MOSOJANE J: The three above-named appellants, ie Philip, Namogang and Gaotlhobogwe, in this matter, were H jointly charged before the Palapye Magistrate's Court with the offence of robbery contrary to s 291 as read with s292(2) of the Penal Code (Cap 08:01) as amended by Act 13 of 1993. The particulars of offence were set out in the following manner:
'The three arrested persons Benjamin Philip, Gobonetsemang Namogang
and Emmanuel Gaotlhobogwe on the 28th day of September 2001 at Bokamoso General Dealer in Palapye in the Central A Administrative District of the Republic of Botswana acting together robbed Onneile Kereemang the sum of P1 240.00 and as (sic) or immediately before the time of such stealing threatened to use violence to Onneile Kereemang by pointing at her with a rifle.'
Although inelegantly drawn nothing arises from the charge so drawn. B
When the charge was put to them they pleaded not guilty to it. The prosecution then called seven witnesses in support of the charge at the close of which each of the appellants gave evidence on oath denying the charge. In addition Philip called two witnesses to support his own case and the magistrate called one witness several days after the close of the defence case. Three days later he convicted all of the accused persons and sentenced C each of them to a term of 10 years' imprisonment. He also ordered, on application by the complainant, compensation limited to the sums found on the appellants at the time of arrest as in his view the appellants were indigent and unlikely to pay anything beyond what was found on them, describing them as 'street vagabonds who lived through proceeds of crime for the most part'. It is not clear who the magistrate's informer was as only D Namogang had a disturbing chain of previous convictions none of which however, was relevant to the present charge or in any way serious. Philip had only one of theft common and Gaotlhobogwe had two for assault common and possession of suspected stolen property. I cannot therefore see that they qualified to be described 'as street vagabonds' who survived on proceeds from crime. I think, with respect, the learned magistrate went E too far in his disapproval of the appellants' conduct if their previous convictions are anything to go by.
The appeal by all the three appellants was against conviction except for Namogang who also appealed against sentence. The sentence imposed on the appellants in this matter is the mandatory minimum about which this F court can do nothing. I will therefore allow this subject to rest forever at this juncture.
The case against the appellants was purely circumstantial as none of the persons who witnessed the robbery could identify any of the appellants as the perpetrator. Moreover none of the appellants was caught with any identifiable property taken in the robbery. The prosecution case, as I see it, rests substantially on the evidence of G Gobotsamang Simonda (the fifth prosecution witness) who, it is common cause, is or was the girlfriend of the second appellant Namogang. Her evidence, however, implicated the second appellant only.
There was no evidence at all suggesting that the third appellant Gaotlhobogwe came anywhere near the commission of the alleged offence. At the hearing of this appeal on 2 April 2003 Mrs Kula who appeared for the H State expressed herself as being unable to support the conviction of Gaotlhobogwe and, with respect, I agreed with her. I there and then quashed the conviction in so far as it affected him and reserved my judgment in respect of the remaining appellants. The appellants' ground of appeal was in sum to the effect that the evidence against them was not of sufficient quality and their
conviction was for that reason unsafe. I will return to examine this ground in due course but first let me state the A facts of the case.
The evidence for the prosecution may be summed up as follows: On 28 September 2001 at roughly 8 pm three men, masked in what was described as 'balaclava' hats slit appropriately for sight and breathing, entered Bokamoso General Dealer Store with one of them holding a gun. They demanded money from the cashier one Onneile Kereemang (the first prosecution witness). The latter was with one Samuel Mokute (the second B prosecution witness). The man holding the gun ordered the first prosecution witness to open the till and hand over the money in it. The first prosecution witness opened the till and the man took all the money except coins. He demanded more money and asked where it was kept. The first prosecution witness said in the store room and they proceeded to the store room. The other robbers stood by when all this was happening and they also C came along to the store room where more money was expected to be found. In the meantime the second prosecution witness had taken hiding in the store room. When they struggled to open the store room door the first prosecution witness managed to slip away after pressing the panic button to call security, thus leaving little option for the robbers but to run away. By the time the security men and the police arrived the robbers had D accordingly disappeared. This was confirmed by one Katholo Kabelo (the fourth prosecution witness) of Security Systems who said that at 8.30 pm an alarm rang from Bokamoso General Dealer and he was instructed to attend to the problem. Upon arrival at the shop he and others followed some three shoe prints believed to be those of the robbers. All the three shoe prints entered a yard in Palapye. Behind the house in that yard the E security men unearthed a gun buried in a shallow hole. Upon inquiry they were told by one of the occupants of the house (a 17 year old Mositi Mokwere who was later to be called by the court) that the shoe prints belonged to the first appellant and his friends. I have to point out that by this time the police had joined the search and this is confirmed by the detective sergeant Dick (the seventh prosecution witness). Together (that is the fourth and F seventh prosecution witnesses and their team) they then followed the shoe prints from that yard up to a shebeen where they found and arrested the first appellant. They seized P200 worth of bank notes from him. As a result of information given by him, in particular that he had been with the other appellants at some point that day, the other appellants were arrested subsequently, the third appellant that same night and the second appellant in the G afternoon of the following day. An amount of P211.50 was seized from the third appellant but no money was found on the second appellant.
According to the sixth prosecution witness (the first appellant's uncle) the gun belonged to his employer one Sesafeleng Sebina and the first appellant knew at all times where the gun was kept at the cattle post, the suggestion being that only he would have removed it from where it was kept. The sixth prosecution witness told H the court that at the time the police were investigating this matter the first appellant came to the cattle post in the company of the police and showed them where he got the gun. This evidence was vehemently denied by the first appellant and it did not receive confirmation from the police evidence.
The other evidence which the court relied upon to convict, particularly the second appellant is the evidence of he A fifth prosecution witness (second appellant's girlfriend). This witness said that at about 7 pm on 28 September 2001 two men came to her residence and called the second appellant who responded by going out to join them. She recognized one of these men as the third appellant who she said was a friend of the second appellant but did not recognize the other man who was with the third appellant. They then left together with the second B appellant but did not disclose where they were going. At about 10 pm the second appellant came back alone and asked her to accompany him to Tamasane to which request she acceded. They took a lift to Tamasane.
At Tamasane the second appellant showed her P240 which he said was his share of the money from Bokamoso C shop in Palapye. He said they had used a gun held by the first appellant to rob the shop. He said that they had shared the money equally, each person getting P240. He then suggested that they proceed to Serule which they did, arriving there early in the morning. They visited some people there who were not known to her. They were not long in Serule before they took a ride back to Palapye. The second appellant, who was gainfully employed, was paying for transport and booze all the way. A short while after their arrival in Palapye they were both arrested D by the Security Systems men and handed over to the police. She was later released but the second appellant was detained in connection with the alleged robbery at Bokamoso General Dealer's shop.
The above, in short, is the evidence the court relied upon to convict the appellants, but to buttress that evidence the court called, as I said, one Mositi Mokwere who resided in the yard where the gun was found buried. She was E called by the court long after the case was closed to clarify a point 'in the interest of justice'. She said that she knew the first appellant as her elder sister Pinkie's boyfriend and that in September 2001 he was staying with them in their yard. She said on 28 September 2001 at around 3 pm, the first appellant brought the third appellant to the yard. She said after a short while they left and did not return until sunset. They left again at around 8 pm. F The first appellant came back alone later. He stopped for a while in front of the house wherein she and Pinkie were sleeping. He told them he was proceeding to an entertainment and left. Just a short while thereafter the witness and Pinkie heard a noise and saw some light outside. Coming out of the house they saw security men who asked them 'whose shoe prints these were.' The witness answered that they belonged to Benjamin and G Emmanuel (the first and third appellants respectively). It is not clear from her evidence where exactly in the yard these shoe prints were spotted; were they in front of the house or behind the house where the gun was found buried? The shoe prints might have a bearing on the case if found where the gun was buried but would have little bearing if they were confined to the front of the house. The witness said that Benjamin carried nothing when he H came to their house but she was not asked if she knew anything about the gun which was allegedly buried behind her house. Surely, if the appellants came to the house and buried the gun that evening then it would be amazing if she failed to see them. She was however not asked.
This was, in short, all the evidence against the appellants.
The appellants flatly denied any involvement in the commission of this offence. They also claimed there was no A association at all among them as they knew not each other. They were not believed and were convicted. From the totality of the evidence it would indeed be amazing if they did not know each other. In that respect I do not think they told the truth. The question, however, is whether they were properly convicted of the offence.
At the hearing of this appeal I asked counsel for the State, Mrs Kula, about the propriety on the part of the B magistrate to call a witness that late and after the close of the defence case. Counsel felt that the learned magistrate acted properly in the interest of justice. After a short adjournment she drew my attention to the case of Mosala v. The State  B.L.R. 212. It was held there that a trial court was entitled to call or recall a witness to give evidence at any stage of the proceedings if such witness's evidence appeared to it essential for the C purpose of arriving at a just decision in the case, except that evidence available ab initio to the prosecutor, the relevance of which did not arise ex impoviso and which remedied a defect in the prosecution case would be inadmissible. That case involved the recalling of a material prosecution witness before the prosecution closed its case. It was held on appeal that the court a quo had committed no wrong in allowing the recall of such witness, D that the evidence was properly before the court and no prejudice had thereby resulted to the appellant. That of course was correct.
A judicial officer has complete discretion under the law whether a witness who has given evidence shall be recalled even after the prosecution has closed its case and a submission of no case to answer has been made by the defence. This right extends to the calling of a witness after the close of the prosecution case if the judicial E officer thinks that the witness can throw material light on the case. And it is also correct as was said in the Mosala case that the Court of Criminal Appeal will not interfere with the exercise of such discretion unless it appears to it that an injustice has thereby resulted. See also R v. McKenna (1956) 40 Cr App R 65, CCA; R v. Wallwork (1958) 42 Cr App R 153, CCA and R v. Joseph (1972) 56 Cr App R 60, CCA cited in the said Mosala F case.
The facts of this case however present different considerations in my view. After the close of the defence case on 27 February 2002 but without inviting the parties to make their final submissions the learned magistrate adjourned the case to 7 March 2002 on which date he would deliver judgment. Before the latter date arrived and on 5 March 2002, the magistrate reassembled the court and then informed both the prosecution and the G accused person that:
'I called you because I would like to subpoena a witness who informed the security man (PW4) that the shoe prints belonged to the accused 1. I feel the witness is vital if I am to fairly decide this matter.'
The prosecutor replied: 'I shall arrange for her subpoena.' H
The case was again adjourned and this witness Mositi Mokwere then gave her evidence on 7 March 2002. Judgment convicting the appellants was then delivered the following day.
The question that arises from these facts is of course, whether the trial magistrate exercised his discretion properly by calling the witness at that
stage of the proceedings after the close of the defence case and the case was up for judgment. Although there A are no definite restrictions as to at what stage of the proceedings a judicial officer may not call a witness who has not been called by either party if in his opinion such witness may throw material light on the case, the general rule of practice, however, is that after the close of the case for the defence a judicial officer may call a witness, proprio motu, only if the defence has set up a case ex improviso. Put differently, a judicial officer may B not call further evidence after the close of the defense case unless some point has arisen from what the defence said which took the prosecution by surprise, when then evidence in rebuttal would be necessary. Evidence cannot, as a rule, be called to remedy a defect in the prosecution case of which the prosecution were or ought to have been aware in the course of trial. See R v. Harris (1928) 20 Cr App R 86; R v. Liddle (1939) 21 Cr App R 3; C R v. Maughan (1934) 24 Cr App R 130; R v. Cleghorn (1967) 51 Cr App R 291, CCA.
It is important to note that this rule is not an absolute one and in special circumstances it has been departed from. See R v. Fregear (1967) 51 Cr App R 280. The special circumstances of that case were that the defence had been urging that the prosecution should call two witnesses. The prosecutor refused to call them. The D defence then called one and only one of them and closed its case. In those circumstances the judge then felt that it was right that he should call the other witness as a witness of the court. On appeal it was held that the course taken by the judge was not open to question as the object of calling the witness was not to supplement the evidence for the prosecution but to ascertain the truth, the court taking the view also that in reality that was a E witness called at the instance of the defence.
The question that remains to be asked now is whether in the present case the defense did set up any case ex improviso or there were special circumstances necessitating a departure from the general rule of practice that a witness may be called by the court after the case for the defence has been closed only if some matter of which the prosecution were unaware has arisen suddenly during the defense case. On the facts as I see them the F necessity to call the witness who was subsequently called by the court in the present case arose quite early when the fourth prosecution gave his evidence. The fourth prosecution witness stated that he was told by none other than the occupants of the yard where they found the gun that one of the shoe prints belonged to the first appellant. This witness also stated that he did not know whether the first appellant was still staying in that yard, it G having been suggested by the prosecution that he used to stay there and might well have been staying there with his girlfriend during September. It was common cause that the occupants of that yard were none other than the first appellant's girlfriend and her sister Mositi Mokwere who was called by the court. In his cross-examination of this witness (the fourth prosecution witness), the first appellant made it clear that he did not accept that he H lived with his girlfriend as was being suggested. He was in effect denying any association with the gun. The doubt, if any, that he was or was not living with his girlfriend therefore arose at that time during the prosecution case. That being so, it is crystal clear to me that the prosecution became aware of the need to close this gap or call additional evidence as soon as the fourth
prosecution witness had finished his evidence, if they had not been aware of it earlier. It was evidence of such a A nature that an alert prosecutor who knew what he was doing would have made it a point that the evidence of at least one of the two sisters one of whom was the first appellant's girlfriend was called. It is certainly not evidence which can be said to have arisen when the defence was making its own case after the close of the prosecution case or ex improviso, nor can I say that there were any special circumstances in this case necessitating the B calling of this evidence by the court at that stage after the trial was concluded. It was not therefore within the magistrate's discretion to call that evidence which was not in rebuttal of any matter raised by the accused in their own defence. Consequently the evidence was inadmissible and it is so treated by this court. It had the effect of remedying a serious defect in the prosecution case at a late stage and was prejudicial to the accused. C
Finally, the other question is whether the court could still have convicted the appellants without the additional evidence. I have carefully examined the remaining evidence and it is impossible, in my view, to say that the magistrate would inevitably have convicted the appellants on it. On this point the facts appear to me very clear. D
Take the first appellant first. Once the additional evidence is removed the only other evidence available and tending to point to him is the one relating to the shoe prints said to have been found at his girlfriend's yard and the allegation that he knew where the gun was kept. However, the evidence regarding the shoe prints given by the fourth prosecution witness was clearly hearsay and inadmissible against him. The evidence concerning the gun E was hardly direct and was too tenuous to found a conviction. It cannot follow from such evidence that the appellant was the only person who would have had access to that gun, who would have buried it where it was found or that it is certainly the gun which was used in the robbery and by him.
The case against the second appellant rested solely on the evidence of his girlfriend, the fifth prosecution F witness. It was her evidence that the second appellant told her that the amount of money he had in his possession (P240) was proceeds from the robbery of 'Bokamoso in Palapye' in which he had participated. According to this witness the second appellant told her that they had shared the spoils equally each person taking P240. This amount however does not tally with the amount allegedly taken by the robbers and stolen at G Bokamoso shop when multiplied by three. It is also difficult to understand that this amount of money was all blown up to the last thebe on drinks and travelling between Palapye and Serule within a few hours. This witness was initially a suspect whom the police believed had inner knowledge of the robbery. Hence she was initially detained by the Police. Her evidence which was challenged by the appellant needed to be approached with H circumspection and required corroboration.
For the reasons stated above, I am unable to say that the magistrate would still have convicted the appellants without the additional evidence called by him. I, therefore, agree with the appellants that their conviction was unsafe.
In the final result the prosecution failed to prove their case beyond a reasonable doubt and the appeal must A succeed. The convictions are set aside and the appellants acquitted.
Appeal allowed and the convictions set