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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA

HELD AT LOBATSE

Court of Appeal Criminal Appeal No.CLCLB-047-08

High Court Criminal Appeal No.F204-05

In the matter between:

CHARLES MOSES Appellant

and

THE STATE Respondent

Mr P.A. Kgalemang for the Appellantⁱ

Mr M.P. Phuthego for the Respondentⁱⁱ

JUDGMENT

CORAM: MOORE J.A.

COULSFIELD J.A

FOXCROFT J.A

MOORE J.A.

1. This is an appeal brought by Superintendent of Police Charles Moses against his conviction and sentence upon a charge of rape contrary to Section 141 of the Penal Code (Cap.08:01) as amended by Section 2 of the Penal Code Amendment Act No.5 of 1998 as read with Section 142 of the Penal Code (Cap.08:01) as amended by Section 3(ii) of the Penal Code Amendment Act No.5 of 1998.

2. The Appellant was convicted of the offence as charged by Magistrate M. Taolo at Masunga on the 27^th day of June 2005. Dissatisfied with the decision of the Magistrate, the Appellant appealed to the High Court, but that appeal was dismissed by Makhwade J. on the 19^th of December 2006 when the conviction and sentence imposed by the magistrate were confirmed.

THE EVIDENCE

3. The evidence upon which the magistrate made his justifiable findings of fact is as follows. The Appellant is a superintendent of police. He is the nephew of PW2 Willias Dema Mengwe (hereinafter the Chief) of Maintengwe as Subordinate Tribal Authority - that is Chief of the area. According to the evidence of PW2 Nchidzi Mangisi, hereinafter Nchidzi, is the sister of the Chief and, accordingly, the aunt of the Appellant. At the time of the commission of the offence, PW1 was a 16 year old school girl who was residing with Nchidzi. She is not related by blood to either the Chief or to Nchidzi, but she looked up to the old lady and regarded her as being a relative.

4. On the night of the 6^th October 2004 PW1 was at her home in the bedroom which she shared with the elderly Nchidzi. She was preparing to take a bath when she was called by the Appellant who was in the courtyard of her home. She described him as “our neighbour and relative.” He asked her to get a cup so that he could pour Nchidzi some Chibuku. PW1 brought the cup whereupon the Appellant poured some Chibuku and gave it to Nchidzi who drank it. The Appellant then sought and obtained Nchidzi’s permission for PW1 to go with him to his place to fetch some goods and more Chibuku, which he claimed to have bought for Nchidzi.

5. As events turned out, the invitation to PW1 to his place for the pretended purpose of collecting items which he had bought for Nchidzi was a ruse. The Appellant lured PW1 to his place for the clear purpose of having sexual intercourse with her. Once he had got PW1 to his place, the Appellant resorted to a number of stratagems in furtherance of his design. He locked the door. This immediately caused PW1 to have misgivings. She asked why he had locked the door instead of giving her the goods for Nchidzi. He ordered her to sit down. She did not. He then ordered her to make his bed. She asked why. He thereupon took a stick from under the bed and hit her on the right shoulder. The doctor who subsequently examined PW1 did not find any injury to PW1’s shoulder. This does not necessarily mean that she was not hit with the stick. It is possible that a blow with a stick could cause no visible injury or mark.

6. PW1 must have been alarmed if not terrified. She tried to shout. The Appellant then produced a knife from his trouser pocket which PW1 described and identified in court. He threatened that he would kill her with the knife if she shouted. He uttered these threats while pushing PW1 towards the bed. PW1’s narrative of this stage is best described in her own words:

“As soon as I saw the knife, I stopped shouting. I was still crying though. I made up his bed. I did it because he said so and I was frightened. He spoke with a lot of anger as if he was fighting.”

7. The bed having been made as ordered by him, the Appellant sat upon it holding the open knife contemplating his next move. Evidently sensing that PW1 was unwilling to submit voluntarily, the Appellant resorted to a different tactic, alcohol. He offered her Chibuku. She refused. He put the glass to her mouth. She turned her head aside. He then offered her Amarula. Again she declined. He then threatened to beat her. She was still crying silently. In response to her request that he let her go home as it was getting late he asked her to kiss him. She did not. Then came his opening salvo of indecent assaults. He put his hand under her T-shirt and touched her breasts. He kissed her. She continued crying, telling him she did not like what he was doing. He was undaunted. He just continued and started kissing her breasts.

8. PW1 described her ordeal:

“It was painful. I could feel his teeth on my breast.”

This testimony is supported by the doctor who examined PW1 on the 7^th October 2004 at 1600 hours and observed “bruise on right breast.” It is not necessary to rehearse the detailed account of the events which followed from this point on which PW1 gave in her testimony. Suffice it to say that her evidence was clear, cogent and compelling. Both of the courts below were fully justified in finding that PW1’s evidence was credible and capable of satisfying both magistrate and judge that the Appellant had had sexual intercourse with PW1 without her consent.

RECENT COMPLAINT

9. The Appellant having satisfied his lust by two episodes of non consensual sexual intercourse with PW1, lay on the bed in an obvious state of post-coital lassitude. Seizing her chance of escape, PW1 picked up her clothes, opened the door, and ran away covering her nakedness as she fled towards the home of Nchidzi where she was staying. She estimated that she had been kept a virtual prisoner by the Appellant for about two hours. When she reached home she was still crying. She woke Nchidzi and told her that the Appellant had raped her. She begged Nchidzi to go with her to tell the Chief who would then inform the police. Nchidzi demurred. She gave as her reasons for not reporting the matter at once:

(i) It was late at night (approximately 10:30pm);

2. She was sick;

3. She would see to the matter in the morning.

10. Nchidzi’s reluctance to accompany PW1 to report the matter that night might have arisen out of three further considerations. First she was described as an old woman. Secondly, and more important, the Appellant is her nephew. Thirdly, she told PW1 that the matter would be resolved at home. However, PW1 was determined to report the matter to the authorities.

11. Shortly after PW1 arrived home, the Appellant appeared at Nchidzi’s place trying to find out from her what PW1 had told her. His presence at the home of PW1 so unsettled PW1 that she abandoned any further thought of reporting to the Chief that night because she feared that the Appellant might be lurking in the vicinity outside her home and might do her some harm if she ventured out unaccompanied at that time of night. Early next morning at about 6:00am, she awoke Nchidzi and asked her to accompany her to the Chief to whom she would make her complaint. Nchidzi again tried to deter PW1 from making a complaint by telling her that the matter would be resolved at home. PW1 would not however be deflected from her purpose. She went by herself to report to the Chief. While PW1 was at the Chief’s place Nchidzi also arrived there. Both the Chief and Nchidzi, the uncle and aunt respectively of the Appellant, agreed that PW1 should not report the matter to the school authorities as the matter would be resolved in the evening. As PW1 herself put it, she saw no need to keep quiet.

11. When PW1 got to school, she was still crying. She waited until her friend Wangu Bali arrived at school before unburdening herself to someone in whom she could confide. She told Wangu that she had been raped the previous night. She asked Wangu to tell the teacher. This sixteen year old girl was evidently still in a state of post traumatic stress on the morning following what was for her a horrific and harrowing night. Mr. Tsie the teacher arrived later. Both girls went to see him in the staff room where PW1 explained what had happened to her. Mr. Tsie in turn invited PW1 to relate her complaint to the Deputy Head Mrs. Modipe and the science teacher, Ms. Mokoka. Mrs. Modipe called the police. PW1 then went to the guidance and counselling room where she was able to enjoy the restorative balm of quiet slumber.

11. The investigative processes were quickly underway. Soon, two female police officers arrived at the school. They took PW1 back to her home and to the Appellant’s place. He was not there when they called. The officers escorted PW1 to the Tutume Police Station where she made a statement. The next stage of enquiry took place at the Tutume hospital where PW1 was examined by a doctor who prepared a Medical Examination Report. Back at the Tutume Police Station, PW1 found the Appellant there in the presence of other police officers. PW1 and the investigating officer then went to the Appellant’s place. The Appellant also went back to his home with the police party. In the final sentence of her evidence in chief, PW1 stated her position succinctly and emphatically. She swore:

“I was not in love with the accused. I did not want to have sex with accused when he did.”

DEFENCE CASE

11. The Appellant led from the fore in the case for the defence with contributions from a supporting cast of DW1, 2, and 3. He was a married career Police Superintendent based in Lobatse who was 43 years old. During a visit to his relative Nchidzi, he espied PW1 whom he got to know as Chilalu. On the 5^th October 2004 he proposed to her and she accepted. They would rendezvous at his place on the 6^th. On the 5^th, she had taken him half way to his place. On the 6^th October around 7:00 pm he went to the place of PW1. He told Nchidzi that he was going with PW1 to his place to collect her [PW1’s] things. PW1 had requested that he buy her a cell phone. At his home, he was drinking with PW1. They spent about 10 to 15 minutes talking about just knowing each other as they were not well acquainted. They ended up agreeing to have sex. They had talked without any aggression. PW1 had insisted that he use condoms. He did not have any. So he got two from Stephen who was renting part of his house. He then had sex with PW1 using the condoms. He did not lock PW1 in the room. He did not strike PW1 with a stick, or force her to make his bed, or threaten her with a knife in order to have sex. He did not cause the bruise on PW1’s right breast. He had condom protected sex twice. He did not forcefully remove PW1’s skirt. She was not wearing a skirt that day. She was wearing a tracksuit. He did not tear her skirt as she alleged. PW1 never said she was not consenting. The two acts of sex were consensual. It is not true that she was crying all the time while they had sex.

11. After the act, he did not give her the cell phone. PW1 appeared to accept his explanation, which he gave her before sex, that he would get one from Lobatse where they were cheaper. PW1 appeared to be happy during sex. She did not cry. She never protested during intercourse that she was not consenting. There were homes close to his. After intercourse, PW1’s mood changed. She became worried that she might become pregnant while still at school. He assured her that there was no risk of pregnancy as he had used condoms. PW1 then got into his vehicle and he drove her to Yabuya Bar where he went to buy her drinks. She was fine and not crying until they parted. A cousin of the Appellant, one Mosupi, remonstrated with PW1 wanting to know what she was doing in the Appellant’s vehicle, she being a student. He then dropped PW1 off at her home. When contacted by the police about the allegation of rape, he told them, both in the absence and presence of PW1, that he had had consensual sex with her and that he did not rape her.

THE DOCTOR’S EVIDENCE

11. The evidence of Mpangulnea Kindoki must be viewed against the background of the evidence as a whole, and of the findings of fact properly made in the courts below. In cases of rape where the evidence is that the accused used physical force to overpower his victim, or that there was a struggle between victim and alleged rapist, or that the victim caused injuries to her attacker such as scratches or bites, evidence of a doctor’s examination of the victim and of the alleged suspect is capable of supporting the testimony of the complainant that intercourse took place without her consent. In the case before us, however, the evidence accepted by the courts below is that, having so intimidated PW1 by virtue of his being an adult relative of her guardian or host, by striking her with a stick upon her shoulder, by threatening to kill her with a knife if she shouted, by holding the open knife in his hand as he sat on the bed, and by threatening to beat her, the Appellant had so overborne her will by the time that he commenced the physical act of rape, that the absence of more serious injuries to PW1 is explicable upon the basis that she had been cowed into submission because of the factors just described. These factors also explain why PW1 did not make a “hue and cry”, and why she sobbed quietly as she endured her ordeal.

11. The uninvited and forced acts of foreplay such as kissing her upon her lips, touching her breasts, and kissing her breasts might not necessarily have resulted in visible injury. However, the doctor did observe a bruise on the right breast. The Appellant denied causing that bruise.

11. The doctor also observed bruises on the vulva. The hymen was absent. Vaginal exam admitted two fingers (bit painful). Uterus was normal. No spermatozoa. He concluded that PW1 had had a bath. The doctor’s professional and expert opinion is that the absence of a hymen is not necessarily contradictive of PW1’s evidence that she had had no previous sexual experience because, said he, “it can happen for a person not to have a hymen because it can break during physical exercise or using tampons.” This is how the doctor explained his findings of bruises on the vulva at pages 86-87 of the record:

“The bruises around the vulva usually suggest forced intercourse. This is because ladies have glands that produce lubricating fluid. The bruises can be there even if a condom is used. The bruises were fresh because normally after a week they have to heal. I did not see any blood because she had taken a bath before examination. The vagina admitting two fingers has nothing to do with sexual activity. Even a tampon can cause an enlargement. I signed the report. I wish to tender it as evidence.”

11. Under cross examination, however, the doctor admitted that the vulvar bruises observed on PW1 did not indicate that it was forced intercourse. However, based upon his overall assessment of PW1’s condition, he came to the conclusion that PW1 was forced because of the bruise on the breast. He rejected the suggestion of counsel for the Appellant that the bruise on the breast was consistent with a love bite.

11. The Appellant was dissatisfied with the decision of the High Court. He therefore appealed against the holding of that court dismissing his appeal against conviction and sentence. The record reads:

“3. The Grounds of Appeal.

1. The court a quo erred in law and in fact in holding that the complainant was a credible witness worthy of belief when several factors showed that she was not.

2. The complainant’s evidence was not corroborated and thus the court below erred in not taking cognisance of this issue.

3. The court below erroneously considered the evidence of PW2 to be relevant to the fact at issue when in law such evidence could not provide corroboration on the matter since PW2 was not the person contemplated as the first person seen after the alleged rape.

4. The court a quo did not take into consideration the evidence of other witnesses called by the state and the defence with a view to balance their evidence to find where the truth lie.

5. The court a quo erred in not holding that failure by the state to call a fundamental essential witness and failure to offer such witness to the defence was an error that vitiated the conviction in that it infringes on the notion of the right to a fair hearing.

4. Relief Sought

1. That the judgment of the court below in so far as it relates to the dismissal of the appeal against conviction be set aside and an order be made as follows:

2. That the appeal against conviction be and is hereby upheld and the conviction set aside in toto.”

11. The Appellant’s grounds of appeal were amplified by elaborate Heads of Argument, bolstered by a formidable list of authorities, and finished by a vigorous oral presentation by the typically ardent Mr. Kgalemang. The additional kernels of the Appellant’s complaint as they can be extracted from his diffuse and wide ranging Heads of Argument are:

1. The prosecution failed to prove that the Appellant had sexual intercourse with the complainant without her consent.

2. The complainant did not raise a “hue and cry” at the time of the offence or shout while she was being raped.

3. The court did not apply the cautionary rule properly or at all.

CREDIBILITY

11. The complaint that PW1 was not a credible witness is difficult to comprehend. On the contrary, the record clearly shows that PW1 who was a mere 16 years old when these events took place, was a student of uncommon collectiveness. She was able to relate the events about which she testified with admirable clarity and consistency. It is hardly surprising therefore that her testimony was evaluated by the magistrate in this way at page 5-6 of the record:

“The complainant was cross examined at length by the defence. She was approached from all angles and suggestions made to her of the motives and reasons she had for reporting a rape. The best that can be said of her is that she was equal to the task. She made no concessions, made no recantations and made her responses prompt, unflinching and with loads of conviction. Her denials of the defence counsel’s imputations were never without reason. And I mean good and sound reason. In a manner quite unexpected in a case of this nature, she was non-committal about whether condoms were used citing that she did not know what it was like when condoms were or were not used. If that cannot put her across as an honest witness I do not know what will.”

11. Equally unsurprising was the evaluation of the evidence by Makhwade J and his favourable assessment not only of the magistrate’s account of the manner in which she demeaned herself but also of the inherent plausibility of her testimony and its consistency with other credible evidence.

11. In Tumisang Gakeinyatse v. The State CLCLB-092-08 at page 9 paragraph 15 of the computer generated judgment, I indicated the approach to the assessment of the credibility of witnesses in this way:

“15. The conventional approach to determining the credibility of a witness is by asking whether the trial court, having seen and heard the witness, and having observed the witness’s demeanour, has found the witness believable. But the believability of a witness is not the only criterion. The testimony must also be examined critically to ascertain whether it is accurate and not mistaken. This is because experience has shown that an honest witness may be genuinely mistaken, or may have an imperfect recollection of the events he or she is describing, or may have impaired powers of sensory perception. The inherent quality of the testimony, the extent to which it is supported by other unchallenged evidence or undisputed facts, or by the testimony of other witnesses, particularly of witnesses called by the other side, all play a critical role in establishing the credibility of a witness by reference to objective criteria or measurable aspects of the evidence.”

11. The credibility of PW1 was rigorously tested by counsel for the defence. The magistrate examined it closely and critically. Makhwade J applied his judicial experience together with the relevant principles of law to the material before him upon the record. The credibility of PW1 maintained its integrity and worth under keen scrutiny. It remains untarnished and unshaken.

FAILURE TO CALL WITNESS

11. In Archbold Criminal Pleading Evidence and Practice 2008, the applicable rule in England and Wales is set out at page 486 paragraph 4-274:

“the question of who should be called to give evidence for the prosecution is for prosecuting counsel to resolve. Where counsel is reluctant to call a witness, it is wrong for the trial judge to insist on the witness being called by the prosecution: R. v. Baldwin, The Times, Ma3, 1978 CA; R. v. Grafton, 96 CR.App.R.156, CA, post § 4-345. See also post, § 4-276.”

27. I would hold that that rule is also applicable to Botswana. In State v. Makompo [1987] BLR 494, Barrington-Jones Ag. C.J. sitting in the High Court at Lobatse referred with approval to the Privy Council cases of Adel Muhammed El Dabbah v. Attorney General for Palestine [1944] A.C. 156; P.C. and Seneviratue v. R [1936] 3 All E.R. 36, P.C.

28. In Seneviratue supra Lord Roche articulated the relevant principle thus at pages 48-49:

“It is said that the state of things above described (the admission of hearsay evidence of questionable probative value) arose because of a supposed obligation on the prosecution to call every available witness on the principle laid down in such a case as Ram Ranjan Roy v/. R. (7) to the effect that all available eye-witnesses should be called by the prosecution even though, as in the case cited, their names were on the list of defence witnesses. Their Lordships do not desire to lay down any rules to fetter discretion on a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative 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.”

29. The unfolding narrative upon which the prosecution for rape was based was the narrative of the events which took place in the Appellant’s place. There were of course no eye-witnesses to those events other than PW1. The recent complaint by PW1 about which Nchidzi could possibly have testified cannot be described as forming part of the unfolding narrative grounding the prosecution. Nor was it the central issue joined between the State and the Appellant.

30. In Adel Muhammed EL Dabbah v. Attorney General of Palestine [1944] 2 All ER 139, speaking on page 144 about a practice of tendering prosecution witnesses for cross-examination by the defence, Lord Thankerton declared that:

“…their Lordships doubt whether the rule of practice as expressed by the Court of Criminal Appeal sufficiently recognises that the prosecutor has a discretion as to what witnesses should be called for the prosecution, and the court will not interfere with the exercise of that discretion, unless, perhaps, it can be shown that the prosecutor has been influenced by some oblique motive; no such suggestion is made in the present case.”

31. It is apposite to note that it has not been shown that the prosecution in the case before us has been influenced by some oblique motive.

At page 144 F Lord Thankerton added:

“It is consistent with the discretion of counsel for the prosecutor, which is thus recognised, that it would be a general practice of prosecuting counsel, if they find no sufficient reason to the contrary, to tender such witnesses for cross examination by the defence; and this practice has probably become even more general in recent years, and rightly so - but it remains a matter for the discretion of the prosecutor. ARCHBOLD ON CRIMINAL LAW, 31^st Edn., contains a list of a series of decisions, but in none of these had the court superseded the prosecutor’s discretion.”

32. It is to be observed that Lords Hewart and Thankerton made reference to material witnesses. It is therefore doubtful whether their dicta applied to witnesses who are not material witnesses.

33. The South African Law on this subject is succinctly set out at pages 136-137 of the South African Law of Evidence by DT Zeffertt, AP Paizes and A St Q Skeen 2003:

“A party’s omission to call witnesses who could give material evidence does not necessarily justify the same inferences as may be drawn from his or her own failure to testify. R. v. Bezuidenhout 1954 (3) SA 188 (A); S. v. Kelly 1980 (3) SA 301 (A). For one thing, a party is always able to give evidence, but nothing can be inferred from failure to call other witnesses unless they are shown to have been available. Elgin Fireclays Ltd v Webb 1947 (4) SA 744 A at 750; R. v. Phiri 1958 (3) SA 161 (A) at 165 Failure, however, to produce a witness who is available and who is clearly able to give relevant evidence may lead to an adverse inference. Gleneagles Farm Dairy v. Schoombee 1949 (1) SA 830 (A); SOS Kinderdorf International v. Effie Lentin Architects 1993 (2) SA 481 (Nm) at 489 I-J; S. v. Ngxumza and Another 2001 (1) SACR 408 (Tk). In addition, a party might reasonably be expected to vouch for his or her own credibility, but not for that of others. He or she may have omitted to call the witness because he or she thought the witness biased, hostile or untruthful rather than because he or she was afraid that the witness would give true but adverse evidence. Webranchek v. LK Jacobs & Co Ltd 1948 (4) SA 671 (A). He or she may have thought his or her case already sufficiently proved by other witnesses. Rand Cold Storage and Supply Co Ltd v. Alligiances 1968 (2) SA 1232 (T). The inference which can be drawn from failure to call a witness will therefore depend very much upon the circumstances of the case. Webranchek v. LK Jacobs & Co Ltd above; Munster Estates (Pty) Ltd v. Killarney Hills (Pty) Ltd 1979 (1) SA 621 (A) at 624.

Applying those principles to the case before us, it is clear on the evidence that:

1. Nchidzi could not give material evidence to the central issue which was whether the sexual intercourse between the Appellant and PW1 was or was not consensual.

2. But even if Nchidzi were to be regarded as a material witness, the prosecution’s failure to call her could be justified on the following grounds:

   1. Nchidzi could not give relevant evidence on the central issue;

   2. The prosecution could not reasonably be expected to vouch for the credibility of Nchidzi because she was the aunt of the Appellant, because she was reluctant to assist PW1 to report the matter, and because she had sought to persuade PW1 that the matter be resolved within the family;

   3. The prosecution had good reason to believe that Nchidzi might be biased in favour of her nephew the Appellant;

   4. The prosecution thought, rightly, that its case could be sufficiently proved by other witnesses;

(iii) In the circumstances of this case, no inference adverse to the prosecution could properly be drawn from its failure to call Nchidzi as its witness.

34. The expression “material witness” has been defined in the Seventh Edition of Black’s Law Dictionary as:

“a witness who can testify about matters having some logical connection with the consequential facts, especially if few others, if any, know about these matters.”

At page 487 of Archbold, it is stated that:

“The prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, they regard the witnesses’ evidence as unworthy of belief.”

Primary fact is described in the Seventh Edition of Black’s Law Dictionary as:

“A fact that can be established by direct testimony and from which inferences are made leading to ultimate facts.”

The same dictionary defines an ultimate fact as a fact essential to the claim or the defence.

35. The prosecutor’s decision not to call Nchidzi as a witness on its behalf must be looked at against the background of PW1’s evidence. Nchidzi had on more than one occasion suggested that the matter should be resolved at home and without the intervention of the authorities. Though the Chief also suggested that the matter should be resolved within the family and that PW1 should not report the matter to her teachers, he would have found himself bound as Chief and as an authority figure within the community to cooperate with the prosecution and give the oral testimony which he did about PW1’s complaint to him. The only evidence which Nchidzi was capable of giving was evidence of recent complaint which is not one of the ingredients of the offence of rape. She could therefore give no evidence of primary facts relating to the central issue of that offence.

36. It is clear on the authorities that a defendant is free to call upon the prosecution to make a witness available or alternatively, to call that witness to testify on his behalf. There is no evidence that Nchidzi was being kept away improperly by the prosecution. Moreover, Nchidzi was the aunt of the Appellant; he knew her whereabouts and he would have had no difficulty in locating her so that suitable arrangements could have been made to have her testify on his behalf.

RECENT COMPLAINT

37. Mr Kgalemang argued that the complaint made by PW1 was not recent because it was not made at the Chief’s house which was the nearest place to the Appellant’s home where sexual intercourse took place. PW1 testified that after she managed to escape from the Appellant’s home, she went straight to Nchidzi’s. That would appear to me to be the most normal thing for a girl in the predicament in which PW1 found herself to do. Nchidzi was her host and de facto guardian. Nchidzi’s place was her home. Nchidzi was of the same gender as PW1 and would have been in the best position to hear her complaint and to offer her guidance about dealing with a novel and painful situation.

38. The Chief’s place is about 200 meters from where PW1 lived. This is an insignificant distance. Furthermore PW1 reasoned, correctly in my view, that it was more prudent to make her initial report to her guardian and then have her guardian accompany her to the Chief where she would make a report to a person in authority. The Law on this question is clearly set out in Archbold Criminal Pleading Evidence & Practice 1997 at page 1027 paragraph 8-105 which reads:

“To be admissible, the complaint must be made on the first opportunity which reasonably offers itself after the offence (Lillyman and Osborne, ante) and whether this had been done is a matter for the court before which the complaint is offered in evidence to decide: R. v. Ingrey (1900) 64 J.P. 106; R. v. Lee, 7 Cr.App.R.31.CCA; and R. v. Cummings [1948] 1 All E.R. 551, CCA. If a considerable time has elapsed between the commission of the offence charged and the complaint, it is inadmissible. R. v. Rush (1896) 60 J.P. 777 (a day, and the complaint was elicited by questions put by the girl’s mother). See also R. V. Christie [1914] A.C. 545 at 556, H.L. But the complaint need not be on the very earliest opportunity: R. v. Kiddle (1898) 19 Cox 77; R. v. Hedges, 3 Cr.App.R. 262, CCA (complaint made week after event admitted).”

39. Seremilwe v. The State [2005] 2 BLR 223 at page 225 F Korsah JA declared the law of Botswana in these terms:

“As has often been stated, in offences of sexual nature, the complainant must first be found to be a credible witness otherwise the case against the accused cannot proceed further. One of the tests usually applied in assessing the credibility of a victim is whether the complaint had been made without undue delay but at the earliest opportunity which, under all the circumstances, could reasonably be expected, to the first person to whom the complainant could reasonably be expected to make it. See Hoffmann and Zeffertt The South African Law of Evidence (4^th ed) pp 119-120 and R V P 1967 (2) SA 497 (R).

In this the complainant made a prompt report of her ordeal to her aunt immediately upon reaching home. The aunt testified that the complainant was in a state of distress and she was crying. This is admissible evidence to show consistency in the complainant’s evidence and the absence of consent. The trial court rightly found that the complainant was a credible witness.”

40. The courts below were amply justified in holding that PW1 made her complaint at the first opportunity which reasonably offered itself. There is no merit in this ground of appeal which accordingly fails.

CORROBORATION

41. The facts of the instant case bear close resemblance to those of Mmolotsi Tlhowe v. The State, Court of Appeal Criminal Application NO.CLCLB-020-08 where the only issue was whether or not the sexual intercourse which did take place was with the consent of the complainant or whether it was procured by duress exerted on the complainant by the Appellant. The Appellant in this case has submitted that:

“The rule of practice in this country is that in rape cases the trial judicial officer must direct himself that it is unsafe to convict an accused person without corroboration which must be extraneous to the evidence of the complainant and which tends to show that the offence was committed and done by the accused.”

Counsel charged that in this case, no corroboration regarding the absence of consent had been led. He submitted that the absence of corroboration was fatal to the State‘s case and that the proper verdict was one of Not Guilty.

42. Counsel for the State’s response was two pronged. First he relied upon the clear provisions of Section 239 of the Criminal Procedure and Evidence Act (Cap.08:02) which are so lucid that it is difficult to miscomprehend their meaning:

“239. It shall be lawful for the court by which any person prosecuted for any offence is tried, to convict such person of any offence alleged against him in the indictment or summons on the single evidence of any competent and credible witness:

Provided that it shall not be competent for any court-

1. to convict any person of perjury on the evidence of any one witness unless, in addition to and independent of the testimony of such witness, some other competent and credible evidence as to the guilt of such person is given to such court, or

2. to convict any person of treason except upon the evidence of two witnesses where one overt act is charged in the indictment, or, where two or more such overt acts are so charged, upon the evidence of one witness to each overt act.”

SUFFICIENCY OF EVIDENCE

43. The caption above section 239 broadcasts the subject matter of the sections under the rubric G. The side note to section 239 gives more than a broad hint about its meaning. It reads “sufficiency of one witness in criminal cases, except perjury and treason.” Excepting Proviso (i) which deals with perjury, and proviso (ii) which deals with treason, and stripped down to its component parts, Section 239 reads:

1. It shall be lawful for the court by which

2. Any person prosecuted;

3. For any offence;

4. Is tried;

5. To convict such person;

6. Of any offence alleged against him;

7. In the indictment;

8. Or summons;

9. On the single evidence;

10. Of any competent and credible witness.

44. Although the section does not say so in so many words, it has interred the ancient rule requiring a plurality of witnesses in ALL cases to which it applies and abolishes the need, with which prosecutors of sexual offences have been burdened for centuries, to lead evidence which corroborates that of the complainant. In Mmolotsi Tlhowe at page 11 of the computer generated judgment, Twum JA expressed the meaning of section 239 in terse but powerful terms:

“…the general rule may be stated that in this country a court may convict on the uncorroborated evidence of one witness except in the cases of perjury and treason.”

THE CAUTIONARY RULE

45. Having traced the history of the cautionary rule to its English origin, Twum JA observed at page 13:

“Both the English rule and our statutory rule do not invalidate a conviction based on the uncorroborated evidence of one competent and reliable witness.”

46. But as Twum JA was to make clear at page 13, the cautionary rule still survives the passing of the corroboration era. He said:

“In my view, where credibility of a witness is established, the correct application of the cautionary warning thereafter should be enough for conviction.”

47. In considering the appeal before him, Makhwade J was satisfied, as am I, that there was corroboration of the evidence of PW1. He was also in no doubt, nor am I, that the magistrate correctly applied the cautionary rule.

CONCLUSION

48. The evidence in this case was compelling. The proof of the Appellant’s guilt was well beyond reasonable doubt. This was an egregious and shocking abuse of a 16 year old girl by a man who was old enough to be her father. Moreover, his conduct was aggravatingly bad because of the prominent position he held in the community. His elaborate appeal is singularly lacking in substance and merit. It fails upon all points which it raised.

ORDER:

49. It is the order of this Court:

1. That the appeal be dismissed.

2. That the conviction and sentence be and are hereby affirmed.

DELIVERED IN OPEN COURT AT LOBATSE THIS 28^th DAY OF JANUARY 2009

…………………………………..

S. A. MOORE

JUDGE OF APPEAL

I agree: …………………………………

LORD COULSFIELD

JUDGE OF APPEAL

I agree: ………………………………..

J. G . FOXCROFT

JUDGE OF APPEAL

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