Lunga and Another v Director of Public Prosecutions (CLCGB-004-13) [2013] BWCA 32 (26 February 2013)




IN THE COURT OF
APPEAL OF THE REPUBLIC OF BOTSWANA

HELD AT
GABORORONE

COURT
OF APPEAL CRIMINAL APPLICATION NO. CLCGB-004-13

HIGH
COURT CRIMAL APPEAL NO. CLHFT-000062-11

DATE:
26 FEBRUARY 2013

In the Matter
Between:

MDUDUZI
LUNGA……………………………………………………………………………………..1ST
APPLICANT

LUCKY
MASUKU……………………………………………………………………………………..2ND
APPLICANT

And

DIRECTORATE OF
PUBLIC
PROSECUTIONS…………………………………………..RESPONDENT

Applicants in
Person

Attorney T.K.
Mbulawa for Respondent

RULING

GAONGALELWE JA:

1. The two
applicants have moved this application seeking an order granting them
leave to appeal to the Court of Appeal. Originally
the two were put
to trial and convicted on two counts of robbery. Subsequent to such
conviction and being sentenced each to 10
years imprisonment they
lodged an appeal to the High Court challenging both conviction and
sentence.

2. Their appeal was
dismissed in its entirety. The subsequent application made to the
High Court for leave to appeal suffered the
same fate hence this
application. The determining factor is whether the applicants or any
one of them would have reasonable prospects
of success on appeal in
relation to conviction or sentence.

3. The
uncontroverted evidence is that the complainants in both counts were
attacked by some unknown men on the evening of 6th October
2009 as
they were driving into the residential premises of PW5 who is the
complainant in Count 1. During the struggle that ensued
each of the
complainants was dispossessed of a cell¬phone. Immediately after
taking the cell-phones the two assailants vanished
into darkness.

4. It is in evidence
that the very next day the applicants were in possession of the two
cell-phones. One was found in the possession
of the second applicant
while the other was found at the house of PW2 who testified that it
had been handed to him on the same
day by the first applicant and
another who was subsequently acquitted.

5. At the trial both
applicants denied having committed the offences though admitting had
the cell-phones the very next morning.
The trial court convicted them
on the basis of the doctrine of recent possession together with the
purported identification by
the complainants.

6. On appeal the
High Court held that the evidence of visual identification by the
complainants had no merit as no identification
parade had been
conducted. The court however endorsed the finding that the doctrine
of recent possession was properly invoked.

7. The law is that
possession of recently stolen goods where the person found in
possession of such fails to give a satisfactory
explanation for his
possession may have some probative value.

8. In court the two
claimed to have bought the cell-phones from some persons each on the
morning of the next day. But the police
officer testified that on
their arrest none of them mentioned such to him. It is on such basis
that the doctrine of recent possession
was invoked.

9. There are two
main factors which militate against the explanation of having bought
the cell-phones. The first is that it was
never made to the police
during investigations. The second is that it would be too much of a
coincidence that being friends each
happened to meet some person
selling a cell-phone the next morning following the robbery. Besides
the trial court found the prosecution
witness to be credible.

10. In the
circumstances the findings of the trial court in regard to possession
by both applicants and failure to give a satisfactory
account cannot
be faulted. This means their proposed appeal has no prospects of
success at all.

11. It is to be
noted that the phrase “reasonable prospects of success”
entails the court being satisfied that on the
findings of fact or
conclusions of Law involved, the Court of Appeal may well take a
different view from that arrived at by the
trial court. The raising
of mere fanciful possibilities of success without any basis is not
sufficient. The rest is an objective
one. In this application I
reject the argument that the appeal would have reasonable prospects
of success in regard to conviction
without any hesitation.

12. In regard to
sentence they each submitted that the sentence of 10 years
imprisonment is excessive without addressing the part
of section 292
subsection 2 which talks of “a term of imprisonment of not less
than 10 years”.

13. In arguing the
application, one submitted that he was HIV positive and that being a
foreign national he is not on government
HIV treatment. He raised the
issue as an exceptional extenuating circumstance. He cited the case
of Dlodlo v. State reported in
the 2008(2) BLR page 473. In that case
the Judge held that the fact of a foreigner being HIV positive while
aged only 22 years
may constitute inhuman treatment and on such basis
reduce the sentence of 10 years imprisonment to 5 years.

14. I must hasten to
point out that, the Court of Appeal dealt with a similar case in
Mokoena v. State 2008(1) BLR page 151. At

page 154 the Court
held that, the fact that an offender is an HIV positive person is not
in itself an exceptional extenuating circumstance
entitling the court
to invoke the provisions of section 27(4) of the Penal Code. It was
further held that such a view would defeat
the intention of the
legislature in providing minimum sentences.

15. The other
applicant submitted that he ought not to have been punished in terms
of subsection (2) of section 292 of the Penal
Code as the charge
sheet does not refer to the subsection.

16. But it is clear
that the court invoked the subsection in regard to sentence
principally on the basis that he had acted in company
with his
co-applicant. I must say there is no merit in this argument. As he
had acted in company of his co-applicant there is no
subsection which
provides a penalty less than 10 years.

17. It follows that
in regard to sentence as well the applicants have failed to
demonstrate that the proposed appeal would have
prospects of success.
In the circumstances the application for leave to appeal to the Court
of Appeal is dismissed.

DELIVERED IN OPEN
COURT AT GABORONE

THIS 26™
FEBRUARY 2013

M.S. GAONGALELWE
JUSTICE OF APPEAL





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