspect witness. Ideally, the court will rely on corroboration in its strict sense, implicating the accused. But even in the absence of corroboration, there may be circumstances which can properly satisfy the court that the danger has been excluded. The circumstances do not lend themselves to close description; the nature and sufficiency of the evidence in question will depend on the nature of the facts of the particular case. The danger in all cases of this kind is of false incrimination, but the reasons for that danger – the possible motives of the suspect witness – may be many and various, and will vary from case to case. The possible motives for false incrimination, of the accomplice, the complainant in a sexual case and the possessor of stolen property, will invariably be different; the accomplice may seek to implicate the wrong person because of his relationship with the real culprit or culprits, or because of his fear of them or because of a hope that he will receive a share in the proceeds of the crime. The complainant in a sexual case may allege that a consensual intercourse was a rape out of fear of a father or a husband, or she may accuse the wrong person of what was really a rape in order to protect the real culprit……………..It is the possible motives in the particular case which the court must consider together with the evidence in the case in order to decide whether in the particular circumstances the danger of false incrimination can safely be regarded as having been excluded.”

This long quotation effectively demonstrates how the danger of false incrimination can be excluded in the absence of formal corroboration. (see per Murray J in the case of Ntekola v The State (1985) BLR 594 at 597). This guidance is welcome otherwise the search for corroboration at all costs may become a mine-field for trial magistrates and may unwittingly lead to unjustifiable acquittals by appellate courts.

In casu, the trial magistrate showed a clear understanding of what the statutory rule and the rule of practice demanded of him. He carefully examined possible motives why the complainant may wish to incriminate the appellant falsely and concluded that none, including those suggested by the appellant’s counsel, existed. He also considered the complainant’s evidence that the appellant forced her to have a bath in his house before releasing her to go home. The complainant said the appellant stood guard at the door of the bathroom to ensure that she complied with that order. As the magistrate put it, this was to obliterate any tell-tale signs of having had intercourse with the complainant. In my opinion, if the sexual intercourse was consensual, there would have been no need to take such precautions since there was no likelihood that anybody was going to examine the vagina area of the complainant when she got home.

As was put in the Monageng case, pieces of corroborative evidence should be considered as a complete picture. Taken one by one they do not tend to show that intercourse has taken place without the consent of the complainant. But taken as a whole, they certainly are capable of establishing the third element of a rape charge; that is, lack of consent. In casu, , in addition to what has been stated above, the uncontrollable anguish and crying of the complainant and the fact that the appellant had unnecessarily lied even on fairly harmless issues leave me in no doubt whatsoever that the appellant had sexual intercourse with the complainant (i.e P.W.1) without her consent. I am satisfied that the trial magistrate correctly convicted him and the learned High Court judge was right in upholding the appellant’s conviction and sentence.

Botswana: Court of Appeal

S v Tlhowe (F106 of 2004) [2008] BWCA 29 (24 April 2008)