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MASILOMPANE AND OTHERS v. THE STATE 1997

BLR 1201 (HC)

Citation: 1997 BLR 1201 (HC)

Court: High Court, Francistown

Case No:

Judge: Gyeke-Dako J.

Judgment Date: November 20, 1997

Counsel:

M. P. Phumaphi for the appellents. L. Z.

Ngcongco for the respondent.

Flynote

Criminal law - Conservation offences -

Possession of ivory and Government

trophies in contravention of section

71(1)(d)(3) Wildlife and National Parks

Act (Act No. 28 of 1992) - Proof of

possession - Section 2 of Penal Code

applicable thereto.  F 

Words and phrases - "Possession" -

Meaning of in sections 2 and 71(1)(d)(3)

Wildlife and National Parks Act (Act No.

28 of 1992) as read with section 2 of

Penal Code (Cap. 08:01).

Headnote

The six appellants were jointly tried

and convicted of various offences under

the Wildlife and National Parks Act  G 

(Act No. 28 of 1992) ("the Act") and

sentenced to various terms of

imprisonment. Count 1, affecting the

first, second, third and fourth

appellants only related to the unlawful

possession of elephant ivory in

contravention of section 68(1) in

respect of four elephant tusks. Count 2

was against the same four appellants and

related to the unlawful possession of

Government trophies in contravention of

section 71(1)(d)(3) of the Act and

related to one elephant tail and hairs

and one graft skin of elephant anus and

surrounding area and one leopard skin.

Count 3  H  affected the fifth accused

alone and was a count of unlawful

dealing in Government trophies contrary

to section 64 of the Act in respect of

four elephant tusks. Count 4 was against

the sixth appellant only and was one of

unlawful dealing in Government trophies

contrary to section 64 of the Act in

respect of one leopard skin.

The court held that the magistrate's

statement of the law relating to

"possession" could not be faulted but

that  A  comments were called for on the

ambit of application of the definition

thereof in section 2 of the Penal Code

which was made applicable by section 2

of the Act. Paragraph (b) of the

definition was applicable to the present

proceedings where more than one accused

person was involved: in such case the

court had to be satisfied that each of

the persons charged was not only found

in physical possession of the Government

trophies forming the subject matter of

the charge but that he had some sort of

knowledge that what was physically

possessed was  B  forbidden for him. The

mere fact that the forbidden item was

found in a vehicle on which a passenger

was riding did not ipso facto make him

liable. It had been noted that the case

before the court a quo was not one where

possession was absolutely prohibited by

the Act. R. v. Matoso 1950 (4) S.A. 178;

S. v. Brick 1973 (2) S.A. 571, cited. 

In dealing with all cases where each

appellant says he did not know the

contents of a load or parcel, the

starting-point would be that the accused

had physical control of something found

to contain the substance. Such evidence

of possession called for an explanation.

The explanation would be heard by a

trier of fact and that trier of fact had

to decide whether there was genuine

ignorance of the presence of the

substance or such an acceptance of the

package with all that it might contain

or with such opportunity to ascertain

what it did contain or  D  such guilty

knowledge with regard to it as to make

up the statutory possession. It would

not be right or consistent with the

terms of statutory provisions to say

that the onus of showing innocent

custody rested upon the accused: the

prosecution had to establish the offence

and establish its ingredients. The

magistrate's misdirections had caused

him to close his eyes to the above test.

On the analysis of the entire evidence

it could  E  not be said that the first

four appellants' versions might not

reasonably be substantially true and

their appeals accordingly had to be

upheld.

The convictions of the fifth and sixth

appellants rested solely on a confession

statement alleged to have been made to a

magistrate. The statements of these

appellants were admitted in evidence

without a trial-within-a-trial being

held to determine whether they had been

voluntarily made. The magistrate was in

error in finding that the defence had in

each case admitted the statement and

that there was therefore no need for a

trial-within-a-trial to  F  determine

the admissibility or otherwise of the

statements. Parties in criminal

proceedings were not free to compromise

on procedure. The mere fact that an

accused has made a statement in the

nature of a confession does not in terms

of section 228(1) of the Criminal

Procedure and Evidence Act justify a

conclusion that it was made voluntary

and therefore admissible under the

section. The onus lay on the prosecution

to prove the  G  voluntary nature of the

statement beyond reasonable doubt and

the court had to be satisfied beyond

reasonable doubt that such proof has

been made by the prosecution before

admitting the statement. This can only

be achieved through a trial-within-a-

trial. In the present case the cross-

examination of the second prosecution

witness had given sufficient indication

of the defence intention to challenge

the admissibility of the statements  H 

made by the fifth and sixth appellants

to a magistrate and necessitate the

conduct of a trial-within-a-trial to

determine the voluntary nature of the

statements. It was quite clear that the

magistrate had erred in not adverting

his mind to the principle that a

confession statement induced by an

earlier threat or undue influence could

only be admitted if the prosecution had

proved beyond reasonable doubt that the

earlier threat or undue influence had

completely dissipated before or at the

time of making the statement. Bearing in

mind the  A  uncontroverted testimony of

the sixth appellant that he had acted

under threat from the police it was

erroneous for the magistrate to have

relied on the appellant's explanation to

arrive at the conclusion that the threat

was a figment of the sixth appellant's

imagination. The convictions and

sentences of all the appellants had to

be set aside.  B

Case Information

Cases referred to:

 (1) R. v. Matsoso 1950 (4) S.A. 178 (O)

 (2) S. v. Brick 1973 (2) S.A. 571 (A)

 (3) R. v. Difford 1937 A.D. 370

 (4) R. v. M. 1946 A.D. 1023

 (6) Warner v. Metropolitan Police

Commissioner [1969] 2 A.C. 256  C 

 (7) Lesolame v. The State [1997] B.L.R.

60, C.A.

 (8) Seneviratne v. R. [1936] 3 All E.R.

36

 (9) Adel Muhammed El Dabbah v.

Attorney-General of Palestine [1944]

A.C. 156

 (10) R. v. Collier (1844) 3 Cox C.C. 56

 (11) R. v. Meynell (1834) 16 E.R. 1100 

D 

 (12) R. v. Sherrington (1838) 168 E.R.

1101

 (13) Sparks v. R. [1964] 1 All E.R. 727

 (14) R. v. Ndoyana 1958 (2) S.A. 562

 (15) Masina and Another v. The State

[1983] B.L.R. 237

 (16) State v. Mokwena [1990] B.L.R. 1 

E 

APPEALS from convictions and sentences

in a magistrate's court on charges under

the Wildlife and National Parks Act (Act

No. 28 of 1992). The facts are stated

sufficiently in the judgment.

M. P. Phumaphi for the appellants.

L. Z. Ngcongco for the respondent.  F

Judgment

Gyeke-Dako J.:

I allowed the appeals of all the

appellants and promised to give reasons

for doing so, and I now give them.

The six appellants were on 28 June 1994,

jointly tried and convicted of various

offences under the Wildlife and  G 

National Parks Act (Act No. 28 of 1992

as amended) (hereinafter referred to as

the Act) by his Worship, A. Keetshabe,

Esq., principal magistrate (as he then

was) sitting at the Selibe Phikwe

magistrate's court and sentenced to

various terms of imprisonment.

The appellants are (1) Maphole D.

Masilompane; (2) Molaodi Kolobe; (3)

Mmuso Lesosa; (4) Moses Gabanamotse; (5)

Keitheng Mhalapitsa and (6) Mazebedi

Rampaulane. I shall, where necessary,

refer to them  H  as first, second,

third, fourth, fifth and sixth

appellants respectively.

The summons on which they were convicted

contained four counts. Counts 1 and 2

affected the first, second, third and

fourth appellants only.

In count 1, the four appellants were

charged with unlawful possession of

elephant ivory, in contravention of

section 68(1) and punishable under

1997 BLR p1204

GYEKE-DAKO J

section 68(2) of the Act, in that they

were found in unlawful possession of

four elephant ivory (tusks) acquired  A 

within Botswana, weighing 41 kilograms

and valued at P26,650. The offence was

allegedly committed at or near

Motlhabaneng village in the Central

Administrative District of the Republic

of Botswana on 4 September 1993. The

unlawfulness of their conduct stemmed

from the fact that they had no

certificate of ownership.

The offence charged in count 2 against

the same four appellants jointly was

unlawful possession of Government  B 

trophies in contravention of section

71(1)(d)(3) of the Act and relates to

one (1) elephant tail and hairs valued

at P60 and weighing 20.7 grammes; one

(1) graft skin of elephant anus and

surrounding area; and one leopard skin

valued P700 and weighing 900 grammes.

The date and place of the commission of

the alleged offence are the same as

those stated in count one.  C 

Count 3 affects the fifth accused,

Keitheng Mhalapitsa alone. He was

charged with unlawful dealing in

Government trophies, contrary to section

64 of the Act, in that, between 1 and 31

August 1993, he unlawfully offered for

sale, at or near Bobonong village, in

the Central District of the Republic of

Botswana, Government trophies, to wit:

four (4) elephant tusks valued at

P26,650.00 and weighing 41 kilograms

from an animal not lawfully captured or

killed in the Republic of Botswana.  D 

The last count, i.e. count 4 is against

the sixth appellant, Mazabedi Ramapulane

alone. The charge is that of unlawful

dealing in Government trophies, contrary

to section 64 of the Act, and the

particulars of offence being that he,

between 1 August 1993 and 31 August 1993

(exact date unknown and both days

inclusive) at or near Motlhabaneng

village, in the Central Administrative

District of the Republic of Botswana,

unlawfully offered for  E  sale, a

Government trophy, namely, one (1)

leopard skin from an animal not lawfully

killed or captured in the Republic of

Botswana, valued at P700.00.

On count 1, the first, second, third and

fourth appellants were each sentenced to

five years' imprisonment, with two years

conditionally suspended, and on count 2,

to three years' imprisonment with two

years conditionally  F  suspended. The

effective custodial sentences in respect

of counts 1 and 2 were ordered to run

concurrently.

The fifth appellant was sentenced upon

his conviction on count 3, to ten years'

imprisonment plus a fine of P50,000

(without a default clause).

Upon his conviction on count 4, the

sixth appellant was sentenced to three

years' imprisonment - two years

conditionally suspended.  G 

There was also a forfeiture order in

respect of the trophies and the vehicle

allegedly used in connection with the

commission of the offences laid in

counts 1 and 2.

The appellants are now appealing against

their convictions and sentences.

The details of the evidence adduced

before the court a quo upon which the

appellants' convictions were based  H 

appear from the very lengthy and full

judgment of the learned magistrate and

it is not necessary to reproduce them

lock, stock and barrel here. In my view,

it would be sufficient to give a pr�cis

of them, bearing in mind particularly

those portions of the learned

magistrate's judgment which have come

under vehement attack from Mr. Phumaphi,

who appeared for the appellants both at

the court a quo and in

1997 BLR p1205

GYEKE-DAKO J

this court. I should perhaps point out

that Mr. Ngcongco, the learned Principal

State Counsel now appearing for  A  the

State/respondent in this appeal, was not

the prosecuting counsel before the court

below. The prosecution was conducted by

a Mr. Achiume, the then Principal State

Counsel in charge of the northern sector

of the country and based in Francistown.

The State evidence against the first,

second, third and fourth appellants in

respect of counts 1 and 2, dealing with 

B  unlawful possession of elephant ivory

and Government trophies respectively,

came from only two witnesses.

According to Detective Inspector

Boikhutso Boikanyo Ntalabgwe of the

Diamond and Narcotic Squad in

Francistown, who gave evidence as the

second prosecution witness, upon

information received, he proceeded to

Selibe-Phikwe with Sergeant Pilane and

another police officer named

Nthobatsang. They met Mr. Ntshese, the 

C  Deputy Officer Commander of the

Diamond and Narcotic Squad there. Mr.

Ntshese was in company of Sub-Inspector

Ntheetsang and Constable Kewareng. He

was briefed by his superior officer,

i.e. Mr. Ntshese, about an impending

operation they were to undertake

somewhere at Motlhabaneng village in the

Bobirwa area. The operation involved the

arrest of the first, second, third and

fourth appellants for the possession of

elephant  D  tusks and leopard skins.

According to PW2, "their plan was to go

and see how they can arrest those

accused persons". They therefore decided

to look for someone, preferably a white

man, unknown to the inhabitants in the

area, to pose as a buyer. In the

afternoon of the same day, two police

officers - Gert Jacobus van der Merwe

and Detective Pretorius of the

Endangered Species Protection Unit of

the South African Police, in response to

an  E  invitation extended to them by

the Botswana Police to assist in the

arrest of the suspects, arrived at

Selibe Phikwe from Pretoria, Republic of

South Africa. Mr. Van der Merwe gave

evidence as the first prosecution

witness and shall be referred to as the

first prosecution witness. According to

the first prosecution witness, he

received the request on 3 September 1993

and set out from Pretoria with Detective

Constable Pretorius on the  F  next day,

i.e. 4 September 1993, arriving at

Selibe-Phikwe at about 4 p.m. the same

day. The South African Police,

especially his unit, normally cooperates

with the Botswana Police in such matters

"since the trade in ivory is always

going down south".

He and Constable Pretorius met the

second prosecution witness and other

Botswana Police officers already

assembled at the Bosele Hotel in Selibe-

Phikwe. There was a briefing session at

which the two South African  G  Police

officers were apprised of the details of

the operation and the part they were to

play. Indeed, they had come with their

scale to give the operation some air of

genuineness. The Botswana Police

involved in the operation even knew that

the four accused persons were to convey

the tusks and the leopard skins to a

pre-arranged rendezvous on a Toyota 4x4

vehicle bearing registration No. BC 8 A

belonging to the first accused. In all,

11  H  Botswana police officers,

inclusive of some armed personnel from

the anti-poaching squad were recruited

for the operation.

A convoy of police vans involved in the

operation set out under the cover of

darkness from Selibe-Phikwe and arrived

at Motlhabaneng at about 8 p.m. They

then headed eastwards, travelling on a

motor road for about

1997 BLR p1206

GYEKE-DAKO J

three kilometres, where they branched

off and drove about 100 metres into the

bush where the first prosecution  A 

witness and Pretorius were asked to wait

in the vehicle for the accused persons

while others lay ambush. The evidence

showed that the expected vehicle

appeared on the road at about 11 a.m.,

turned off the main road and pulled up

next to the van of the two South African

police officers posing as buyers. There

appears to be some discrepancies between

the testimonies of the first and second

prosecution witnesses regarding the

events  B  which followed. According to

the first prosecution witness, Mr. Van

der Merwe, there were five occupants in

the appellants' vehicle. The vehicle was

being driven by the first appellant. He

and Pretorius came down from their

vehicle and walked to the appellants'

vehicle. It was dark. He started

negotiating the sale of the ivory with

the first appellant. He saw the ivory at

the back of the vehicle. The first

appellant showed him the four sets of

ivory and  C  demanded P100,000.00 for

the big tusks. He did not agree on the

price. The first appellant asked him how

much he would pay for the smaller tusks.

He told the first appellant he would

have to weigh them first. At this moment

he asked Constable Pretorius to fetch

the scale from their vehicle with which

to weigh the tusks, and as pre-arranged,

to give a signal to the police officers

lying in ambush that the tusks were

indeed on the vehicle.  D  Pretorius

complied with his instructions. He gave

the signal by switching on the lights of

their vehicle. The second prosecution

witness and his men sprang on the four

appellants. A fight ensued between the

appellants and their arresters in the

course of which shots were fired. The

second prosecution witness said those

shots were warning shots to stop the

appellants from escaping. This

notwithstanding, the fourth appellant

and one  E  Molefe Lebotse, a member of

the Botswana Defence Force (BDF) who was

the fifth person in the appellant's

vehicle melted into the darkness and

made good their escape. The first,

second and third appellants were over-

powered and arrested. They were

handcuffed. Inspection of the vehicle

revealed that in addition to the

elephant tusks, were the following

items: elephant tail and hair weighing

20.7 grammes; one graft skin of an  F 

elephant anus and the surrounding area;

and a leopard skin which according to

the prosecution evidence, was valued at

P700. The three appellants, upon their

arrest, named the fourth appellant and

Molefe Lebotse as those who slipped

through the net. They were driven in a

police vehicle and brought to Bobonong

Police Station and there detained. The

police drove the first appellant's

vehicle with the tusks and other

trophies to the same police  G  station

and stored the exhibits in a room. The

fourth appellant was arrested the next

day, i.e. 5 September 1993. He was

interrogated by the police. The fifth

and sixth appellants were arrested as a

result of the police interrogation of

the third and fourth appellants. I shall

deal with this aspect of the case when I

come to consider the appeals of the

fifth and sixth appellants.  H 

As rightly pointed out by the learned

magistrate, the four appellants denied

the charges against them. The gist of

their evidence was that even though they

knew each other, they were not living in

the same village. The first appellant

lived at Molalatau. The second appellant

lived at Bobonong, so was the fourth

appellant. The third appellant lived at

Motlhabaneng. According to the first

appellant, on the night of 4 September

1993, he

1997 BLR p1207

GYEKE-DAKO J

travelled in his vehicle, a Toyota 4x4

with Registration No. BC 8 A with the

second and fourth appellants intending 

A  to go to Talana farms to attend a

church congregation. They were all

sitting in the cabin of the vehicle. He

had only a spare tyre and a tarpaulin in

the body of the vehicle. They passed

through Motlhabaneng en route to Talana

farms. They came across the third

appellant standing in front of a bar, at

Motlhabaneng looking for a lift to

Talana farms. The third appellant's

purpose of going to the farm was to

collect some money from his two sons  B 

staying and working at the Talana farms.

He was to use the money to cover his

medical expenses. The third appellant

had no luggage with him. He offered him

a lift. The third appellant rode at the

back of the vehicle. The time was

between 10.30 and 11 p.m. En route, they

came across Molefe Lebotse whom they all

knew, standing by the side of the road.

He had a load consisting of two parcels.

Molefe Lebotse stopped them and told

them he  C  had gone to collect firewood

in the bush and that his vehicle had

broken down. He pleaded with them to

drive him to the spot beyond Motloutse

river where his vehicle had broken down.

The first appellant agreed to offer him

a lift. Molefe Lebotse loaded his

parcels into the vehicle, and sat at the

back with the third appellant. They

proceed. After crossing the river,

Molefe asked the first appellant to turn

right, saying that his vehicle had

conked  D  out in the bush over there.

As they drove in that direction, they

spotted a vehicle parked in the bush.

They parked their vehicle parallel to

the vehicle which they were made to

believe had had a breakdown. Little did

they know that it was a Trojan horse.

They disembarked from their vehicle and

walked to the vehicle, to see what could

be done to assist Molefe. They were

suddenly besieged and attacked by a

group of people from nowhere.  E  They

fought back thinking Molefe had connived

with those people to rob them of the

vehicle. Shots were fired. Molefe and

the fourth appellant managed to run

away. The first, second and third

appellants were however arrested and

handcuffed and driven in a vehicle

different from theirs and taken to

Bobonong Police Station. It was in the

vehicle that the police revealed their

identity and asked them about the

elephant tusks they had in their  F 

vehicle. They denied knowledge about the

tusks. They were detained and only shown

the ivory and other trophies allegedly

found in their vehicle the next day. And

even, this was in the absence of the

fourth appellant who was then at large.

As contended at the trial, they told the

police, if indeed those exhibits were

found in the vehicle, it was Molefe who

brought them into the vehicle, as he was

the only person who boarded the vehicle

with a load or  G  in the alternative,

it was the police themselves who planted

them there, through Molefe for purposes

of linking them with an offence about

which they knew nothing. Furthermore,

since the lift was offered to Molefe in

the night and they did not examine

Molefe's load before he put them on the

vehicle, there was no way that they

could have known the contents of his

luggage, let alone knowing them to be

tusks and other government trophies.  H 

The following grounds of appeal as

reflected in the amended grounds of

appeal were filed on behalf of all the

appellants and argued by their counsel

Mr. Phumaphi:

 "1. With the greatest respect, the

Learned Chief Magistrate erred in

1997 BLR p1208

GYEKE-DAKO J

  relying on hearsay evidence in coming

to the conclusion that the appellants

were guilty of the offences charged.  A 

 2. With the greatest respect, the

Learned Chief Magistrate erred in

concluding that the first four

appellants were guilty even before he

considered their evidence.

 3. The Learned Chief Magistrate

misdirected himself by failing to avert

his mind to the role played by one

Molefe Lebotse who was in company of the

appellants numbers one to four at the

time they were arrested.  B 

 4. The Learned Chief Magistrate erred

in taking judicial notice of matters

that should have been established by

evidence.

 5. The Learned Chief Magistrate erred

in rejecting the evidence of all the

appellants when it was in all

circumstances probable.  C 

 6. The Learned Chief Magistrate erred

in convicting appellants five and six

when there was no admissible evidence

before him to indicate that the offences

they were charged with were actually

committed.

 7. The Learned Chief Magistrate erred

in convicting appellants five and six in

the absence of linking the statements

they were alleged to have made with the

exhibits produced before court.  D 

 8. The Learned Chief Magistrate

misdirected himself by imposing

excessive sentences against the

appellants such that the sentences

imposed on al the appellants induce a

sense of shock when all the

circumstances of the case are taken into

account."

Both Mr. Phumaphi and Mr. Ngcongco

submitted heads of argument.  E 

Before dealing with Mr. Phumaphi's

submission and Mr. Ngcongco's initial

response thereto, let me say at once

that the learned magistrate a quo's

brief statement of the law in cases

where the charged relates to

"possession" cannot be faulted. At p.

J.14 of his judgment, he said inter

alia:

 " the word 'possession' is defined

under section 2 of the Penal Code, and

it has been subject (sic) to

interpretation in our  F  courts on many

occasions. In Tsoko Seepa and Samuel

Mothibi v. State: Cr. App. 200/91,

Nganunu J., went into some detail in

interpreting the word possession. In

Edwin Seja v. State: Cr. App. No.

116/89, Gyeke-Dako, J. said as follows:

  'Physical possession without that

knowledge, in my opinion, is no offence.

Without that knowledge there is no legal

possession which can support the charge.

The prosecution must prove the legal

possession, that is, in addition to  G 

proving physical or constructive

possession, they must go further to lead

evidence which establishes that the

accused person charged with such an

offence had the requisite knowledge, or

evidence from which it will be

reasonable to presume that the accused

proved to be in possession well knew,

ought to have known that the stones were

diamonds'."  H 

However, in view of the nature of the

evidence led against the first four

appellants, some comments are called for

on the ambit of application of the

section.

I should first note that section 2 of

the Wildlife Conservation and

1997 BLR p1209

GYEKE-DAKO J

National Parks Act 1992 (hereinafter

referred to as the Act) states that the

word "possession" shall have the  A 

same meaning as is given to the word

"possession" in section 2 of the Penal

Code. Section 2 defines "possession" as:

 "(a) 'be in possession of' or 'have in

possession' includes not only having in

one's own personal possession, but also

knowingly having anything in the actual

possession or custody of any other

person, or having anything in any place 

B  (whether belonging to, or occupied by

oneself or not) for the use or benefit

of oneself or of any other persons;

 (b) if there are two or more persons

and any one or more of them with the

knowledge and consent of the rest has or

have anything in his or their custody or

possession, it shall be deemed and taken

to be in the custody and  C  possession

of each and all of them." (The emphasis

is mine.)

I believe I am right in stating that

paragraph (b) supra, is of moment to

these proceedings. This is because the

magistrate a quo, at the end of the day,

convicted all four appellants on the

charge of unlawful possession as laid 

D  in counts 1 and 2 of the summons.

For in cases such as this, where more

than one accused person is involved, the

court must be satisfied that each of the

persons charged, was not only found in

physical possession of the Government

trophies forming the subject matter of

the charge, but that he had some sort of

knowledge that what was physically

possessed was a  E  forbidden thing: see

R. v. Matsoso 1950 (4) S.A. 178 (O) at

184H; S. v. Brick 1973 (2) S.A. 571 (A)

at 580B-D. In my view, therefore, the

mere fact that the forbidden item is

found in a vehicle on which a passenger

is riding does not ipso facto make it

liable. To hold otherwise would

undoubtedly put all drivers and

passengers in peril not contemplated by

the law.  F 

It must be noted that the case before

the court a quo, was not one where

possession is absolutely prohibited by

the Act. This is because, upon

production of a licence or a reasonable

explanation of his possession would

release the possessor from criminal

responsibility.

I now turn to the arguments presented by

Mr. Phumaphi on behalf of the first four

appellants. Counsel's most potent attack

was on the prosecution's failure to call

a material witness, namely, Molefe

Lebotse, a member of  G  the Botswana

Defence Force (B.D.F.) who was with the

appellants in the vehicle and whose

evidence was necessary for the true and

just determination in the case.

According to counsel, the only account

of the circumstances under which those

trophies forming the subject matter of

counts one and two came to be in the

vehicle (if indeed they were found in

first appellant's vehicle) came from the

appellants themselves. The only  H 

witness who could have testified a

contrario, was Molefe Lebotse, but he

was not called. In counsel's view

therefore, the learned magistrate in

rejecting the appellants' explanation

was in error in holding that the

prosecution had proved "possession"

beyond reasonable doubt.

Before examining this argument, let me

reiterate the well known test to be

1997 BLR p1210

GYEKE-DAKO J

applied in criminal cases. It is this:

Could the version of the accused

(appellant) be reasonably possibly true?

or,  A  is there a reasonable

possibility that the accused's

(appellant's) evidence could be true?

And as said in R. v. Difford 1937 A.D.

370, even if an accused's version may be

improbable, he is entitled to his

acquittal if there is any reasonable

possibility of it being true. I will

even go further, and with respect, adopt

what was said by the South African

Appellate Division in R. v. M. 1946 A.D.

1023 at p. 1027 that in applying the

test the court does not  B  have to

believe the accused's (appellant's)

story, still less does it have to

believe it in all its details. It is

sufficient if it thinks that there is a

reasonable possibility that it may be

substantially true. That test has been

constantly followed in our courts.

In this appeal, it appears clear from

the prosecution evidence that the police

were seised with the information that

the four appellants were going to come

to the rendezvous on a Toyota Hilux 4x4,

Registration No. BC 8 A  C  belonging to

and driven by the first appellant with

the tusks and leopard skins. Lo and

behold, the items found in the vehicle

and contained in the load of Molefe

Lebotse included elephant tusks and a

leopard skin. There is no evidence on

record to show that any of the four

appellants knew the specific spot in the

bush chosen as a rendezvous for the sale

to take place. The appellants'

contention that they were directed to

the place by Molefe  D  Lebotse under

the pretext that this vehicle had broken

down at the spot after he had been to

collect firewood stood uncontroverted by

any evidence from the prosecution.

Lebotse did not give evidence to show

when he went to collect the firewood and

when his vehicle broke down. On the

evidence as, it stood uncontradicted, is

there not a reasonable possibility that

Molefe Lebotse was part of the police

trap who assured the police of luring 

E  the appellants to the rendezvous to

be arrested? In my view, the possibility

if not the probability exists that

Lebotse was in cahoots with the police.

Is there not a reasonable possibility

that it was Molefe who planted those

exhibits to perfect the efforts to

effect the arrest of the appellants

seeing that police were even in

possession of knowledge of the items to

be expected to be in the vehicle and

were certain of the arrest, hence they

had gone to  F  the trouble of securing

the assistance of the two South African

police officers? Since there is no

evidence to contradict the appellants'

averments that they did not know the

contents of Molefe's load, would it not

be reasonably possible that the first

time the appellants saw the exhibits (if

indeed those exhibits were shown to

them) was at the time of their arrest?

The charges against the four appellants

were in respect of unlawful  G 

possession and not dealing in the

exhibits. The prosecution themselves

appear not to believe in their assertion

that the first appellant negotiated the

sale of the exhibits. Hence they did not

think it fit to prefer a charge of

"unlawful dealing" against the four

appellants as they did in respect of the

fifth and sixth appellants.

I agree with Mr. Phumaphi that the

learned magistrate by allowing his mind

to be influenced by irrelevant  H 

consideration and hearsay evidence,

erred in rejecting the appellants'

explanation when he stated at pp. 15-22

of his lengthy judgment as follows; and

I quote extensively from the judgment:

 " I have already held that generally,

accused persons possessed the ivory.

Likewise, I should have no trouble in

holding that they knew that

1997 BLR p1211

GYEKE-DAKO J

 what they possessed was a forbidden

thing and this can be inferred from the

following factors:  A 

 1. Accused persons are acquaintances;

well known to each other.

 2. This was a joint trip.

 3. The trip was undertaken quite late

at night, the rational behind this being

to conceal their identity.

 4. Upon their arrest, not only did they

resist, one of them managed to evade the

arrest.  B 

 5. The spot where they were captured is

not normally accessible - it is out of

the way.

 6. We are here dealing with objects

which are not feather weight but rather

heavy weights that cannot escape notice

by anyone occupying the motor vehicle. 

C 

 7. Most importantly, accused persons

led by accused 1, directly discussed the

price of the ivory with PW1, showed it

to him and offered to sell it to him as

a mentioned price of P100,000.00.

 If this is not knowledge on their part

that what they possessed was ivory, I

would be left perplexed. It is not a

series of king size coincidences that

these men were altogether at the most

awkward hours; at that awkward place;

that they made  D  attempt to resist

arrest and that they actually showed the

ivory to PW1. Rather this is concrete

evidence that establishes that they knew

what was in their custody. I therefore

conclude and find as a fact that the

four accused persons possessed the ivory

and that they had knowledge that the

same was in their possession.  E 

 In the case of Segaetsho Garekwe v. The

State Criminal App. No. 269/88 Gyeke-

Dako, J. had to deal with the issue of

onus of proof in criminal cases. He

referred to Rex v. Difford 1937 A.D. 370

and quoted as follows:

  'It is not disputed on behalf of the

defence that in the absence of some

explanation the court would be entitled

to convict the accused. It is not a

question of throwing any onus on the

accused, but in these circumstances, it

would  F  be a conclusion which the

court could draw if no explanation were

given. It is equally clear that no onus

rests on the accused to convince the

court of the truth of any explanation he

gives. If he gives an explanation, even

if that explanation is improbable, the

court is not entitled to convict unless

it is satisfied, not only that the

explanation is improbable, but that

beyond any reasonable doubt it is false.

If there is any reasonable doubt it is

false. If there is  G  any reasonable

possibility of his explanation being

true, then he is entitled to his

acquittal.'

 That is the general standard of proof

in criminal cases. But it is of crucial

importance to be alive to the fact that

we are dealing with a case where the

standard of proof is being set by

statutory provisions. Section 72(3) of

the Wildlife Conservation and National

Parks Act provides as follows:  H 

  'Where any animal, or the meat or

trophy of an animal is found upon or in

any vehicle, boat or aircraft, or at any

camping place, every person who is upon

or in or in any way associated with such

vehicle, boat or aircraftshall be

presumed, unless the contrary is proved,

to be in possession of such animal, meat

or trophy."

1997 BLR p1212

GYEKE-DAKO J

 Section 72(5) provides that:  A 

  'The burden of proving any fact which

would be a defence to a charge of

contravening of failing to comply with

any provision of this Act shall lie on

the person charged with such

contravention or failure.'

 I find these provisions almost word for

word identical with those under the

Drugs and Related Substances Act, these

being sections 20(2) and 20(3). It is

for this reason that I have chosen to

refer to the Court of Appeal case Thlogo

v. The State  B  [1993] B.L.R. 287, a

full bench decision, which involved

drugs. Amissah J.P. stated that: (at B-C

and F-G - unreported).

  'On a charge of unlawful possession of

habit forming drugs under the Act, once

the possession is proved, the onus

shifts on to the accused person to prove

on the balance of probabilities,

certainly not a question of

possibilities, that  C  the possession

is lawful  Unless it is proved

otherwise, and that proof must come from

the accused, section 11 (2) says that he

was the possessor. The onus placed on an

accused in such cases is discharged by

proof according to the standard required

in civil cases. If the applicant does

not provide such proof to the

satisfaction of  D  the court, the fact

of his possession of the drugs must be

accepted by the court. At that stage,

the defence open to the appellant, which

again must be discharged on a balance of

probabilities, is that he was in awful

possession of the goods.'

 Without adding anything, the position

in our law is that at this stage, the

onus has now shifted on to accused

persons to prove on a balance of

probabilities that their possession of

the ivory was lawful. This immediately,

called for a closer  E  examination of

the evidence of accused persons. The

evidence of accused persons may be

collectively dealt with for as I said

their evidence is almost a replica of

that of another. Their story is simple:

They were proceeding to a church

service; they picked up accused three at

Motlhabaneng and shortly thereafter they

picked one Molefe who intimated that he

had  F  had a breakdown. He led them to

a motor vehicle, whereupon they were

ambushed and then arrested. They say

they know nothing about the ivory.

 This evidence presents itself as

susceptible to attack and I find it

false in many ways and for very many

reasons. I have already rejected the

suggestion that police are responsible

for planting the ivory on grounds that

we are unable to explain  G  why police

officer in the ordinary course of their

duty wold go so far as falsely

implicating ordinary and innocent

civilians. This is a brave suggestion

and it takes a great deal of

determination to put it forward for such

suggestions go deep in challenging the

integrity of the police force.

 It is absolutely important to know that

all the four accused persons are

acquaintances. In fact they are known to

each other very well. Not only that;

there is also one Molefe who is known

very well to accused persons. Whilst it

is true that  H  Molefe was available at

that time, accused person's explanation

about Molefe is most unbelievable.

According to them Molefe revealed that

he had gone to collect firewood. We

cannot understand what Molefe was doing

at that place at that time. It was at

night and he was alone. An ordinary

Motswana cannot accept that someone went

to collect firewood

1997 BLR p1213

GYEKE-DAKO J

 single handedly at midnight. Firewood

is normally collected when there is

enough light provided by nature and not

at night  A  and noon can effectively

collect firewood under the cover of

darkness.

 But again we are unable to reconcile

the statement that it is Molefe who led

them to a motor vehicle with the fact

that that statement was untrue, for as

it turned out, that was a police motor

vehicle. We cannot expect that what

accused persons say is in conformity

with common sense. A man who has gone to

collect firewood single handedly, and

has had a  B  breakdown at that hour of

the night is desperately looking for

assistance and cannot be that cruel to

lead his rescuers into such a devil. But

with this Molefe, he threw accused

persons into the hands of the police.

Common practice dictates against the

picture that accused persons place

before this court. Their events totally

reject each other.  C 

 The truth is that, if I may say,

accused persons were caught red-handed.

They held a conversation through accused

1, with PW1 and that was their common

purpose. Their denial of this just a bar

one, and cannot be allowed to stand.

 It is true at the time of their arrest

they resisted and that is why one of

them (Accused 4) ran away and vanished

into the darkness.  D 

 Accused persons' evidence that

immediately after their arrest they were

not told of the purpose of the arrests;

nor were they shown the ivory should be

rejected firstly because it is

abundantly clear from the evidence that

police introduced themselves and

proceeded to question them in connection

with the ivory. Secondly I do not see

any reason why experienced police

officers arresting men at that hour at

that place would choose to ignore

standard practice and fail to  E 

apprise their suspects of the purpose of

the arrest.

 But again I cannot see any reason why

the three accused persons would not be

shown the ivory but accused four was.

Accused four admits that immediately

upon his arrest he was shown all the

exhibits. This is standard practice.  F 

 It is being said that accused 3 was

collected at 10:30 p.m. or thereabout.

Even if one did not know the events that

occurred subsequent to their departure

from Motlhabaneng village, this is the

most suspicious trip. I cannot

understand why accused 3 had to leave

his home at 10 p.m. to go to the road-

side to look for lifts and by

coincidence he meets people whom he so

well knows. I see this as a joint and

pre-arranged trip, undertaken by people

who know each other well.  G 

 Accused 3 cannot be heard to say he was

going to collect money from his sons at

Talana for medical expenses. We do not,

in the ordinary course of nature, expect

sick people to be standing by road-sides

even at 11 p.m. Once this evidence does

not confirm to common practice and I

cannot believe it. This is a clear

attempt to twist the truth and to cover

up illegal  H  activities. His ailment,

as he says, had been diagnosed a long

time back, but he decided to wait until

this day, until this awkward hour of the

day to go to his sons.

 I am satisfied that the evidence of the

four accused persons is demonstrably

false. Such evidence has no legal leg to

stand on and it must be rejected, and I

so do. That is now the end of this

matter. Accused

1997 BLR p1214

GYEKE-DAKO J

 persons have come nowhere nearer to

establishing that their possession of

the ivory was lawful. When a false

explanation  A  is tendered, it cannot

be said to discharge the onus placed on

them on a balance of probabilities.

 In terms of section 68 of the Wildlife

Conservation and National Parks Act,

accused persons are not licenced to

possess these tusks. Their possession of

the same was therefore unlawful.

 In conclusion, the prosecution have

proved their case in respect of this

count beyond any reasonable doubt.

Consequently I  B  enter a verdict of

guilty in respect of each accused person

and convict each as charged under count

one of the offence of Unlawful

Possession of Elephant Ivory contrary to

section 68(1) as punishable under

section 68(2) of the Wildlife

Conservation and National Parks Act.

 Count 2  C 

 The prosecution alleges that on 5

September 1993 accused 1, accused 2,

accused 3 and accused 4 unlawfully

possessed Government trophy viz:

elephant tail and hairs graft skin of an

elephant anus and surrounding area and a

leopard skin.

 It is now for this court to decide

whether accused persons every possessed

these items and if so, whether their

possession of the same was unlawful.  D 

 It will be appreciated that count 1 and

2 are inextricably intertwined. This is

because both counts involve the same

circumstances - the only difference

being the subject matter.

 The evidence is therefore the same -

that is both the evidence for the

prosecution and for the defence. So are

the reasons for the court's decision.

The only reason why count 2 has to be

dealt with separately is that our law

requires that there be  E  separate

verdicts in respect of each count, but I

have nothing more to say here except

that the prosecution evidence

establishes that in the same motor

vehicle, there was a leopard skin,

elephant tail hairs and skin graft of

elephant anus and surrounding areas.

These were seized and submitted to a

biologist for examination. They were

also weighed.  F 

 These are trophies in terms of s 2 of

the Act. For the same reasons I come to

the conclusion that accused persons

possessed these trophies unlawfully and

that the prosecution have proved their

case under this count in respect of each

accused person beyond any reasonable

doubt."  G 

It is trite to say that a judicial

officer must decide a case on the

evidence before him. He is in duty bound

to hold the scales of justice with equal

poise between the parties. He is not to

bolster the prosecution case by plugging

the lacuna by drawing inferences from

non-existing proven evidence. I must

further point out that there is no

doctrine of police infallibility. This

fact must be borne in mind when dealing

with cases of entrapment.  H 

In dealing with all such cases where

each appellant says he did not know the

contents of a load or parcel, the

starting point will be that the accused

had physical control of something - a

package, a bottle, a container - found

to contain the substance. Such evidence

- generally strong evidence - of

possession, calls for an explanation.

The explanation will be heard by a trier

of fact (jury) and that trier of fact

must decide whether there is genuine

1997 BLR p1215

GYEKE-DAKO J

ignorance of the presence of the

substance, or such an acceptance of the

package with all that it might contain, 

A  or with such opportunity to ascertain

what it did contain or such guilty

knowledge with regard to it as to make

up the statutory possession. But of

course, it would not be right or

consistent with the terms of statutory

provisions to say that the onus of

showing innocent custody rests upon the

accused. The prosecution, in my view,

must prove the offence and establish its

ingredients. See Lord Wilberforce in

Warner v. Metropolitan Police  B 

Commissioner [1969] 2 A.C. 256 at 312B-

E.

For the reasons set out above, I agree

with Mr. Phumaphi that the various

misdirections of the learned magistrate

caused him to close his eyes to the test

I have enunciated. It is my view that on

the analysis of the entire evidence, and

particularly in the absence of any

evidence from Molefe Lebotse - a

material witness whose evidence could

have swung the pendulum one way or the

other, but was not called by the

prosecution, it cannot  C  be said the

first four appellants' versions may not

reasonably be substantially true. There

is indeed no evidence or nothing to

gainsay it. See Lesolame v. State [1997]

B.L.R. 60, C.A., per Tebbutt J.A.; see

also Seneviratne v. R. [1996] 3 All E.R.

36; Adel Muhammed El. Dabbah v.

Attorney-General of Palestine [1944]

A.C. 156.

I therefore allow the appeal of the

first, second, third and fourth

appellants, set aside their convictions

in respect  D  of counts one and two of

the summons and quash the sentences

imposed.

I now turn to the appeal of the fifth

and sixth appellants, each of whom, as

indicated above, was convicted for

unlawful dealing in Government trophies

but under different sections of the

Act.  E 

It is important to note that the

conviction of each of these two

appellants rested solely on a confession

statement alleged to have been made to

His Worship, T. Rannowane Esq., a

magistrate, and a Motswana, then

stationed at Selibe-Phikwe. I emphasise

his citizenship and the fact that he

speaks and understands Setswana. The

importance of this aspect of the case

would be evident when I come to consider

the sixth appellant's case.  F 

Another common factor in respect of

these statements is the procedure

adopted in receiving them in evidence.

As could be seen from p. 8 of the record

of proceedings, the admissibility of the

statements was preceded by the following

dialogue:

 "Prosecutor: I have two more documents

that I would like to tender by consent -

a statement by accused 5 - Keitheng

Mhalapitsa to a judicial officer on 6

September 1993. These would be in two

sets - There is the Setswana (original)

and a  G  typed copy of the Setswana

original. There is the original English

translation and a typed copy of that

English translation and its typed copy.

 Then with respect to Mazebedi

Ramapulane, the accused 6, I also have a

statement made by him to a judicial

officer dated 6 September 1993

consisting of an original Setswana

version and its typed copy as well as

the original English translation  H 

typed version and its typed copy.

 Defence Counsel: Those statements it is

true they are going in by consent as

statements made by accused 5 and accused

6 to a judicial officer. But we are not

admitting that the contents of those

statements were true. This is the only

qualification.

1997 BLR p1216

GYEKE-DAKO J

 Court: Statements by accused persons to

a judicial officer are admitted and

marked as follows:  A 

  Keitheng Mhalapitsa (Accused 5) -

Exhibit O.

  Mazebedi Ramapulane (Accused 6) -

Exhibit P."

 (My emphasis.) 

Let me say at once that unlike civil

proceedings where rules are made

enabling parties to put in documents by 

B  consent, in criminal proceedings, the

admissibility of documentary evidence is

strictly regulated by enactments.

Another principle to be borne in mind is

the distinction between admissibility

per se, of a document and the weight to

be attached to the contents of the

document sought to be tendered in

evidence. Restricting myself to criminal

proceedings, the admissibility per se,

of a document depends on production from

proper custody and  C  relevance. This

is a general rule.

In this country, the admissibility of a

confession statement made by an accused

is governed by section 228 of the

Criminal Procedure and Evidence Act

(Cap. 08:02).

In view of Mr. Phumaphi's submission in

support of grounds 5, 6 and 7 of the

amended grounds of appeal filed on  D 

behalf of the fifth and sixth

appellants, provisos (i) and (ii) to

subsection (1) of section 228 are of

relevance here, and I quote:

"228(1) Any confession of the commission

of any offence shall, if such confession

is proved by competent evidence to have

been made by any person accused of such

offence (whether before or after his

apprehension and whether on a  E 

judicial examination or after commitment

and whether reduced into writing or

note), be admissible in evidence against

such person:

  Provided that - 

  (i) such confession is proved to have

been freely and voluntarily made by such

person in his sound and sober  F  senses

and without having been unduly

influenced,

  (ii) if such confession is shown to

have been made to a policeman, it shall

not be admissible in evidence under this

section unless it was confirmed and

reduced to writing in the presence of a

magistrate or any justice who is not a

member of the Botswana Police Force." 

G 

It is to be recalled that grounds 5, 6

and 7 relate to the fifth and sixth

appellants. These grounds were not

argued by counsel for the appellants in

any orderly fashion.

The kernel of Mr. Phumaphi's submissions

in respect of these grounds, as

distilled from his heads of argument

submitted to the court and expatiated

upon at length is that:  H 

 "(1) The magistrate a quo misdirected

himself in holding that the statements

made by the fifth and sixth appellants

were voluntary in the face of the

evidence indicating that they were

obtained through duress.

1997 BLR p1217

GYEKE-DAKO J

 (2) the magistrate failed to give

proper or adequate consideration to the

evidence of the fifth appellant

particularly, with  A  respect to

consideration of his blood-stained

clothes exhibited and accepted in

evidence in support of his sworn

testimony touching on the assault

perpetrated on him to induce him to

confess to the commission of the offence

alleged against him in Court (sic) 3

and;

 (3) the learned magistrate misdirected

himself in holding that the statements

made by the fifth and sixth appellants 

B  were confessions since they did not

amount to a plea of guilty."

I now state the evidence adduced before

the court by the fifth and sixth

appellants.

I shall start with the fifth appellant

Keitheng. His evidence in brief is that,

on 5 September 1993, he was invited  C 

from his place of work by Kebareng - a

police officer - to the Bobonong Police

Station. He was taken to room No. 7

where he met Messrs. Ntshese, Ntheetsang

and Pilane, all police officers (it is

to be recalled that all these police

officers were part of the team which

planned the arrest of the first four

appellants). He was immediately put

under arrest. Upon his arrest, he was

asked whether he was Keitheng. He

answered in the affirmative. The  D 

three police officers suddenly pounced

on him. Ntheetsang grabbed him by his

tie. Pilane grabbed him by the right

side of his waist while Ntshese held the

left. Pilane and Ntshese started fisting

him while Ntheetsang chocked him by

tightening his tied. He was asked from

where he obtained the "thing". He

demanded to know the "thing" they were

talking about. This question evoked

intensified assault on him. He was told

he was joking and  E  that he would have

to tell them. He honestly did not know

what they were talking about. The

beatings and suffocation continued until

he started bleeding from the tooth on to

his clothes. He passed out. When he came

round, he found himself naked. He did

not know how his clothes were removed.

He was however given back his blood-

stained clothes. It was then that he was

told that what he was being questioned

about were elephant tusks.  F  He was

taken and shown some tusks. He still

denied knowledge of them. He was taken

to Selibe-Phikwe and placed in police

cells. The interview continued the next

day. He still denied having anything to

do with the tusks. It was then that he

heard Pilane telling Ntheetsang he

should be taken to the bush and be

beaten up out of sight of the public.

Upon hearing this, he decided to accept

whatever suggestion was made to him to

avoid further torture  G  and possible

death at the hands of his tormentors.

The police told him he would be taken to

the magistrate for his statement to be

recorded. They told him to confess to

having bought the tusks from some

Zimbabwean he met on the road and that

he gave those tusks to fourth appellant

to sell for him and further that he was

expecting proceeds of sale. They further

told him that any deviation from these

admissions would result in the

resumption  H  of the torture. He did

not want to go through the ordeal again.

In his own words: "I proceeded to give

the statement. I was not giving it

freely because, I knew if I did not give

it, I would be handed to the police. The

contents of the statement are not true."

After finishing his statement he was

taken back by Pilane and Ntheetsang who

had brought him to the magistrate for

his statement to be recorded.

1997 BLR p1218

GYEKE-DAKO J

They asked him whether he told

magistrate Rannowane what they had told

hin to say. He told them he did. Upon 

A  receiving such assurance from him, he

was released from custody and asked to

go to his village but to report the next

day, which he did. He said under cross-

examination that he did not tell the

magistrate about the assault because he

was afraid that such a statement would

ear him further assaults at the hands of

the police. Immediately after his

release from custody he handed over his

blood-stained clothes to his attorneys

and those  B  are the clothes tendered

in evidence. In short, while accepting

that the contents of the statement were

his, he denies making the statement

voluntarily. He says the duress and

threats shown him by the police and the

prospect of undergoing renewed torture

were still operating on his mind when he

made the statement to the magistrate. He

categorically denied the truth of the

contents of the statement.  C 

The sworn evidence of the sixth

appellant, Mazabedi was inter alia, that

the second prosecution witness - D/Sub-

Inspector Ntalabgwe and other police

officers came to his home at Semolale.

They were in company of the third

appellant, Mmuso. The police asked him

for the leopard skin. He told them he

knew nothing about a leopard skin. They

said he should know because the third

appellant had told them he had given the

leopard skin to him. He still denied

knowledge about a leopard skin.

Whereupon, the police told him he would

be beaten up if  D  he persisted in his

denial. Upon hearing this threat he

agreed to say that he gave the leopard

skin to Mmuso even though the police did

not come with the leopard skin they were

referring to; if that would satisfy them

and save him from being beaten up. The

police arrested him. He continued in his

testimony in-chief as follows:  E 

 "It is true I made a statement to a

magistrate on 8 June 1993. It is true

the magistrate told me I was not under

any obligation to make a statement and

that if I decide to do so, it would be

reduced into writing and would be used

in court as evidence. He asked me if I

wanted to make a statement. I said I

wanted to. I said so because I had been

directed as to what to say when I got to

the magistrate. police who arrested me

had told me to say so. One of them is

that one (PW2). It  F  is him and others

who have been around the premises who

took me to the magistrate. I told the

magistrate I found a dead tiger and I

skinned it. I told him I subsequently

gave the skin to Mmuso. What I told the

magistrate was not true. The police said

if I should tell the magistrate in my

statement that I made it freely and that

once I finish I should return to them. I

never possessed a leopard skin "  G 

Under cross-examination the sixth

appellant said he never possessed any

leopard skin and that the first time he

saw the leopard skin was in court. And

that when he made his statement he was

still in fear because the police said he

should return to them when he finished

his statement. He repeated his averment

that it was the police  H  who told him

to say that he found the "tiger" dead

and that it was he who gave the skin to

the third appellant on 20 August 1993.

It has been noted that the statement of

both the fifth and sixth appellants were

admitted in evidence without a trial-

within-a-trial (voire dire) to determine

whether the statements were voluntarily

made. The learned

1997 BLR p1219

GYEKE-DAKO J

magistrate was in error in finding that

the defence had in each case admitted

the statement and there was  A 

therefore no need for a voire dire to

determine the admissibility or otherwise

of the statements.

I have already stated that in criminal

proceedings the parties are not free to

compromise on procedure. Mr. Phumaphi's

intimation to the court that the defence

"are not admitting that the contents of

those statements are true", clearly

shows that the defence were not making

admissions under section 273(1) of the

Criminal  B  Procedure and Evidence Act

which states that - 

"273(1) In any criminal proceedings the

accused or his representative in his

presence may admit any fact relevant to

the issue, and any such admission shall

be sufficient evidence of that fact."

The above section appears to be the only

section, which, if invoked by the

defence relieves the prosecution from 

C  discharging the onus of proof which

lies on them to the required standard in

respect of the fact(s) so admitted. In

this case what was admitted on behalf of

the fifth and sixth appellants was the

fact that they each made a statement to

the judicial officer; and that they are

not admitting the contents of the

statements as true because they made the

statements under earlier duress offered

them by the police before the magistrate

recorded what  D  they had been told by

the police to say.

In my judgment the mere fact that an

accused had made a statement in the

nature of a confession, does not, in

terms of section 228(1) of the Criminal

Procedure and Evidence Act (reproduced

supra) justify the conclusion that it

was made voluntarily and therefore

admissible under the section. For there

are instances where  E  statements in

the nature of a confession have been

voluntarily made to an authorised

officer (in this case a judicial officer

or magistrate) but rejected on account

of the operation of an earlier threat or

improper inducement on the mind of the

accused: See R. v. Collier (1844) 3 Cox

C.C. 56; R. v. Meynell (1834) 16 E.R.

1100; R. v. Sherrington (1838) 168 E.R.

1101; Sparks v. R. [1964] 1 All E.R. 727

at 740 P.C.  F 

See also R. v. Ndoyana & Another 1958

(2) S.A. 562; Mosotho Masina & Another

v. The State [1983] B.L.R. 237. See also

State v. Mokwena [1990] B.L.R. 1

The onus lies on the prosecution to

prove the voluntary nature of the

statement beyond reasonable doubt. They

must prove beyond all reasonable doubt

that the earlier threat or undue

influence has dissipated. The court

must  G  be satisfied beyond reasonable

doubt that such proof has been met by

the prosecution before admitting the

statement. This can only be achieved

through a voire dire (trial-within-a-

trial), which was not done in this case.

For, if at the end of the day the

statement is rejected, no more would be

heard about the statement and its

content.

I must not however be understood to say

that all statements in the nature of a

confession must be subjected to a  H 

voire dire before being admitted in

evidence. Far be the case. For, as

indicated earlier, where the admission

is made by the defence in terms of

section 273(1) of the Act supra, there

obviously would be no need for a trial-

within-a-trial. The statement would then

have been admitted in association with

the evidence intended to be given by the

judicial officer.

1997 BLR p1220

GYEKE-DAKO J

In this case, the very cross-examination

of the second prosecution witness - Sub-

Inspector Ntalabgwe gave  A  sufficient

indication that the defence intention

was to challenge the admissibility of

the statements made by the fifth and

sixth appellants to the magistrate and

necessitated the conduct of a voire dire

to determine the voluntary nature of the

statements.

The magistrate's reason for admitting

the fifth appellant's statement as

having been voluntarily made are stated

in pp. J24-J27 of the judgment and I

find myself compelled to reproduce them

verbatim and at considerable  B  length:

 "The next question is whether this

statement is admissible in evidence.

According to the evidence, when the

police had obtained an explanation from

accused five, they decided to take him

before a judicial officer. The

statement, having been  C  reduced into

writing in the presence of a magistrate

is admissible. This is one of the

conditions laid down under section 228

of the Criminal Procedure and Evidence

Act and well explained in Masina and

Another v. State [1983] B.L.R. 236 C.A.

But I should say that Masina's case is

materially distinguishable from the

present in the sense that an objection

was tendered when the state sought to

submit the statements as part of their

evidence and that issue had to be

resolved  D  through a trial-within-a-

trial.

 In the instant case this statement was

admitted by the defence, but that does

not relief (sic) the prosecution of

their duty of establishing that

statement was made freely and

voluntarily. The onus here still rests

with the prosecution to prove beyond

reasonable doubt that their statement

was made freely and voluntarily.  E 

 In the statement in issue it is clear

that accused had been told that he will

be brought before a magistrate and he

even mentions this. He further states

that police had recorded a statement

from him and I believe this is the

statement that led to his being brought

before a Magistrate. He knew he was

before a Magistrate and he was told that

he was giving the  F  statement out of

his own free will. He was further told

that the statement would be used in

court. So that, in my observation

accused knew where he was; the purpose

of being there and he was willing to

make such statement.

 From the evidence of PW2 accused was

cooperative. He gave an explanation and

it was as a result of that explanation

that they took him to a magistrate. He

confirmed to the Magistrate that he had

given a statement to the police and that

the  G  statement he was giving before

the magistrate is the very statement

that he had given to the police. So,

that on its own it shows voluntariness

on his part. But most importantly

accused 5 herein told the magistrate

that he was giving the statement freely

and out of his own will.  H 

 Accused 5's evidence that he was

subjected to assault prior to giving the

statement should be rejected and there

are many reasons for so saying. He

agrees that he knew he was before a

magistrate who warned him that he was

not obliged to make a statement; that he

can only do so out of his own accord and

that that statement will be used in

legal proceedings. He answered that no

one had threatened or induced him to

make the statement. But, having

1997 BLR p1221

GYEKE-DAKO J

 answered all in this fashion can

accused person now somersault and say he

had been forced by the police to make

the  A  statement? I do not believe so.

 The assault that he talks about is not

an ordinary one. We all heard him

describe in detail the format that the

accused took and he produced blood-

stained and worn out clothing. If we

were to believe him, this is an

aggravated assault - so aggravated that

he believed police may kill him. The

question is - did he have any physical

injuries subsequent to this  B  assault?

 There were two men, Pilane and Ntshese

beating him with fists and a third

Ntheetsang who chocked him. We would

expect serious injuries, and not light

ones from an assault of this nature.

Accused person says he bled from his

tooth. It is important to recall that

accused 5 was taken to the magistrate in

a short space of time after his arrest.

But I am entitled to  C  state that the

judicial officer observed no weakness on

the part of the accused and that was why

he stated that he was in his sound and

sober senses. Had accused been that much

assaulted it would have been easy to

notice that he was under great stress,

but the Magistrate did not notice this.

 He failed to reveal the assault to the

Magistrate. He found no reason to

apprise the Magistrate of the problem

that he had  D  with his tooth. Accused

person was released almost shortly after

giving his statement and it seems he

failed to take himself to a medical

institution for treatment. He was not in

and I do not see what could have stopped

him from going for medical treatment.

This is a man who was battered so much

that he was stripped naked and he lost

his consciousness. I find it self-

defeating of accused to say this and at

the time fail to apprise the Magistrate

or go for medical treatment. I find  E 

myself completely unable to accept

accused's evidence of assault by the

police.

 He has tendered his clothing, torn and

possibly blood-stained. The whole truth

is that we must keep away from

speculation. To say accused's clothing

was torn during his assault is false and

beyond that it will be pure

speculation.  F  Many explanations can

be tendered in an attempt to reveal why

the clothing is in this fashion.

 Myself I am satisfied that the

statement before us is a confession;

that it was freely and voluntarily

given; that there was no undue influence

and that accused person was in his sound

and sober senses this aspect being

confirmed by the statement which is

free-flowing and setting out events as

they would occur in the course of the

deal. I am satisfied the  G  prosecution

have proved that this statement is

admissible beyond any reasonable doubt."

After perusing the above extracts from

the judgment, I find myself in complete

agreement with Mr. Phumaphi that the

magistrate misdirected himself on the

issue of the admissibility of the

statements made by the fifth and sixth 

H  appellants. He completely shifted the

onus of proof on the appellant.

I have already stated that where the

alleged confession statement is not

admitted by the defence in pursuance of

section 273(1) of the Act, its

admissibility or otherwise must be

determined through a voire dire. A trial

1997 BLR p1222

GYEKE-DAKO J

in a mini-trial or voire dire, follows

the same procedure as observed in our

accusatorial system of criminal  A 

justice. As acknowledged by the learned

magistrate, the onus rests on the

prosecution to prove the voluntary

nature of the confession statement

beyond all reasonable doubt. This they

can only do by calling viva voce

evidence. The accused is entitled to

lead evidence including calling

witness (es) in the discharge of the

evidential burden which rests on him.

That burden, we all know, is discharged

on the balance of probabilities.  B 

In this case no evidence was led by the

prosecution on the issue of

admissibility of the statements to

justify a finding that the prosecution

have proved the admissibility of either

the fifth appellant's or the sixth

appellant's statement, let alone proof

beyond reasonable doubt.

In my view, the magistrate, by basing

his findings on inference drawn from the

fifth appellant's evidence, erred in  C 

shifting the onus of proof on the

appellant.

It is apparent from the portions of the

judgment quoted below that the learned

magistrate gave the same treatment to

the case of the sixth appellant as he

did to the fifth appellant:  D 

 "The prosecution evidence is that

accused 6 was arrested through the help

of accused 3 and that subsequent to his

arrest, he was presented before a

judicial officer where he recorded a

statement, exh. 25. Accused 6 himself

agrees that after his arrest he

submitted a statement to a judicial

officer. Though he submitted the

statement, he contends that he did not

do so freely and voluntarily as police

dictated the statement to him and

threatened to beat him.  E 

 Deciding whether this statement is a

confession or not is not a hassle. The

statement indicates that there was a

transaction in the sense that the tiger

skin was given to accused 3 to sell.

That indicates that there was a deal.

 The subject matter is a tiger skin.

This is trophy as defined under section

2 of the Act.  F 

 The statement indicates that the tiger

was skinned after it had been discovered

dead. The animal and its products were

therefore unlawfully obtained. I

therefore hold that this statement is a

confession in the true sense. The

statement was reduced into writing in

the presence of a magistrate and the

last question to decide is whether it

was freely and voluntarily  G  made.

 This statement was tendered by the

prosecution as part of their evidence

and was admitted, with no objection from

the defence. Deciding whether this

statement is admissible on ground of

being voluntarily submitted by accused

is an easy task for the court. The

circumstances preceding the statement

are that consequent upon accused 3's

arrest, accused 3 gave an explanation

and actually led the police to the

arrest of accused 6. Accused 6 gave an

explanation and in turn he  H  was taken

to a judicial officer to make the

statement.

 Accused 6 accepts that he knew he was

before a magistrate. He accepts that he

was told that he was under no obligation

to make a statement and that he may do

so out of his own free will and further

that such statement

1997 BLR p1223

GYEKE-DAKO J

 would be reduced into writing and would

be used in court as evidence. This

simply means accused knew where he was; 

A  that the choice was his and that

whatever he said would be used in

evidence for or against him at his

trial. He therefore cannot expect this

court to turn round and say he did not

know where he was and his purpose. The

court must make intelligent and

practical decisions in its application

of the law.

 Accused 6 says police came with accused

three to tell him that they wanted a

skin and that they threatened to beat

him.  B  PW2 also states that they were

led by accused 3 to Mowana cattle-post

where they arrested accused 6. It seems

to me that accused 3 who apparently

present never heard any threats being

extended to the person of accused 6. The

atmosphere in this investigation seems

to me to have been cordial - one thing

leading to the other, and I cannot see

how accused 6 was ever threatened, or if

he was, how that could have been

operating on his mind at the time he

submitted the  C  statement.

 The truth is that had there been any

threat, he would have found it opportune

to mention this to the magistrate. But

he never mentioned such threat for there

was never any. Instead he chose to

reveal a statement, precise and to the

point and it cannot be true that the

statement was a making of the police.

This statement reveal the events as they

come and go.  D  From all angles this

statement appears to have been made by

an insider - a person with the full

knowledge of the events and seriously

speaking noone could have expected the

police to tell the man this and that to

the magistrate and it all come out

making sense.

 Accused person cannot seriously

maintain that this statement was not

given freely. Everything else points to

the contrary.  E  His evidence that

police threatened him is a figment of

his imagination and I am entitled to

reject it as I now do. I cannot even see

any reason why police would behave in

consistently by beating others very

seriously and only verbally threatening

others to make them confess.

 I believe it is opportune on my part to

mention that with this case, police have

a catch in their hands. They

meticulously  F  planned and executed

the arrest of accused persons who are a

strong chain. I say this because there

are 6 men in all involved in this case

and there are various counts simply

because the trophies were changing

hands.

 Accused persons know each other. In

particular accused 6 and accused 3 are

long time friends and that is why

accused 6 gave the tiger skin to accused

3. Accused 3 in turn brought in three

others. Accused 5 gave the ivory to

accused 4.  G  Accused 4 brought in

three others. This is definitely a

strong team and police need commendation

rather than condemnation for what they

did.

 In conclusion, I am satisfied that the

prosecution have proved this case in

accordance with the standard of our

law."  H 

It is quite clear from the above

extracts that the learned magistrate

erred in not adverting his mind to the

principle that a confession statement

induced by an earlier threat or undue

influence can only be admitted, if and

only when the prosecution have proved

beyond reasonable doubt that the earlier

threat or undue influence has completely

dissipated before or at the

1997 BLR p1224

GYEKE-DAKO J

time of making the statement to the

judicial officer. In my judgment, each

case must be decided on its own facts. 

A  Bearing in mind the uncontroverted

testimony of the sixth appellant that he

acted under threat from the police, it

was erroneous for the magistrate a quo

to have relied on the appellant's

explanation to arrive at the conclusion

that:

 " His evidence that the police

threatened him is a figment of his

imagination and I am entitled to reject

it as I now do."  B 

As I have already said, to do this would

be tantamount to shifting the burden of

proof that the statement was voluntarily

made on the appellant. The statements of

both the fifth and sixth appellants

ought not to have been admitted and made

use of in convicting the appellants.

This is even more so since their

convictions were based  C  solely on the

alleged confession statements.

There is another reason why the sixth

appellant could not have been convicted

on his statement. The statement to the

judicial officer speaks of a tiger skin

and not a leopard skin. It is an offence

under the Wildlife and National Parks

Act for anyone to unlawfully deal in

leopard skin. The Act does not cover

tiger skin. It was faintly argued by  D 

the State/respondent's counsel that

there are no tigers in Botswana and

furthermore, that in Setswane language

the same word "nikwe" is used for both

"leopard" and "tiger". Mr. Phumaphi

disputes this and says that "nkwe" and

"Lengau" are the Setswana names for

"tiger" and "leopard" respectively. Be

that as it may, I do not think the

resolution of this issue is a pre-

condition for this court's decision in

this appeal. Sitting as an appellate  E 

court, the court is bound by the record

of proceedings of the court a quo.

Furthermore, the magistrate who recorded

the statement is Motswana. He recorded

the statement first in Setswana before

translating it into the English

language. The word "tiger" was used in

the English version. The learned trial

magistrate is also a Motswana. He was

alive to the fact that the skin referred

to in the sixth appellant's confession

statement was that  F  of a "tiger" and

not a "leopard". Hence he repeatedly

referred to it as a tiger skin in his

judgment. There was indeed an error in

the interpretation and application of

the Act under which the sixth appellant

was tried and convicted. His appeal

should succeed on this ground alone.

Even if I am wrong on the issue of the

admissibility of the fifth and sixth

appellants' confession statements (and

I  G  am firmly of the opinion that I am

not), there is a further reason upon

which the fifth and sixth appellants'

present appeal should succeed. It is as

follows: The fifth and sixth appellants

were each convicted on his confession

statement. The enabling enactment is

section 241(2) of the Criminal Procedure

and Evidence Act which stipulates:

 "Any court which is trying any person

arraigned before it may convict him of

any offence alleged against him in the 

H  indictment or charge by reason of any

confession of that offence proved to

have been made by him, although the

confession is not confirmed by any other

evidence:

 Provided that the offence has, by

competent evidence other than such

confession, been proved to have been

committed." (The emphasis is mine.)

1997 BLR p1225

It needs no strong emphasis to say that

since the third and fourth appellants

whom the learned magistrate found  A  to

be in cahoots with, and acted as agents

for the fifth and sixth appellants

respectively in their unlawful dealing

in the trophies forming the subject-

matter of the charges against them, have

been acquitted, and there being evidence

aliunde, that the offences have been

committed, the appeals of the fifth and

sixth appellants should succeed, and it

is so ordered.  B 

The order of this court is as follows:

 1. The appeal of each appellant be

allowed in toto.

 2. The convictions be set aside and

sentences imposed quashed.

 3. The court a quo's order for

forfeiture of the trophies to the State

be confirmed.

 4. The motor vehicle be released to the

owner.

Appeals allowed and convictions and sentences set

aside.

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