MOTHOEMANG v. THE STATE 1989 BLR 44 (HC)

Export to PDF
Export to Word
Export to print
Citation: 1989 BLR 44 (HC)
Court: High Court, Lobatse
Case No:
Judge: Livesey Luke CJ
Judgment Date: April 6, 1989
Counsel:
Appellant in person. Baruti, State Counsel, for the State.
Flynote

Criminal procedure - Evidence - Accomplice - Corroboration - Uncorroborated testimony of accomplice admissible to convict accused person - Necessity of trial court to warn itself of danger of conviction without corroboration - Meaning of accomplice - Evidence of self - confessed accomplice - Corroborating evidence aliunde - Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.), s. 238.  H

Headnote

A shop known as L.M. Store at Peleng, Lobatse, was broken into and several articles, valued at P1,230.00 stolen therefrom on 25 February 1988. The stolen articles included wrist watches, cigarettes, hair lotions, radio sets and shoes.

 

During the same month the appellant and another man had in their possession large quantities of packets of   A cigarettes, hair lotions, pairs of shoes, radio sets and wrist watches which they were offering for sale. They were arrested by the police. They took the police to a bush where they pointed out two bags which contained a large number of articles which included pairs of shoes, radio sets, wrist watches, packets of cigarettes, and hair lotion. The articles were subsequently identified by the proprietor of the L.M. Store as some of the articles stolen from the shop. On these facts the appellant was charged and convicted of shop breaking and   B theft. At the trial the second witness for the prosecution testified that he, the appellant and another man had broken into the shop on 25 February 1988 and stolen therefrom a large number of articles.
On appeal against conviction and sentence,
Held, dismissing the appeal: (1) the provisions of section 238 of the Criminal Procedure and Evidence Act enact   C the English common law rule which is that the uncorroborated testimony of an accomplice is admissible in law and a court may convict an accused person on it. But it is now accepted as a rule of the English common law that it is the duty of a trial judge to warn the jury that, while it may convict on the testimony of an accomplice, it is dangerous to do so unless it is corroborated. The proviso to section 238 recognises the need to look for corroboration of the evidence of an accomplice. Davies v. D.P.P. [1954] 2 W.L.R. 343 at p. 351, H.L. applied.  D
(2) By his own admission on oath, the prosecution's second witness was an active participant in the crime of which the appellant was charged. He was therefore an accomplice. The conviction of the appellant was not based on his evidence alone. There was other competent evidence to support the conviction.
Case referred to:
Davies v. D.P.P. [1954] A.C. 378; [1954] 2 W.LR. 343; [1954] 1 All E.R. 507, H.L.  E

Case Information

Appeal against conviction and sentence on a charge of shopbreaking and theft.
Appellant in person.  F
Baruti, State Counsel, for the State.

Judgment

Livesey Luke C.J. On 26 April 1988 the appellant was convicted by the Magistrate's Court, sitting at Lobatse of the offence of shopbreaking and theft contrary to section 307 (a) of the Penal Code (Cap. 08:01) (1973 Rev.) and   G was sentenced to three years' imprisonment, one year of which was suspended conditionally. In addition he was sentenced to four strokes corporal punishment. He has appealed against conviction and sentence.
The evidence led by the prosecution may be briefly summarized. On the night of 25 February 1988 a shop known as L.M. Store at Peleng, Lobatse, was broken into and several articles valued at over P1,230.00 stolen there- from. The stolen articles included wrist watches, cigarettes, hair lotions, radio sets and shoes. During that same   H month the appellant and another gentleman went to the residence of one Kebonye Mathekgwane, the prosecution's third witness. They had in their possession large quantities of packets of cigarettes, hair lotions, pairs of shoes, radio sets and wrist watches. The appellant and his companion were offering the articles for sale and in fact sold some of the articles that day. They returned on the following

LIVESEY LUKE C.J.
morning and continued with the sale. The appellant gave a wrist watch to the prosecution's third witness for safe   A keeping. He and his companion returned to the house of the prosecution's third witness the following morning. The prosecution's third witness returned the appellant's wrist watch. The police went to the house and found the appellant and his companion there. The police arrested them. The appellant and his companion led the police to a bush in Woodhall, in Lobatse, where they pointed out two bags. The bags contained a large number of   B articles which included pairs of shoes, radio sets, wrists watches, packets of cigarettes and hair lotions. The police took the articles to the police station where they were identified by the proprietor of the shop as some of the articles stolen from the shop. One Boiki Boloko (the prosecution's second witness), a self-confessed accomplice, testified that he, the accused and another man broke into the shop about the night of 25 February   C 1988 and stole therefrom a large number of articles including the items produced in court.
The appellant gave evidence on oath. He denied taking part in the breaking and stealing. He said that on the night of 25 February 1988 in Peleng he was walking towards his girlfriend's house when he met Boiki Boloko (the prosecution's second witness) and another man. The prosecution's second witness and the other man were carrying the articles produced in court. They said that they were from Jwaneng and that they were hawking the   D articles. They asked him to store the articles for them, but as he did not have any storage space he led the prosecution's second witness and the other man to the house of the prosecution's third witness at Woodhall.
In arguing his appeal the appellant maintained his denial of the charge and said that he had been hired by the other two men to help them carry the items. He also mentioned the fact that the second prosecution witness had   E confessed to the crime.
In the course of his judgment the learned magistrate reviewed the evidence and came to the conclusion that the prosecution had proved its case against the appellant beyond reasonable doubt.
In my opinion even if the evidence of the accomplice (the prosecution's second witness) was to be ignored, there   F was overwhelming evidence supplied by the testimony of the proprietor (the prosecution's first witness), Kebabone Mathekgwana (the prosecution's third witness) and the police officer (the prosecution's fourth witness), all of whose evidence the learned magistrate believed, to support the conviction. The prosecution's first witness deposed that his shop was broken into and articles stolen therefrom on the night in question. The prosecution's   G third witness said that soon thereafter certain articles (which were later identified as some of the stolen articles) were in the possession of the appellant who offered them for sale and gave her one of them for safe keeping. The prosecution's fourth witness said that on the day after the appellant had offered the articles for sale at the house of the third prosecution witness, the appellant led him to a place where several articles (which were later identified as some of the stolen articles) were concealed. On the basis of the well-known doctrine of recent   H possession an inference can be reasonably and properly drawn from that evidence that the appellant broke into the shop and stole the articles therefrom.
With regard to the evidence of the accomplice (the prosecution's second witness), it is necessary to refer to section 238 of the Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.) which provides as follows:


LIVESEY LUKE C.J.
 "238. Any court which is trying any person on a charge of any offence may convict him of any offence alleged against him in the   A indictment or summons on the single evidence of any accomplice:
 Provided that the offence has, by competent evidence, other than the single and unconfirmed evidence of the accomplice, been proved to the satisfaction of such court to have been actually committed."
This section enacts the English common law rule which is that the uncorroborated testimony of an accomplice is   B admissible in law and a court may convict any accused person upon it. See Halsbury's Laws of England (4th ed.), vol.11, para. 457. But it is now accepted as a rule of law of the English common law that it is the duty of a trial judge to warn the jury that, while it may convict on the testimony of an accomplice, it is dangerous to do so   C unless it is corroborated. See Davies v. D.P.P. [1954] 2 W.L.R. 343 at p. 351, a decision of the House of Lords. In my opinion the proviso to section 238 recognizes the need to look for corroboration of the evidence of an accomplice.
The section (i.e. 238) does not define an accomplice. I cannot do better than respectfully quote the definition given by Lord Simonds L.C. in Davies v. D.P.P. (supra). His Lordship said inter alia at p. 352:  D
 "On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (in felonies) or persons committing, procuring or aiding and abetting (in the case of misdeameanors). This is surely the natural and primary meaning of the term 'accomplice'."  E
By his own admission on oath, the prosecution's second witness was an active participant in the crime of which the appellant was charged. He was therefore an accomplice. The conviction of the appellant was not based on his evidence alone. There was other competent and cogent evidence to support the conviction. As I indicated   F earlier, even if his evidence had been discounted there was sufficient evidence to support the conviction. But the learned magistrate took the precaution of examining his evidence in some detail and came to the conclusion that it was credible and was amply corroborated by the evidence of the first and third prosecution witnesses.
In my judgment therefore there was overwhelming evidence against the appellant and the learned magistrate came to a reasonable conclusion based on the totality of the evidence.  G
I find no merit in the appeal against sentence. In my opinion the sentence was appropriate.
In the result I dismiss the appeals against conviction and sentence. I confirm the conviction and sentence.
Appeal dismissed.  H
E. K. T.

<<Back