Ngati v Directorate of Public Prosecutions (CLCGB-010-13) [2013] BWCA 42 (26 February 2013)






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 COURT OF
APPEAL OF THE REPUBLIC OF BOTSWANA

HELD AT
GABORORONE

COURT
OF APPEAL CRIMINAL APPLICATION NO. CLCGB-010-13

HIGH
COURT CRIMAL APPEAL NO. CLHLB-0000190-09

DATE:
26 FEBRUARY 2013

In the Matter
Between:

ONNEILE MODESTO
NGATI………………………………………………………..APPLICANT

And

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

Applicant in
Person

Attorney KJ. Nkwe
for the Respondent

RULING

GAONGALELWE JA:

1. Having been
convicted and sentenced in respect of two Counts of Rape, and his
subsequent appeal to the High Court having been
dismissed together
with the application for leave to appeal, applicant had approached
this Court pursuant to section 11 of the
Court of Appeal Act. As was
the case with the earlier appeal to the High Court, the proposed
appeal to the Court of Appeal would
be challenging only conviction on
the two Counts.

2. It is trite law
that in an application of this nature applicant has to satisfy the
court that his appeal would have reasonable
prospects of success.
Since each of the two Counts stands separate and distinct from the
other, I will address the evidence in
respect of each seriatim with a
view to determining whether the appeal would have reasonable
prospects of success.

Count 1

3. The complainant
was a young girl aged 13 years at the time. She was resident at X…..
cattle post. Her evidence was that
in the early hours of the morning
while lying on her blankets, applicant whom she recognised as a
familiar face came and dragged
her away. He throttled her and
threatened to stab her with a knife he was wielding.

4. He dragged her to
a spot beneath a M…… tree where he forcefully had
sexual intercourse with her. There was no consent.

5. The complainant’s
testimony is confirmed by PW2 who had been with the former. She
testified that applicant dragged the complainant
away and that she
followed. Asked why she did not rescue complainant (PW1) she said;

“When he took
(T…………..) PW1, he had a knife and
threatened that if I did anything or said anything
he would kill both
of us.”

PW2 further said, as
she stood about 15 metres away from the two she saw applicant
removing PWl’s clothes and subsequently having
sexual intercourse
with her.

6. As the incident
occurred at the cattle post where there was no regular transport, PW1
was only taken to the police and to Hukuntsi
hospital three days
later. The medical report does indicate that the medical examination
was only carried out after 72 hours from
the time of the incident.

7. In his own
testimony applicant was equivocating between claiming consensual
sexual intercourse and having gone to bed with PW1
but not having
sexual intercourse. But one thing which is clear is that, in cross
examining her he never suggested having slept
with her but without
sexual intercourse.

8. The trial court
accepted the testimony of both PW1 and PW2 as credible. This is one
case where even if the law required the complaint’s
evidence to be
corroborated, here such corroboration was provided in abundance. PW1
who was a credible witness said there was penetration
and the fact
that the medical report was not clear on the point due to the time
lapse does not take anything from PWl’s testimony.

9. In his heads of
argument filed with the court on 11th February 2013 applicant states
that the trial court failed to explain his
rights as regards cross
examination. In arguing the application he could not substantiate on
the issue. That failure to elaborate
was not surprising in view of
what the record reflects at page 26. The trial court made the
following explanation to applicant;

“You are
required to listen carefully as each witness testifies. When every
witness has finished their testimony you will be
given a chance to
ask questions. The questions are meant:-

To, discredit their
evidence, to put your version of events to them, and more importantly
to lay a foundation of your case.”

10. It was further
explained to him that the issues are whether he did have sexual
intercourse with the complainant, whether such
was consensual or not
and whether in the end such sexual intercourse was lawful. I must say
the above explanation was sufficient
for purposes of making him to
appreciate the purpose and import of cross examination. Needless to
say the explanation encompassed
all witnesses in the trial.

On the basis of all
the above factors there are no prospects of success in respect of
this Count.

Count 2

11. In this Count
the offence was committed in 2008 involving a different lady at a
different place. The complainant testified as
PW4. The gist of her
testimony is that as at 2008 she was in love with applicant’s uncle.

12. On the night in
question she had a misunderstanding with the boyfriend. The boyfriend
assaulted her and as a result she proceeded
to the Police Station to
lodge a report.

13. After so
reporting she walked home. The time was after 9.00 pm. While walking
along she realized that there was a man following
her. Looking back
she realised it was applicant whom she knew all along.

14. She asked him
why he was so following her whereupon the applicant pounced upon her
twisted her arm, throttled her at the same
time dragging her towards
his own residence. In his own house he removed the lady’s clothing
and forcefully had sexual intercourse
with her. There was no consent.

15. After satisfying
himself the man feel asleep. The complainant sneaked out and went
home where she immediately reported to one
M…………….
She later reported to the police. PW5 testified that on the same
night she was sleeping
near the complainant’s place. Late at night
she heard the complainant screaming but was afraid of going to where
she was as it
was late at night. In the morning the complainant
reported the ordeal to her. At the time the complainant i.e, PW4 had
visible
injuries on her throat which she said were a result of being
throttled by the applicant.

16. PW6 was the
Police Sergeant to whom the report was made. He arrested applicant
who told him that he had consensual sexual intercourse
with PW4. The
complainant was later medically examined by the doctor.

17. In his evidence
applicant was very evasive, rambling all over and not alluding to the
prosecution testimony at all. However,
under cross examination he
said the sexual intercourse was consensual. Page 71 of the record
reflects that when asked whether the
sexual intercourse was against
the lady’s will he replied thus;

“Yes, she
agreed but on 5th she changed and said I only gave my parents money
and not herself because she did not have parents
there but I had
sexual intercourse with her/’

Despite the above,
in arguing his application he was now saying he did not have sexual
intercourse with PW4 instead he said the
two of them had agreed to
engage in sexual intercourse but that he fell asleep as a result of
his state of drunkenness without
doing anything of that sort.

18. Under this Count
as well the trial court believed the testimony of PW4 together with
that of the relevant witnesses. As for
the applicant the trial court
quite properly rejected his story as an afterthought.

19. Before
concluding it is pertinent to note that in relation to Count 1
applicant’s own witness one K………..
K………..
testified that;

“The accused
took this lady from my place by force and went with her and had
intercourse with her by force and the girl came
crying in the
morning.

20. In the
circumstances he has dismally failed to show that he would have
prospects of success on appeal. His manifest change of
stance clearly
demonstrates that he had no defence to both

counts. The end
result is that the application for leave to appeal is dismissed in
its entirety.

DELIVERED IN OPEN
COURT AT GABORONE

THIS 26™
FEBRUARY 2013

M.S. GAONGALELWE
JUSTICE OF APPEAL





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