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IN THE COURT OF
APPEAL FOR THE REPUBLIC OF

BOTSWANA HELD AT
GABORONE

COURT
OF APPEAL CRIMINAL APPEAL NO. CLCGB-065-12

HIGH
COURT CRIMINAL APPEAL NO. CLHLB-000058-11

DATE:01
FEBRUARY 2013

In the matter
between:

Gaopalelwe
Jacob…………………………………………………..Appellant

And

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

Appellant in
person

Mr Attorney L.
Emang for the Respondent

JUDGMENT

CORAM: FOXCROFT
JA

LESETEDI JA

GAONGALELWE JA

FOXCROFT JA

1. The appellant was
convicted of rape and sentenced to 10 years imprisonment. He appealed
to the High Court on the grounds that
he was not afforded a fair
trial and that the doctor who examined him had not carried out a DNA
test. The appeal failed but an
application for leave to appeal to
this Court had limited success. After citing the obiter remarks of
Moore JA in the matter of
KENNETH

FOKOTSANG VS. THE
STATE, CLCLB-055-11 (unreported), Tafa J granted leave to appeal –

“Only on the
point of whether failure on the part of the magistrate to set out in
the record of proceedings the exact words
he used when explaining to
the accused person, the provisions of section 180 (4) of the Criminal
Procedure and Evidence Act vitiated
the conviction. ”

2. The matter in
this Court to which Tafa J referred is not directly in point. While
Fokotsang’s case, supra, did concern
a complaint by the
appellant that the magistrate had not afforded him the degree of
assistance which he should have given to an
unrepresented accused, it
was not related to the duty of a trial court to explain the purpose
of cross-examination. In passing,
Moore JA referred to the right to a
fair hearing provided by section 10 of the Constitution, and to the
provisions of s. 180 (4)
of the Criminal Procedure and Evidence Act.
The latter sub¬section concerns the duty of the “proper
officer of the Court”
to assist accused persons “at the
close of the evidence for the prosecution”. It seems that this
mention by Moore JA
of s. 180 (4) led to the wording of the granting
of leave to appeal in the present matter. What Tafa J was concerned
with was the
– “failure to reflect on the record the exact
words used by the magistrate in explaining to an accused person the
purpose
of cross-examination” (my emphasis). Record, 46.

This appeal should
not have been concerned with section 180 (4) of the Act, which deals
with a later stage in the trial. The record
before us reflects, in
any event, the exact words used by the magistrate in explaining the
appellant’s rights after the close
of the prosecution case.
(See the Record at pl4, and Annexure ‘A’ at p57).

3. Strictly
speaking, on the wording of the limited granting of leave to appeal
by Tafa J, no proper appeal is before us. However,
even though leave
was not correctly formulated, it is desirable to add a few comments.
The record reflects at p. 28 the following

“Cross
Examination (Purpose fully explained)” after which the
following exchange between the appellant and the complainant
is
recorded:

“Question: Are
you saying I am the one who raped you?

Answer: Yes.

Question: Where?

Answer: Otse,
Setlhana.

Question: When the
police collected (sic) did you show the scene of crime?

Answer: Yes I did. ”

The words “Cross
Examination (Purpose fully explained)” form the basis of the
appellant’s complaint that he did
not have a fair trial. These
are the words which Tafa J meant to refer to in granting leave.

4. There is no
document similar to annexure ‘A’ on record for use before
cross-examination and I am not aware whether
any such pro forma
document is commonly used in the courts of this country. The
appellant in argument before us said that the magistrate
had spoken
to him before he began his cross-examination of the complainant but
spoke so quickly that the interpreter had difficulty
keeping up. He
was not able to understand fully what the magistrate was saying to
him. When asked why he had not objected, he had
no answer. The
cross-examination by the appellant was very short. Despite having
told the police that he had had consensual sexual
intercourse with
the complainant, he made no reference to this in his questioning. He
only asked her whether she was saying he
had raped her, and where
this had occurred. Even the most unsophisticated and uneducated
innocent person would, in my view, have
confronted her with a denial
that he had raped her. In effect, his question suggested either that
someone else had raped her, or
that she had not been raped at all.
The medical evidence was more than sufficient to establish that she
had been raped. He was
later to say in evidence that he had not had
had intercourse with her, but had only admitted consensual
intercourse after being
“intimidated” by the police. When
the police officer investigating the case testified that the
appellant had told him
that he and the complainant had had consensual
sex on the day in question, the appellant chose not to cross-examine
him. Again,
even an unschooled person would have put to the witness
that the admission of consensual intercourse had been the result of
coercion.
Of course, the suggestion that an admission of voluntary
sexual intercourse was the result of police intimidation is
preposterous.
Why would one want to force a defence out of an accused
person?

5. As Kirby J (as he
then was) said in RAMABE v. THE STATE [2002] 1 BLR 523 AT 526 H – 527
A quoting Lewis JA in a Rhodesian case:-

“I want to
repeat what this Court has said on a number of occasions, that when
an accused is unrepresented and when he is
not very well educated,
not the sort of man who is likely to understand clearly all the
intricacies of court procedure, it is very
wrong for a trial court to
hold against such accused mistakes he might make, such as failure to
cross-examine; to hold against
him for instance, the fact that he has
not cross-examined on a particular issue because one would have
expected a skilled lawyer
to have done so. It is the Court’s
duty to assist unrepresented accused of this description in their
defence and not to take
technical points against them because of
mistakes the accused might make in procedure. ”

The learned Judge
added

“These
principles are equally applicable in Botswana. ”

6. There is nothing
on the record to suggest that Senior Magistrate Sibanda did not fully
explain the purpose of cross-examination
to the appellant before he
cross- examined the complainant. Indeed the record reflects at page
13 that the purpose of cross-examination
was fully explained. I have
examined the original hand-written record of the presiding magistrate
where the same words are to be
found in the magistrate’s hand.
This is obviously a very brief summary of what was explained to the
appellant and he indeed
confirmed in argument before us that the
magistrate had spoken at some length to him before he began his
cross-examination of the
complainant. There is no statutory
requirement governing what needs to be said to an accused at this
point in the trial, nor any
provision such as section 180 (4) of the
Criminal Procedure and Evidence Act. Even that sub-section does not
set out the advice
needed to be given to an accused person. A
practice has developed for an address to be given to an accused
person, explaining available
options, cautioning against pitfalls,
and advising of the greater weight usually attached to sworn
evidence. Annexure ‘A’
at page 57 of the record is the
model which was used pro forma by the magistrate in this matter.

7. Our attention was
drawn to the judgment of Chinhengo J in GABAIKANNGWE v. THE STATE
[2010] 2 BLR where the following was stated
541 at p. 545 C-F:-

“At the
hearing I put a few questions to Mrs Jeremia and she conceded that
the appellant did not have a fair trial. In my
view the real question
in this appeal is whether the appellant’s trial was fair as
envisaged by s 10 of the Constitution.
This provision requires,
amongst other things, that a person charged with a criminal offence
should be afforded a fair hearing.
A fair hearing requires that an
unrepresented accused person should be given a full explanation of
his procedural rights. The court
must assist him to put his case
before the court by informing him of his right to put questions to
witnesses, the meaning and purpose
of cross-examination and how it is
carried out. These are important aspects of a fair trial. It is not
enough to let the accused
know of a right and omit to tell him how he
should exercise that right. A judicial officer should not, in my
view, pay lip-service
to the duty he has towards an unrepresented
accused person. The short explanation given to the appellant by the
magistrate before
the complainant gave evidence urging him to listen
carefully, is woefully short of giving the necessary advice and
assistance to
an accused person so that he may present his full case.

I must emphasise
that during a criminal trial it is the duty of a judicial officer to
guide the undefended accused, to inform him
of his procedural
rights-the right to cross-examine, the right to testify, the right to
call witnesses and the right to address
the court. In doing so he
must explain the significance and purpose of the rights.”

In that case,
counsel for the State conceded that the appellant did not have a fair
trial. The magistrate intervened twice during
the appellant’s
attempt to cross- examine, remarking “ask questions”
instead of assisting him to put appropriate
questions. The appellant
gave up and the Court found that there was a “palpable element
of intimidation by the judicial officer
in the conduct of the

proceedings”
which persisted for the rest of the trial. The appellant in that case
refrained from putting questions to anyone
else. Nothing of the kind
occurred in the present matter. What is more, the appellant, in a
document headed “More Grounds
of Appeal in Details” dated
23 May 2011, falsely asserts that the trial magistrate did not
explain to him the importance
and the consequences of cross-
examination. He added :-

“This is why I
was tongue-tied as I had no idea of what was expected from me.”

Not only was this
failure not true, but the claimed consequence of being tongue-tied
was also false. The record shows that he did
cross-examine the
complainant.

8. I am satisfied
that there is no substance in the opportunistic argument of the
appellant that he was prejudiced by not being
properly assisted in
his defence by the trial magistrate. His guilt was overwhelmingly
demonstrated.

While it is
desirable, at least to avoid points like this being taken, for a
magistrate to give sufficient detail of an explanation
given to an
unrepresented accused, I see no reason to doubt the word of the
magistrate in this case. In any event, the appellant
confirmed that a
statement of more than a few words from the magistrate preceded his
cross- examination. As Newman J said in S.
v. NCUBE [2008] 1 BLR, 64
at 68 D-G, an unrepresented accused should be advised before
cross-examining of the need to attempt to cast doubt on the evidence

presented, to attempt to extract support from the witness, and to
discredit the reliability of the witness where appropriate. Newman
J
rightly added that the accused should be warned to put any
conflicting version of his own to the witness. These are, of course,

general common law principles. In that case, there was nothing on
record to show that any assistance had been given. In casu, it
is
recorded by the magistrate that the purpose of cross-examination was
fully explained

.

9. I do not consider
that any irregularity occurred as a result of the failure to detail
the assistance afforded. There should never
be a requirement for a
presiding officer to record the ipsissima verba used in advising an
unrepresented person of his rights.
However, it would be of great
assistance if presiding magistrates or court reporters in the
magistrates’ courts as the case
may be, where there are no
mechanical recording facilities recorded, at least in summary, the
advice given to an unrepresented
accused at the commencement of the
trial or before the commencement of cross-examination.

The record shows, on
the fact of it, that the appellant’s rights were fully
explained to him, and that he did cross- examine
the complainant.
Even if insufficient recorded detail of the explanation had
constituted a technical irregularity, it is trite
law that only a
material irregularity can vitiate a conviction. On a conspectus of
the evidence in this case, any failure adequately
to advise the
appellant would not have affected the outcome. There was no failure
of justice.

10. Accordingly, the
appeal is dismissed and the conviction and sentence confirmed.

DELIVERED IN OPEN
COURT AT GABORONE

THIS 1st DAY OF
FEBRUARY 2013.

J. G. FOXCROFT
JUSTICE OF APPEAL I agree

I.B.K. LESETEDI
JUSTICE OF APPEAL

M. S. GAONGALELWE
JUSTICE OF APPEAL

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