Ntau v S (CLCGB-089-12)  BWCA 39 (1 February 2013)
IN THE COURT OF
APPEAL FOR THE REPUBLIC OF
BOTSWANA HELD AT
OF APPEAL CRIMINAL APPEAL NO. CLCGB-089-12
COURT CRIMINAL COMMITTAL NO. CRHLB-000019-11
01 FEBRUARY 2013
In the matter
Mr Attorney L.
Emang for the Respondent
LORD ABERNETHY JA
1. The appellant was
convicted on a single count of robbery contrary to section 291 as
read with section 292 (2) of the Penal Code
(Cap 08:01) of the Laws
of Botswana. He committed the offence acting jointly with another
person who later testified as an accomplice
2. Section 291
defines the offence of robbery. Section 292 (2) provides for
aggravated robbery and punishment thereof and reads
in part –
“(2) If the
offender … is in company with one or more other person or persons
… or uses any other personal violence to
any person, he shall be
sentenced to a term of imprisonment of not less than 10 years. ”
3. The appellant was
tried by a Senior Magistrate of the Kgalagadi District of the
Republic of Botswana and committed to the High
Court for sentencing.
Gaongalelwe J (as he then was) sentenced the appellant to 12 years
4. The facts are
that on the night of 19th April 2011, the appellant and an accomplice
robbed Richard Mampane of P2300-00, a cell
phone, 750ml Tassenberg
wine and two cans of beer, and at or immediately before such robbery
used personal violence against the
said Mampane. The appellant has
appealed to this court arguing that he should have been charged with
assault, and that the procedure
for admitting the evidence of an
accomplice was not followed, and that the Magistrate did not advise
him on the consequences of
failure to cross-examine.
5. On the first
ground of appeal, section 292 (2) provides that if a robber is “in
company with one or more other person or
persons”, or if the
robber “uses any other personal violence” to the person
robbed, that is an aggravation of
robbery and therefore the robbery
is subject to a mandatory minimum sentence of not less than 10 years.
Not only was the appellant
proved guilty, he also said, “I want
to plead guilty because there is nothing I can say”. The court
asked him questions
to check whether he really meant he was guilty
and expressed doubt as to the propriety of pleading guilty. But the
– “we stole the property together”.
Despite this, the Magistrate was not satisfied that it was properly a
plea of guilty
and proceeded to trial. It is now too late to complain
about the offence he pleaded guilty of.
6. In any case, as
indicated earlier, the offence was committed and the manner it was
committed brought it under the purview of
aggravated robbery. The
appellant and his accomplice attacked the complainant and felled him
to the ground and held him down with
his face against the ground
while they searched his pockets. He was unable to shout for help.
That was violence against the complainant.
7. When the
appellant was asked to make his defence, he replied –
nothing I can say because my co-accused has implicated me. Because
PW2 said I was with him. It means I am guilty.
“You do not
want to explain your defence if you have any?”
“I have no
When asked to
address the court at the end of the case, the appellant replied, “I
am guilty. I do not want to say anything.
“You do not
have anything to say about the evidence at this stage?”
8. The appellant was
then convicted. He cannot now be heard to say he was not guilty as
charged. This ground of appeal has no merit.
9. On the procedure
for dealing with the evidence of an accomplice, at page 28 of the
record, the Prosecutor advised the Court –
“PW2 is an
accomplice witness; we pray that he be warned accordingly, in terms
of section 237 of the Criminal Procedure and
Evidence Act. ”
10. The Court then
responded as follows –
Prosecutor has indicated that you are an accomplice in this matter.
When somebody is called as a witness we require the
truth and nothing
more. When you give evidence tell the truth and nothing that favours
you or anybody else. The section that the
prosecutor has used is that
you should not fear anything about your involvement. If you give
evidence satisfactorily and honestly
the prosecutor may recommend to
the Court that you be discharged from whatever prosecution you may be
At any event in
terms of section 238 whatever evidence you give may not be used in
your prosecution. You understand that explanation?
11. There is no
merit in this ground of appeal. In any case, if there is any other
detail that the court did not advert to, no substantial
of justice has occurred. (Section 13 (3) of the Court of Appeal Act).
12. On the ground
that the appellant was not advised on the consequences of failure to
cross-examine witnesses for the State, the
record shows that the
appellant was skilled in cross-examination. His cross-examination of
PW1 filled three pages of pointed questions.
He also cross-examined
PW2, the accomplice witness and others. When the appellant declined
to cross-examine PW5, Sergeant Morubisi,
the court advised him –
me saying if you do not ask questions it may be assumed you agree
with everything he said?”
13. The appellant
confirmed he had been so told but still declined to ask questions. I
am satisfied that there is no merit in this
ground of appeal.
14. In the result:
(a) The appeal is
(b) The conviction
and sentence are confirmed.
DELIVERED IN OPEN
COURT AT GABORONE THIS 1st DAY OF FEBRUARY 2013.
E. W. M. J.
LEGWAILA JUSTICE OF APPEAL
JUSTICE OF APPEAL