The appellant, a man of 27 years of age, was charged with a single count of Defilement of Girls under 16 years of age contrary to s 147(1) of the Penal Code (Cap 08:01) , as amended. He pleaded not guilty to the charge, but was convicted, and, it having been ascertained that he was HIV negative, was sentenced on 17 September 1999 G to the minimum custodial period of 10 years' imprisonment, to which the principal magistrate added three strokes of the cane.
The particulars of offence, upon which the State rested its case, were that:
'The accused person on an unknown date during the month of December 1998 at or near Takatokwane Village in the H Kweneng Administrative District unlawfully had carnal knowledge of Magdaline Modisaotsile, a girl under the age of 16 years.'
Attorneys Omotoye and Company on 27 September 1999 filed what purported to be a notice of appeal stating the appellant's intention to appeal against his conviction and his sentence, and A that substantive grounds of appeal would be filed upon receipt of the record, which had been requested. This did not satisfy the requirements of Order 60 rule 1 of the Rules of the High Court (Cap 04:02) (Sub Leg), which firstly states that Form H1 of the Third Schedule of the Rules shall be used, and secondly (and more importantly) requires that the grounds upon which the appeal is based are to be clearly stated. It is true that it is often difficult B for attorneys to draw comprehensive grounds of appeal before the typed record is available, but at the very least reasonable holding grounds, based upon the client's instructions and perusal of the handwritten record are to be lodged, with the rider that leave may be sought to expand these grounds upon receipt of the typed record.
The matter came before Dow J in this state on 20 March 2002 and was adjourned by her to enable the appellant C to prepare the grounds of appeal.
On 9 April 2002 Omotoye & Co filed such grounds, but these were restricted only to the question of sentence. They made no reference to the corporal punishment, and complained only about the length of the term of imprisonment, stating that 'the magistrate failed to exercise a judicial discretion by sentencing the accused to a maximum jail term of 10 years'. D
This was wrong, the grounds continued, on account of 'the apparent youth' of the accused person, he being 27 years old.
I must say that the quality of legal representation afforded to the appellant in this case has been abysmal. On the grounds advanced there was no possibility of the appellant prevailing, and the appeal would fall to be dismissed out of hand. This is so because (apart from the strokes) the sentence imposed was the minimum allowed by law, E and not the maximumas stated by his attorneys.
The attorneys said nothing whatever on the issue of conviction. Leaving this apart, there remain some disturbing features of the case, which raise a doubt as to whether it is safe for the court to confirm the conviction and sentence, as it called upon to do by s 325(a) of the Criminal Procedure and Evidence Act (Cap 08:02) . It appears from the record that although the appellant was unrepresented, the consequences of failing to F cross-examine the state witnesses were not explained to him, nor was the statutory defence under s 14(5) of the Penal Code explained to him. Further, although the appellant was charged with commission of the offence in December 1998, the prosecutor led evidence relating to the commission of further offences during a two year period prior to that. G
State counsel requested a postponement to consider these issues and this was granted. At the resumed hearing Mrs Abram for the State conceded that these three matters each constituted misdirections by the magistrate, and that prejudice had been caused to the appellant thereby. In the circumstances it was not safe for the court to confirm the conviction. Mr Assey was content to adopt the position of Mrs Abram. H
I agree that the conviction must be set aside, and these are my reasons:
The present case arose when it was discovered that the complainant, Magdeline Modisaotsile, then approaching her 16th year, was found to be pregnant in June 1999. The police were thus able to deduce that six months earlier, that is, in December 1998 a person had had unlawful carnal knowledge of her. Their investigations led them to the appellant who failed to deny responsibility when, in his presence, the complainant told the police that it was the appellant who made her A pregnant. That was the sum total of the evidence that the appellant had had carnal knowledge of the complainant 'on an unknown date during December 1998'. When the complainant testified in court to like effect, the appellant did not demur. It can therefore be accepted that the appellant slept with the complainant at that time. It can also be accepted, since her passport was produced, that she was between 15 and 16 years old at the time. B
Unfortunately the State was not content to leave its evidence at that. Further evidence was led from the complainant and her mother relating to a period of two years preceding the December date in respect of which the appellant was charged. Her mother stated that in November 1997 she caught the complainant returning home at 2 am and, when taxed, the complainant admitted that she had on a previous occasion, but not that C night, had sexual intercourse with the appellant. This was hearsay and prime facie prejudicial. The matter was reported to the local police and to appellant's parents, but nothing further appears to have been done. She also testified to a second incident when, in October, the complainant went missing, and upon pursuing her with a switch, her mother found her standing under a tree with the appellant in the moonlight. She set about the couple D with the switch, took the complainant home, and there beat her again, and as she said 'even attempted to hang her with a riem'. This time she added a further damaging piece of hearsay evidence, namely that the complainant told her that each time the appellant collected her he terrorized her first before pulling her to his place for sexual intercourse. E
The complainant too was led in evidence on her previous relationship with the appellant. They had, she said, been lovers since January 1997 when she was 13. They had had sexual intercourse once in 1997, and many times in 1998, always by agreement, although her mother disapproved of their relationshipand had beaten her. The appellant was the man who had made her pregnant. F
The appellant put no questions to the complainant, and her evidence as to her age and their relationshipthus stands uncontradicted.
Upon having his elections explained to him in the usual way, the appellant chose not to give evidence, and remained silent.
The appellant was unrepresented at his trial, and in those circumstances it was incumbent upon the magistrate to fully explain to him his rights, and also legal pitfalls of which he might not be aware, including the G consequences of failure to cross-examine witnesses. See S v. Mujimhodyo 1973 RLR 76 at p80 where Lewis JA put it thus:
'I want to repeat what this Court has said on a number of occasions, that when an accused is unrepresented and when he is not very well educated, not the sort of man who is likely to understand clearly all the intricacies of court procedure, it is H very wrong for a trial court to hold against such an accused mistakes he might make, such as failure to cross-examine; to hold against him for instance, the fact that he has not cross-examined on a particular issue because one would have expected a skilled lawyer to have done so. It is the Court's duty to assist unrepresented accused of this description in their defence and not to take technical points against them because of mistakes the accused might make in A procedure.'
These principles are equally applicable in Botswana. It was also incumbent upon the magistrate in a case such as this one to explain the statutory defence available, which an unrepresented person would be unlikely to know. The specific case of the statutory defence to a charge of defilement was dealt with by the Court of Appeal in B Gare v. The State  1 B.L.R. 143, CA.
Subsection 147(5) of the Penal Code provides that:
'It shall be a sufficient defence to any charge under this section if it appears to the court before whom the charge is brought that the person so charged had reasonable cause to believe and did in fact believe that the person was of or above the age C of 16 years or was such charged person's spouse.'
The Court of Appeal held that the onus of raising this defence is upon the accused person, and indeed thus must be so, since it is only he who can say that he in fact believed the complainant to be of or above the age of 16. It further held, on the facts of that case: D
(a) that there was a duty upon the magistrate to explain to the accused the nature of the statutory defence; and
(b) that his failure to do so had caused the accused not to have a fair trial, and thus a failure of justice had occurred. E
In that case the accused had shown remarkable ineptitude in his defence and had cross-examined solely on the non-issue of consent, and not upon the issue of the age of the complainant. In Gare's case the Court of Appeal further made reference to and confirmed the duty of a magistrate to explain to an unrepresented accused person any onus cast upon him by statutory provisions relating to the offence charged. F
It does not appear from the record of proceedings that the magistrate either explained to the appellant in this case the special defence available to him, or explained the consequences of failure to cross-examine state witnesses.
It is thus necessary to examine whether these lapses, and the admission into evidence of the prejudicial material G concerning his past conduct, were sufficient to cause a failure of justice.
As to failure to cross-examine, there can be no prejudice with regard to the fact of sexual intercourse in December 1998, since the appellant was consistent in admitting that this took place. In failing to rebut the evidence of previous acts of defilement the appellant also did not in my judgment prejudice himself, because the H failure to challenge it does not render admissible evidence which is by law inadmissible. However, in failing to put to state witnesses his belief, if indeed that was his belief, that in December 1998 the complainant was of or above the age of 16 years, the appellant may well have prejudiced himself. This is a probable consequence of the failure of the magistrate to explain to him the statutory defence, the onus attached to it, and the proper means of discharging that onus. I shall return to this aspect later. A
Coming now to the evidence of previous acts of defilement, there are no doubt instances where similar fact evidence of this nature is admissible because its peculiar relevance to the charge outweighs the prejudice to the accused caused by revealing his criminal past.
See Makin v. Attorney-General for New South Wales  AC 57 PC at p 65, where Lord Herschell set out the B rule as follows:
'It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered in the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the C other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it bears upon the question of whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence that would otherwise be open to the accused.' D
See also DPP v. Boardman  3 All E.R. 887 HL and Kgakgamatso v. The State  1 B.L.R. 94.
The impermissible line of logic to be extracted from Makin's case is that 'Because the accused stole before, therefore he stole this time.' Applied to the present case, it would be impermissible to lead such evidence to show that because the appellant slept with complainant before, therefore he slept with her this time. It would E similarly be illogical and impermissible to lead evidence for the purpose of showing that when he slept with her before he knew or must have known that she was under 16 years old (because she was then 13 years old) in order to prove that when the appellant slept with the complainant in December 1998 two years later he knew or must have known that she was under 16 years old. F
Now if the prejudicial evidence was not led for either of the above purposes, what could its purpose have been, other than to paint the appellant in a bad light? Assuming for the moment that it was led to rebut the statutory defence of actual and reasonable belief that the complainant was at the time 16 years old or over, then it would have been necessary to show that the appellant during such previous acts knew or was admonished as to the G actual age of the complainant. Only then would he be deemed to know, by simple arithmetic, the actual age, of the complainant in later years. That was not the evidence. Although the complainant told the court what her age was at the time, she did not testify to informing the appellant of her age on any occasion. Her mother too testified that the complainant was 'immature and young to make sound decisions about sex', but she at no stage said H that she told the appellant the complainant's actual age.
The evidence of previous defilements was thus prejudicial, and it was improperly admitted. I shall revert to the extent of that prejudice when I consider the approach adopted by the magistrate in her judgment.
What then of the failure of the magistrate to advise the appellant of the onus upon him in raising the statutory defence, and of the methods by which that onus may be discharged, A namely, by extracting appropriate concessions from state witnesses in cross-examination, by leading his own witnesses, or by testifying himself? This is not a case, in my judgment, where the appellant, although unrepresented, was totally unaware of the defence available to him. Firstly, although sexual intercourse was admitted throughout, he pleaded not guilty to the charge, thus calling into question either the age of the B complainant or his reasonable belief as to such age. Secondly, he cross examined the complainant's mother, putting it to her that complainant, as in the case of other Takotokwane children, entered school at the age of seven years, and not five years, as the mother averred. This strongly indicates that the appellant believed the complainant to be two years older than she actually was (she was in fact 15 years three months at the time of the alleged offence). Thirdly, the appellant, when confronted by the police stated that he did not know if C complainant was below the age of 16 years. He also put it to the police officers (who denied this) that the appellant appeared to be over 16 years. Finally, the doctor testified that from the appearance of the complainant he could not guess her age, and the court itself, which is desirable in cases of this nature, did not describe for the record, her degree of physical maturity. D
In the light of these indicators it was the clear duty of the court to explain to the appellant both the onus upon him, and the means by which he could discharge this onus. In particular when explaining his options as to testimony, the magistrate should have informed the appellant that if he chose to remain silent he would fail to discharge his onus of showing that he in fact believed the complainant to be over 16 years of age in December 1998. The E extent of the prejudice suffered by the appellant as a result of this omission is shown by the brief analysis which I will now make of the judgment delivered by the magistrate.
In her judgment the magistrate set out in some detail the evidence given by the complainant and her mother F regarding the appellant's illicit behaviour during the two years prior to December 1998, and as to the actual, age of the complainant. In regard to this the magistrate stated that:
'A lot of incriminating evidence was given by the state against the accused, which evidence the accused made no effort to challenge, deny, dispute, explain or cast doubt upon'. G
She then proceeded to outline that incriminating evidence and included specifically the prejudicial evidence as to his prior behaviour. There can be no doubt that the appellant was severely prejudiced by that approach, as such evidence was not admissible against him.
The magistrate rightly held that the appellant had carnal knowledge of the complainant in December 1998 and H that the complainant was then not yet 16 years old. She then added, on the question of the statutory defence.
'The accused person gave no evidence to show that he did not know that the complainant was under 16 years and if he thought that she was 16 years or over.' After mentioning warnings administered by the complainant's mother (in terms rather exceeding what the mother A actually said, namely 'not developed and ready for sex' rather than 'immature and young to make sound decisions about sex') the magistrate held that:
'The accused person had full knowledge that the complainant was a young child and had no reasonable belief that she was over 16 years. If he did not know before, he was later told repeatedly and did not desist.' B
In this the magistrate again overstated the position somewhat. She made no reference to the appellant's line of cross-examination of complainant's mother and the police officer, no mention of the inability of the doctor visually to judge the complainant's age, and no mention of the fact that there was no evidence that the appellant was C ever actually told the complainant's age. She also ignored the fact that the admonitions were given sometime previously, and that by the time of the offence the complainant was in her 16th year.
There can be no doubt that by failing to testify the appellant put the seal on his own conviction. It is unlikely, on the line of cross-examination and conduct he had adopted, that he would have done so had he been properly D advised by the magistrate of the onus on him of establishing the statutory defence and of the effect on this onus of his failure to give evidence.
It follows that the appellant was severely prejudiced both by the admission by the magistrate of damaging and inadmissible evidence, and her reliance thereupon, and by her failure to explain to him the statutory defence available to him, together with the onus upon him in this regard and the means of discharging the onus. E
I cannot in the circumstances say he had a fair trial. There has thus been a failure of justice. The order of this court is that:
The conviction and sentence of the appellant are quashed.
Conviction and sentence set aside. F