Botswana: Court of Appeal

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refused to consider Count 2. In his own words "Since count two was only an alternative charge I need not deal with it." After considering all the facts urged in mitigation, the trial Magistrate sentenced the appellant to imprisonment for five years together with four strokes of the cane.
Following upon his conviction as hereinbefore stated, the appellant then filed an appeal to the High Court. His appeal was heard on January 20, 1989 by Barrington-Jones, J. In a considered judgment the learned Judge on appeal dismissed the appeal on February 6, 1989. The appellant on March 21, 1989 sought the leave of the same Judge to appeal to this Court. That leave having been refused, he has now sought the leave of this court.
When this application came before this court on June 27, 1989, the appellant appeared in person whilst the State was represented by Mrs. Dambe. We took the application as indeed a proper appeal and allowed the appellant to address us as such, and this he did extensively. Mrs. Dambe also addressed us in reply.
Now it is common cause that in the night of January 13, 1988, the appellant had sexual intercourse with the complainant. The prosecution case is that the sexual intercourse which took place between the appellant and the complainant was without the complainant's consent. On the other hand the appellant's case was that such intercourse was with her consent.
In the evening of January 13, 1988, the complainant, according to her evidence at the trial, travelled from a place called Sekoma to Werda. It was already dark. At Werda he went to the police quarters into the house of the appellant, and asked for her friend by the name Boipuso. Appellant asked her to go into the house whilst he went to

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have his bath. She complied. Later he came into the house and asked
for her name, and the name of her mother. She told him. He later
told her to sleep since it was already night, and it was raining. He
spread a mat on the floor for her to sleep on. She slept in her dress
on the floor whilst he slept on the bed. She continued her evidence
thus:
"Then he got off from the bed and laid on top of me. He pulled the sheet from me, put it on top of himself. Then he had intercourse with me forcefully. When I tried to cry he covered up my mouth with his hand. He placed his tongue into my mouth. When he realized I was crying seriously loud he went to open the door. He had locked the door. I then went away.... He pulled off the pantie from me. He did not at all wear anything. As I left through the gate, he rushed to me and said he would not do anything that I must go back. I did not agree..."
She then went to lay a complaint with a police officer by the name
Nkone. She was taken to the Hospital the next day for medical
examination. Nkone gave evidence as PW2. He told the court as
follows, among other things:
"On 13.01.88 I was at Werda at my house at police camp. I saw complainant coming to my
house about 21.45        When I came out ....
I saw her, she was crying. When I looked at her she told me she was raped in the police camp."
He took her to a senior officer, a Sergeant, and both police officers
took the girl to the appellant's house. There she pointed at the
appellant as the person who had raped her. They saw the mat upon
which she alleged she had slept, and two hair clips belonging to her.
The Sergeant gave evidence as PW3. According to the Medical Doctor's
evidence, no external wounds or bruises were found on the
complainant. There were no extra genital injuries, no spermatozoa,
but the labia minora had suffered 0.5 cm abrassion wound. The lower

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borders of the labia minora were hyperemic, a bit red; and this could
have been due to infection or to penetration, most probably
penetration. According to the doctor "The genetal examination led me
to conclude that there might have been recent sexual intercourse.
According to the appellant, in the evening of January 13, 1988,
he left his friend and was going to have his bath. It was drizzling,
and it was fairly dark. He saw the complainant and asked her why she
was standing at the front of his door, and why she did not go into the
house. He told her he was going to have his bath. She went into the
house whilst he went to have his shower. He told his friend, one
Bolebantswe, that he had a visitor. Bolebantswe went into his room
and saw the complainant. After showering, he went to his room and
whilst talking with her, Bolebantswe once more came to join them.
After sometime Bolebantswe left, and the complainant told him she was
tired, she would prefer to sleep on the floor. He went outside and
when he came back into the room, he joined her on the floor where he
had intercourse with her with her consent. He continued his evidence
thus:
"We then slept. I switched off the light. After
sometime, I went to the toilet when I came back I
went into the blankets. After sometime she woke
up. I thought she was going to the toilet. I saw
her taking her dress putting it on. I asked where
she was going. She kept quiet. I ignored that and
thought she was going to the toilet. I slept. She
bent and produced shoes from underneath the bed. I woke
up, lit the light. Then she took the blanket she had
and the hand bag. I left the bedroom with her, we both
went through the gate. Outside the yard I asked her where
she was going. She told me she was going to her grandmothers.
I went with her to Nkone's house. When she opened the gate
going in, I went back to the house       "
According to him he later went to the office where he saw the
Sub-Inspector of Police, the Sergeant, Nkone and others, as well as

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the complainant. Under cross-examination, he alleged that he had met
the complainant at a place called Khakhea in 1987, February. On
January 13, 1988, he asked her who had shown her his room. She said
she had asked someone else. He admitted that he had not had sexual
intercourse with her before that date. He continued:
"I do not understand why she left my house. She told me she was going to Nkone. I do not know why. She left the house at night although we are lovers .... I took her half-way to Nkone's place because I was in love with
her and I thought she was with somebody else    
She did not tell me she was going to Nkone's house. I did not ask her because we were happy...."
It was much later under cross-examination that she admitted
categorically -
"That very night I had sexual intercourse with complainant. I said so in my evidence in chief. I explained that I had sexual intercourse with her. She consented to the intercourse."
Appellant called Bolebatswe Bakae as DW2. He corroborated the
evidence of his going to the room of the appellant and seeing the
complainant there; twice but then went on to say under examination by
the appellant -
"You just explained to me that the girl came to you asking for accommodation and that she was
from Khakhea     I do not remember you
telling me of any relationship you had with the girl."
As started earlier it was after reviewing all the evidence in
this case that the trial Magistrate convicted the appellant. In that
process the trial Magistrate directed himself as follows:
"Complainant's evidence is that accused had intercourse with her forcefully (sic!). The doctor's evidence which no doubt is independent, points out that the labia monora (sic!) had a 0.5 cm abrasion wound and that it was hyperemic. This finding in my view is consistent with forced penetration and is therefore consistent and corroborative of complainant's evidence of lack

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of consent."
Now in R v. Baskerville (1916) 2 K.B. 658, Lord Reading, CJ, said that
the evidence in corroboration must be independent testimony which
affects the accused by connecting or tending to connect him with the
crime. In other words it must be evidence which implicates him, that
is, which confirms some material particular not only the evidence that
the crime has been committed but also that the defendant committed
it. Barrington-Jones, J. who heard the appeal in this case in the
High Court had this principle very much in mind, and indeed made
reference to it. However, he then went on to say (at pages 12-13 of
the Record) -
"And whilst I agree with Mr. Motswagole's (appellant's counsel's) contention that the doctor's evidence regarding the physical condition of the complainant's genitalia need not necessarily be seen as being corroborative of the complainant's evidence of lack of consent; nevertheless, I am satisfied on a global view of the evidence, taken with the magistrate's finding that the complainant was a truthful and reliable witness; and noting, as he did, that the complainant left the appellant's quarters immediately after the incident when she had made an immediate report about what had taken place, and was distressed (crying) and had pointed out the appellant; which, as he accurately explained whilst not corroborative, was certainly consistent. And the magistrate having found the appellant's evidence to be both concocted and confused was to justify its rejection; he was, in my view, well and properly justified in finding that the prosecution had proved its case against the appellant beyond all reasonable doubt."
With all due respect to the learned Judge, he correctly arrived
at the conclusion that the doctor's evidence was not corroborative of
the allegation of lack of consent. The trial Magistrate had treated
as corroboration the medical evidence which cearly was not
corroborative of the only ingredient of the offence which was in
dispute, consent or the lack of it and that in law amounted to

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misdirection. The learned trial Judge was however entitled to go
further to consider if he nevertheless had the power to uphold the
judgment and dismiss the appeal.
Having now come to the conclusion that the trial Magistrate
treated as corroboration that which was not corroboration, this Court
ought to allow the appeal unless we can apply the provision of the
Court of Appeal Act, Section 13 (3) which provides as follows:
"Where the Court of Appeal in an appeal against
conviction, considers that, notwithstanding
the fact that it is of the opinion that the
point raised in the appeal might be decided in
favour of the appellant, there has been no substantional
miscarriage of justice it may dismiss the appeal."
I am of the view that this provision is meant to prevent the
miscarriage of justice, and if there is any case in which this
provision is very well applicable it is this appeal before this Court.
I need not re-capitulate the evidence. I have set down copious
excerpts from the evidence of witnesses for the prosecution and for
the appellant.
There is on record ample evidence in corroboration of the evidence of he complainant. First there is independent evidence of the complainant's distressed condition soon after the alleged act given by Nkone, PW2. See R v. Redpath (1962) 46 Cr. App. R. 319. Secondly it is clear that the statement which the appellant gave to the police before the commencement of the proceedings in this case was false. This also provides corroboration of the complainant's evidence. See Creland v. Knowler (1951) 35 Cr. App. R. 48.
In my view the only reasonable conclusion that flows from that evidence and the findings of fact properly made by the trial Magistrate is that the appellant on January 13, 1988, had

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sexual intercourse with the complainant without her consent.
It is therefore clear from all that I have said that I have no alternative than to dismiss the appeal of the appellant, which is hereby dismissed. The conviction recorded against him is affirmed.
The appellant has appealed against the sentence imposed upon him.
He has failed to show that in the circumstances of this case we have
the right to interfere. It is clear therefore that the appeal against
sentence must be dismissed, and is hereby dismissed
GIVEN AT LOBATSE THIS 4th DAY OF JULY, 1989.

I agree
I agree
<-^T. A. AGUDA Judge of Appeal


B. A. DOYLE Judge of Appeal






G.       Bizos
Judge of Appeal