Nare v S (CLHGB-000043-12) [2013] BWHC 31 (19 April 2013)
|
SAFLII |
IN
THE HIGH COURT OF BOTSWANA
HELD AT GABORONE
CLHGB-000043-12
In
the matter between:
ALBERT TSHEPO
NARE………………………………………………………………………………….APPELLANT
and
Appellant
in person
Attorney
T. Mzwinila for the Respondent
J U D G M E N T
SECHELE J.
1.
The Appellant herein was convicted on his own plea of guilt by the
magistrate court sitting at Broadhurst, Gaborone of the offence
of
theft of motor vehicle contrary to section 3 (1) of the Motor Vehicle
Theft Act [09:04] of Laws of Botswana.
2. The particulars of this offence alleged that he stole
a silver “Freelander Station Wagon Landrover” of
registration
numbers and letters B[…], the property of one
Lesole Mmualefe.
3.
The appellant was brought before court for arraignment on 4th
February 2012. The charges were put to him but he was not asked
to plead. He again appeared for another mention and
during the
course of such mention the appellant is recorded as having uttered
the following statement:
“I am suffering while the investigating officer
is enjoying his liberty. They should charge me with an offence
I know.
I never stole a motor vehicle.”
4. Part of the delay that the appellant was complaining
about was in fact occassioned by his false claims to Botswana
citizenship.
An investigation had to be carried out at the
National Registration offices to confirm appellant’s identity
and his claims
were proved to have been false.
5.
On 14th June 2012 the matter was called for yet another
mention. These were again his words:
“I long requested that the charge be changed I
did not steal the car, I borrowed it.”
6. The appellant’s plea was ultimately taken on
12th July 2011 and he was recorded as having pleaded
guilty. The summary of facts was read to him and I will reproduce
below the exchange
between the appellant and the court:
“Court: Facts of case read to accused:
Do you understand the facts are they correct?
Accused : Yes it (sic) is correct.
Court
: You took the car keys of the complainant on the pretext that
you were going to fetch cigarettes from his car?
Accused : That is so. I was drunk. I did not understand
what was hapenning I had taken alcohol myself, of my own free wills
(sic).
Court
: You went to the car and drove off with it?
Accused
: Yes.
Court: You had no right, claim, authority or permission
to so drive with(sic) the car?
Accused: I did not.
Court : You took the car intending to use it for your
own purposes and indeed kept it with you until for (sic) arrested by
the police?
Court : You had no right, claim, authority or permission
to so keep and use the car and thereby deprive the owner?
Accused : Yes I did not.
Court : The car did not belong to you?
Accused : It did not.
Court : Summary of facts contains the essential elements
of the offence charged. Accused freely admits that he had taken
the
complainant’s motor vehicle without having a claim of right
to it and the intent was to permanently deprive the owner of his
motor vehicle. I am satisfied the plea is unequivocal.”
7. The appellant was accordingly convicted of the
offence of theft of motor vehicle contrary to section 3(1) of
the Motor
Vehicle Theft Act. During the course of his plea in
mitigation the appellant yet again stated:
“I did not intend to steal the motor vehicle,
this was my friend’s motor vehicle which I wanted to use for a
few hours but
the complainant reported the matter. I really did
not intend to steal it and I want the court to consider.”
8.
There are basically two issues for me to decide. The first is
whether the appellant’s plea was unequivocal and the
second is
whether the appellant could, post conviction, change his plea.
9. Judicial circular No. 1 of 1975 reported in the
[1984] BLR 256 has given the court the following practice direction:
“If the accused intimates that he wishes to plead
guilty the magistrate should call for a brief summary of the
essential facts, and
being satisfied that the facts are sufficient to
constitute the offence charged, should ask the accused if he agrees
with the summary.
The magistrate should record the accused’s
reply and more particularly anything that the accused says that is
inconsistent
with the plea of guilty.
It should be emphasised that failure to follow the
procedure exactly will not necessarily mean that on appeal or review
the plea
will be set aside, but in each case the High Court will have
to satisfy itself that the plea was unequivocal.”
10.
The lower court’s enquiry fell far too short of the above
practice direction. The enquiry mostly consisted of double barrelled
questions, the answers to which almost always left another portion of
the question unanswered.
The first question, for example was framed thus:
Court: Facts of case read to accused. Do you
understand the facts are they correct?
Accused: Yes it is correct.”
The
above answer does not in my view address the two questions asked.
It is therefore difficult to conclue that the appellant
understood
the facts and let alone confirmed their correctness.
11. The answer to the second question was similarly
loaded with so much equivocation. The appellant raises the
issue of drunkeness
and that he did not understand what was
happening. This brings the mental element of the offence into
question for one cannot
intend to do that which he does not
understand.
12.
The appellant’s earlier statements to the effect that he had
not stolen the motor vehicle but merely borrowed it were
matters that
the lower court should have cleared before entering the appellant’s
purported plea of guilt.
13. In view of the conclusion I have reached on the
first issue in this appeal, the question as to whether the appellant
could,
post conviction, change his plea, has become rather academic.
But for what it is worth, the answer is that he cannot.
After entering a conviction the court is functus officio.
This was the position taken by the court of appeal in Monometsi
Thapelo J. Leshona v. The State 1972(1) BLR 2 (CA) wherein Aguda
CJ (as he then was) stated:
“it is clear, in my view, that as soon as a
judicial officer writes a judgment and convicts an accused person he
has no further function
to perform than to proceed to award
punishment.”
14. In terms of practice the practice direction in
judicial circular No. 1 of 1975 aforesaid, it is incumbent upon a
judicial officer
to satisfy himself that the summary of facts
presented contain sufficient factual material as would constitute the
offence specified
in the charge sheet. If it does not, the court is
at liberty to discharge and acquit the accused as it would do in a
“no
case to answer” scenario. In the instant case the
particulars of offence alleged that the appellant fraudulently and
without
claim of right stole a silver freelander station wagon
landrover of registration number B[…], but the summary of
facts described the vehicle as a landcruiser Discovery, silver in
colour and of registration number B[…]. The motor
vehicle Registration book (annexure B) on the other hand described
the vehicle thus: “vehicle details:
Make: Landrover
Model: Freelander
Body type: Station wagon
Colour : Silver”
15. The question that then arises is this: which vehicle
exactly, is the appellant alleged to have stolen? This lingering
doubt
will necessarily affect, advesly, one of the key ingredients of
the offence of theft namely asportation or the taking of a thing
capable of being stolen. This discrepancy was curable under the
provisions of section 149(1) of the Criminal Procedure and Evidence
Act [Cap 08:02] of Laws of Botswana but even then, such correction
could only be effected before judgment. It cannot be corrected
on appeal.
16. The summary of facts did not, therefore, disclose an
offence.
17. In conclusion I make the following order.
a) The appeal is allowed.
b) The conviction and sentence imposed by the lower
court are set aside.
DELIVERED IN
OPEN COURT AT GABORONE ON THE 19TH DAY OF APRIL 2013.
__________________
B.
SECHELE