IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 26 OF 1999 HIGH COURT CRIMINAL APPEAL NO. 246 OF 1998
In the matter between
TJIRAMANGA MOKGATLENYANE
APPELLANT
Versus
THE STATE
RESPONDENT
Mr. 1. Bahuma for the Appellant Mr. Leinaeng for the State
JUDGMENT
CORAM:
AGUDA J.A.
TEBBUTT ].A. KUMLEBEN J.A.
KUMLEBEN I.A.
The appellant was indicted in the subordinate court on a charge of rape. His
request to have time to obtain legal representation was refused and he was obliged
to conduct his own defence. He pleaded not guilty. It is common cause that
intercourse took place. The only issue was whether it was with consent as the
appellant maintained.
For the State the complainant (PW1), her cousin Catherine (PW2), the person to whom the complainant reported the incident (PW3) and a constable (PW4) gave evidence. The appellant elected to testify on oath. On the evidence adduced the
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Court held that lack of consent had been proved. The appellant was accordingly found guilty and sentenced to 10 years imprisonment and 4 strokes with the cane. On appeal to the High Court the conviction and sentence were upheld. With leave of this court, the case is now before us for further deliberation. Mr. Bahuma appeared for the appellant and Mr. Leinaeng for the
State.
On the night in question the complainant and Catherine were at a shebeen drinking chibuku. The appellant and his friend Sam were also drinking and dancing there. The four conversed and in due course left the shebeen. Sometime during the night the appellant and the complainant had intercourse. At dawn the next morning the complainant came to, or found herself, at the home of PW3. There was soil on her dress and she was not wearing a panty. Her appearance was variously described as "tired", "sleepy" or "unhappy". She told PW3 that she had been raped. She took PW3 to the scene of the alleged rape in some bushes where the panty had remained and was retrieved. PW3 and the constable, PW4, saw what they described as "signs of the struggle." On the advice of PW3 the complainant went to the police station and reported the matter. The appellant on arrest
admitted the intercourse but said it was with consent. The facts thus summarised were either common cause or not in dispute.
According to the complainant, when the two women left the shebeen they were followed by the men. The appellant at some point slapped her face, pocketed her spectacles that had fallen to the ground, dealt her a fist blow on the eye and pulled
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her into the bushes. Catherine ran away saying that she was going to call the police, whilst Sam followed the two of them. The appellant tripped her, removed her panty and had intercourse with her. Sam apparently stood by and witnessed the entire episode.
The appellant, on the other hand, said that at Sam's suggestion they went to that particular shebeen expecting to meet the two women. (Sam had told him that the previous day they, the two women, had asked after him,
the appellant.) There they met the women and bought them drinks. The foursome left together and at some bushes the complainant agreed to have intercourse with him. He then explained in some detail how this took place.
It appears from the judgment that the magistrate appreciated that "the possibility of false incrimination is high in a case of this nature" and considered, rightly in my view, that the complainant's evidence was of a calibre that called for corroboration before it could be said that the offence was satisfactorily proved. However, in pursuing this enquiry on corroboration the magistrate
misdirected himself in numerous respects. I turn to refer to each of them - but not in any special order of cogency.
(i) The complainant was examined by a doctor. The magistrate relied on a form apparently filled in and signed by the doctor as corroborating the allegation that she had received a fist blow. This document was handed in as an exhibit without the doctor being called as a witness
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and without the appellant admitting its contents or consenting to its inclusion in the record. It is doubtful whether what was written in it relating to an injury is supportive of this allegation on the
part of the complainant. That is by the way. Mr. Leinaeng rightly conceded that this was inadmissible evidence and that the magistrate misdirected himself in having any regard to it. I must add that in this document it is recorded that the complainant's "clothing was torn
at the top". The judgment does not expressly mention that this fact was taken into account but as to inherent probability it would have been. Moreover, it is significant that neither the complainant nor any other
witness referred to any torn clothing, arising from the incident or at all. The magistrate took into account that "struggling marks were
observed" by PW3 and the constable. The latter said that there were shoe prints but the nature, extent and area of the marks observed were not canvassed in evidence by any witness. Whether such marks justify the inference that they were caused by a struggle, as opposed to intercourse on the ground or in the bushes, is an inference for the court to derive from objective facts placed before it. These are absent.
Similarly the fact that the complainant at dawn appear to be - as described in evidence - "sleepy", "unhappy"
and "tired" are consistent with a person having had a night of drinking, dancing -perhaps roistering - and are likewise neutral and uncorroborative.
It
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goes without saying that the facts consistent with both versions cannot serve as corroboration.
In the course of his judgment the magistrate said, as a ground for the rejection of the appellant's evidence, that "the accused has not come up with any convincing reason why the complainant would later change her mind and report that he had raped her". It is seldom that an accused in a rape case knows the reason for false implication. Be that as it may, it ought never to be held against him that he is unable to furnish one.
Immediately after his plea the appellant said he would be calling witnesses. One can confidently conclude that Sam was to be one of them. At the close of the State case when he elected to give evidence on oath he again said that he will call one witness. This he repeated at the resumed hearing of the case just before his
evidence commenced. Under cross examination he said in this regard -"Sam is my friend whom we visit each other .... I don't know his second name at present, I don't know where he could be found. But sometime when I was in the prison compound I saw him passing in
front of the prison. But I don't know where he is now staying .... He was originally staying at Kgaphamadi ward next to where I stay".
At the close of his testimony he said "although I intended to call a witness I have now decided not to call any witness." The reason for this somewhat strange change of mind is not known and was not
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investigated. However, the fact remains that Sam was potentially a
vitally important witness who if called would have confirmed one or
either version of what took place. He, as I have said, apparently
witnessed the act. There is no indication that there was any attempt
to trace him nor was it said that he could not be found. The duty of
the prosecution to call a witness depends upon the facts of each case.
The basic test as whether to do so or would satisfy the requirement of
a fair trial. In a case such as this, when the evidence of an eye-witness
would be of critical importance one way or the other, the prosecution
to my mind was remiss in not calling him as a witness. As was said by
Lord Roche in the Privy Council case of SENEVIRATNE v. R
(1936) 3 All E.R. 36:
"Witnesses essential to the unfolding of the narratives on which the prosecution is based, must, of course, be called by the prosecution whether in the result the effect of their testimony is for or against the case for the prosecution "
(In S v Makompo 1987 BLR 494, this dictum was relied upon). As a matter of fact there is no reason why the court could not have called him as witness. This step - commended by this court on appeal - was taken in the decision of Seboni vs. the State [1984] BWCA 12; 1984 BLR 69 at 70.
Another irregularity arises from the fact that in the course of reexamination the court permitted the prosecution to canvass new
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matter (and incidentally to repeat evidence already given) without giving the appellant a further opportunity to cross-examine.
During argument Mr. Bahuma concentrated on what he submitted were contradictions in the evidence of the complainant and Catherine.
I find it unnecessary to discuss whether the submissions in this regard are well-founded. To my mind the more important aspect of the State evidence is that it lacks the detail necessary to have a clear and satisfactory picture of the activities of the dramatis personae during the happenings of that night and to draw the correct conclusion. To name some of the lacunae: to what extent over what period did they, particularly the women, drink liquor that night? When did the
four of them leave the shebeen? From such time were the complainant and the appellant continuously in each other's company (as appears to have been the case)? When did the intercourse or rape take place during that long night? When Catherine, as she says, saw the need to call the police at a time when the appellant was allegedly assaulting the complainant why did she not do so - what did she do instead? I note in passing that according to the judgment the complainant was "extensively cross-examined by the accused". The record does not bear this out.
It is true that the fact that the panties were left behind does on the face of it support the complainant's version, (although the
quantity of liquor consumed by her, or both of them - had this been investigated - may have had a bearing on this.)
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But even attaching full weight to this factor, in the light of other considerations and the irregularities to which I have referred, I am unable to say that "there has been no substantial miscarriage of justice" that would, notwithstanding the irregularities, justify the confirmation of the conviction in terms of section 13 (3) of the Court of Appeal Act (Cap. 04:01).
This conclusion renders it unnecessary to consider whether the refusal of the trial court to allow the Appellant an opportunity to obtain legal representation was in order or not.
The appeal is upheld. The conviction and sentence are set aside.
M. KUMLEBEN JUDGE OF APPEAL
I AGREE:
T.A. AGUDA JUDGE OF APPEAL
I AGREE:
P. H. TEBBUTT JUDGE OF APPEAL
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