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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF THE REPUBLIC OF BOTSWANA

HELD AT LOBATSE

CVHLB-000148-09

DATE: 04 OCTOBER 2010

In the matter between:

Mothusi Chuma.................................................Appellant

And

The State.........................................................Respondent

Appellant in Person

Ngani G. Attorney for the Respondent

JUDGMENT

DAMBE J.

1. The Appellant was convicted of rape contrary to section 141 as read with section 142 of the Penal Code (Cap 08:01). The particulars of offence were that on or about 29th day of March 2008 at or near T…….. location in Lobatse, the Appellant had unlawful carnal knowledge of L…… M…………. without her consent. A plea of not guilty was entered and the prosecution called six witnesses. The Appellant gave sworn evidence and called two witnesses for the defence.

2. The Appellant was convicted on the 28th July 2009 and sentenced to mandatory minimum term of 10 years imprisonment on the 17th August 2009 after the court a quo made a finding that there were no extenuating circumstances.

3. The Appellant launched an appeal against conviction on the following grounds:

(i) The court a quo should have inquired why the police did not take him before a judicial officer for confession, before reliance was placed on the statement by the accused that - complainant was his girlfriend and he (Appellant) decided to have sex with her in the bush;

(ii) The Learned Magistrate erred in admitting in evidence both the screw driver and the sandals on the basis that they were found on him;

(iii) the Trial Court fell into error by disregarding medical evidence the effect of which would have been to discredit the complainant’s version;

(iv) the Court did not properly apply the cautionary rule despite acknowledging necessity to do so. Had the Court properly applied it, the Magistrate would have found that complainant’s evidence as a suspect witness was not credible.

4. The State’s case was based on the testimony of six witnesses. The first witness was the complainant. Her evidence was that on the 29th September she was in the company of one E……… O………………. on their way to Reharko shops. Appellant got out of the bar and pointed a finger at her. Appellant then asked her what she was up to the previous day. Complainant asked him to explain himself. Appellant did not respond but instead got hold of her hand, pulled her towards a certain spot opposite the shops and took out a screw driver. Appellant dragged her towards easterly direction and on the way he attempted to beat her with an empty beer bottle. Complainant, was however able to avoid the blow. She further stated that Appellant ordered her to walk ahead of him. Once they had reached the grave yard, Appellant ordered her to undress, she refused. Appellant then got a stick, beat up the complainant, who then removed all her clothing. Appellant directed her to lie on the rock but she resisted. Appellant then forcibly laid her on the rock, pulled down her panty and inserted his penis into her vagina and had sexual intercourse with her. Appellant completed the act, dressed up and laid on the rock and fell asleep. Complainant seized that opportunity to escape from the

Appellant taking the Appellant’s screw driver and leaving her sandals at the scene. Complainant ran to her pastor’s resident. Her pastor (PW 3) then notified the police. Under cross-examination the complainant remained consistent on all aspects of her story.

5. Another witness was O………….. M………….. a resident of P…………. who testified to having seen the Appellant on both 28th and 29th March 2008. On the 28th the Appellant called L……….. (Complainant) who then ran away from him. On the 29th the witness in the company of complainant went to buy some chips at the shops. Appellant emerged from the bar and pointed a finger at L………….. He was holding a bottle of beer and a screw driver with a red and white handle. Appellant asked the complainant what kind of a person she was, which question was clearly in reference to her escape the previous day. He then dragged her to some yard. It was at that moment that PW2 lost company of her friend, the complainant.

6. The prosecution also called testimony from the complainant’s pastor – M…………... His testimony was that on the 29th March the complainant came to his residence running without shoes, holding a screw driver, with a red and white handle. PW3 stated that complainant disclosed that she had been raped at the hill. Complainant reported that the screw driver she was holding was used to threaten her. Witness then reported to the police.

7. There was also evidence of PW4, the complainant’s brother. His testimony was that on the 29th March 2008, he met the accused who asked him if she knew a person by the name of L………….. On being asked which L………….. He was referring to, Appellant’s answer was that he was looking for the one schooling at L……… Secondary School. Appellant then gave him a pair of sandals. The brother asked Appellant where the owner was. Appellant did not answer, but said, that was a matter between him and complainant. The flip flops were then given to the complainant by the witness. This piece of evidence was not at all challenged by the Appellant.

8. The investigating officer stated that the appellant response when he was confronted with allegations was that the victim was his girlfriend. He took her to the bush because his other girlfriend was home. The Medical Officer who was called, testified that there was no clinical evidence of penetration.

9. Having dealt with the evidence I now turn to the law. On a charge of rape, the prosecution bears the responsibility of proving beyond reasonable doubt the following ingredients of the offence:

(i) Sexual intercourse took place without consent of the complaint.

(ii) Accused was the one who had sexual intercourse with the complainant.

(iii) Sexual intercourse was unlawful.

See: Tshwene & Another v. The State 1987 BLR at page 95.

10. The Appellant’s first ground of attack as set out above was that before reliance could be placed on his admission, it should have been reduced to writing before a magistrate who was not a member of the Botswana Police Service. By coming up with this challenge, Appellant was in effect suggesting that the procedure prescribed under section 228 (1) of the Criminal Procedure and Evidence Act should have been applied. This procedure is applicable where there is a confession made before a policeman which according to section 228 can only be used as evidence against the maker if it was confirmed and reduced to writing before a Magistrate or justice of peace who is not a member of Botswana Police Service. In the case at hand there was no confession.

11. It has been stated in various judicial authorities that a confession is an unequivocal admission of guilt to a charge.

See Martlouw v. The State [1994] BWCA 4; 1994 BLR 62 (C.A)

12. The Learned Magistrate’s reference in his judgment to the Appellant’s statement to the police is that: - “the accused said the victim was his girlfriend and he took her to the bush because he was afraid of his girlfriend at home” does not in any manner offend against section 228 because it was not confessional. The court a quo quite properly made reference to his admission in its judgment and Appellant complaint in this regard is without merit.

13. The Appellant’s admission that he took the victim to the bush was merely an admission voluntarily made. There were no admissions regarding the rest of the ingredients of the offence.

See also: Mohalenyane v. The State 1984 BLR 291.

14. Another attack on the conviction mounted by the Appellant was that the trial court fell into error in admitting the screw driver and the sandals in evidence as they were found on him. Evidence connecting the Appellant with the screw driver was adduced from PW1 who stated that as he “drove” her in an easterly direction he was in possession of a screw driver. This account was not challenged by the Appellant. The very screw driver was taken by the complainant when she fled from the scene leaving the Appellant asleep. Corroboration to the complainant’s story is borne out by the testimony of PW3 (complainant’s pastor). Complainant came barefoot and crying, carrying a screw driver with a red and black handle.

15. PW4’s testimony is another direct piece of evidence connecting the Appellant with the scene of crime. It was the Appellant himself who on meeting the complainant’s brother enquired from him whether he knew L………….. Appellant, as stated above, gave the brother sandals which were subsequently exhibited in Court during trial. Under cross-examination, no attempt was made to negate the version given by PW4, rather Appellant, seemed to confirm it by asking whether anybody else was present when he handed over the sandals.

16. The Learned Magistrate quite appropriately made findings that when complainant surfaced at PW3’s residence, she was in possession of a screw driver and was barefoot. Respondent’s argument that this ground is without merit can not be allowed to stand.

17. As earlier stated, the Appellant also challenges the conviction on the basis that, had the court attached due weight on the medical evidence, it would have found that complainant was not worthy of believe. The doctor’s evidence already mentioned was that there was no evidence of penetration nor could she find any discharge.

18. There is a well developed body of authority in this jurisdiction, the effect of which is that, to constitute an offence of rape any slightest penetration will suffice even penetration of such a depth that will not injure the hymen will be sufficient to show that the crime has been committed.

See: State v. Motlhatego 1985 BLR 303.

The Appellant submission in this regard is baseless and runs counter to the established authorities.

See: Achibold Criminal Pleadings and Practice (36th ed.) para 2879.

19. The status accorded to expert evidence has been discussed in many cases in this Court. The role of a doctor called as an expert witness is to provide information which is outside the experience and knowledge of Court. The well-known dictum of Lord President Cooper in Davie v. Endiburgh Magistrates 1953 S.C 34 at page 40, is as follows:

“Their [expert witness] duty is to furnish the Judge or jury with necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge or jury to form their own independent judgment hy the application of these criteria to the fact proved in evidence”.

Consistent with this approach, the High court in the case of State v. Modisaotsile held that it did not lie within the competence of a medical doctor to express a conclusive opinion that the victim he examined was raped.

See: State v. Modisaotsile 1993 BLR 102.

As submitted by the Respondent negative findings by the doctor on the issue of penetration does not negate the fact that there was penetration. The court has a duty to look at all items of evidence holistically and assess whether considering the circumstances of the case there has been penetration.

20. From my reading of the prosecution evidence I am left with no doubt in my mind that the Learned Magistrate, finding, that even though the medical evidence was of no use to the Court the complainant was a credible and reliable witness, justifying the conclusion that, intercourse did take.

21. Appellant contended that the cautionary rule was not applied in this case. The cautionary rule that the appellant complains about its application was articulated in the case of Monageng v. The State 1983

BLR 254 at page 266 where Baron J. A held that:

“There are several types of witnesses who, for one reason or another, must be regarded as suspect and whose evidence must be approached with particular caution; among the more common, are the accomplices, the complainant in a sexual case and the person found in possession of stolen property or through whose hands it has passed. In all such cases there is potentially a danger of false incrimination and before a trial court can safely convict on the testimony of such witnesses, it must satisfy itself that the

danger has been exclude but perhaps precisely because of the search for corroboration - trial courts frequently forget that the court must first decide whether the suspect witness is credible”.

See also Tlhowe v. The State 2008 (1) BLR 356 (C.A).

22. It is abundantly clear from the judgment, that the Magistrate was fully alive to the need for applying the cautionary rule and adoption of two stage approaches in the resolution of issues arising therefrom. This is what the Magistrate stated in this connection:

(i) “in dealing with this matter I am alive to the judicial call that in all cases of a sexual nature the complainant is a suspect witness, hence the need to adopt the basic cautionary rule; whether the complainant is a credible and whether there is corroboration evidence to that of the complainant.

(ii) material aspects of the complainant’s evidence were not disputed. Such as the complainant’s assertion that she was threatened with as screw driver, dragged to the hill, forced to remove her clothing and Appellant had sexual intercourse with her”.

Against the back backdrop of this compelling evidence and the complainant conduct after sexual intercourse a positive finding on credibility was irresistible.

23. Once a finding of credibility had been made the Magistrate moved to the next leg of the two stage approach i.e. corroboration is required if the witness requiring corroboration is otherwise credible. As a source of corroborative evidence the Magistrate relied upon testimonies of PW2, PW3 and PW4. PW2 saw the Appellant in possession of a screw driver which the complainant took along when she escaped from the scene. This very witness who had the misfortune of watching the complainant being dragged away on the 29th March and complainant fleeing when the Appellant called her on the 28th March. PW 3 was the person to whom the immediate complainant was made after she escaped. On the condition of the complainant, PW3 said, when she appeared at his resident complainant was barefoot and tearful with a screw driver in her possession. PW4, the brother was given a pair of sandals by the Appellant to give them to the complainant. All the above items of evidence taken as a whole tended to show in a material particular

that the complainant’s story that Appellant had sexual intercourse with her without her consent was true.

24. The Appellant called evidence at the trial. The gist of his evidence was that they were lovers but denied having sexual intercourse with her. Rejection of his evidence in its entirety was proper. It could not have been reasonably possibly true that the two were lovers and complainant was the one that pestered him. Had there been a relationship between the two there would have been no need to drag her to a solitary place with a screw driver in his hand used to instill fear in her. Equally it would not have been necessary for the complainant to flee from Appellant on the 28th. The Appellant’s version was a clear fabrication which had to be rejected. In the circumstances I find that the appeal against convictions is without merit. Appeal against conviction is therefore dismissed, conviction and sentence are confirmed.

DELIVERED IN OPEN COURT AT LOBATSE

ON 4TH DAY OF OCTOBER 2010.

LBATILB I. DAMBB Judge

Appellant in Person

Directorate of Public Prosecution for the Respondent

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