LETELA v.

THE STATE 1985 BLR 445 (HC) Citation 1985 BLR 445 (HC) Court Court of Appeal, Lobatse Judgment June 5, 1985 Judge Maisels P, Baron JA and Amissah JA Annotations [zFNz]Flynote Criminal procedure - Evidence - Corroboration - Accomplice - Mutual corroboration - Rule against mutual corroboration no longer regarded as a general one - Danger of jointly fabricated story Rule to be applied in such case - Complainant alleging having been taken by A. to appellant's house for purpose of abortion - A. admitting accompanying complainant to appellant's house for that purpose - Complainant aborting - Trial magistrate relying on evidence of A. as corroborating that of complainant - Whether A. an accomplice - Whether danger of jointly fabricating story Whether magistrate relying on A.'s evidence misdirection. Criminal procedure - Evidence - Corroboration - Accomplice - Nature of corroborative evidence Evidence by itself not sufficient to support conviction - Tendency of evidence indicating truthfulness of accomplice's evidence and not falsely implicating accused - Complainant alleging appellant having performed abortion on her with sharp instrument - Appellant admitting treating complainant for abdominal pains with herbal remedy - Issue as to nature of treatment - Medical evidence proving procurement of abortion by introduction of sharp instrument - Whether medical evidence capable of corroborating that of complainant. [zHNz]Headnote The appellant was charged with the unlawful use of force to procure the miscarriage of a woman. He was convicted and sentenced to two years' imprisonment wholly suspended for three years on the usual conditions. The facts as alleged by the prosecution were that the complainant, being pregnant, told her friend, the prosecution's second witness. The latter took her to the appellant, whom the complainant had never met. Having been told by the complainant that she was pregnant and wanted an abortion, the appellant performed an abortion on her at her home with a sharp instrument. There was an incomplete septic abortion and the complainant had to be operated upon at a hospital. 1985 BLR p446 The doctor who performed the operation testified that an unsterile instrument had been inserted through the cervix and through the wall of the uterus to the abdominal cavity, causing the severe abdominal infection he found. The prosecution's second witness, the complainant's friend, also testified at the trial, admitting that she had taken the complainant to the appellant's house for the purpose of an abortion, and that she had, after the complainant came out of hospital, sent P30,00, being the balance of his fee, to the appellant. The appellant's evidence was different. He said, inter alia, that he was a herbalist by profession. He confirmed that the complainant and the second witness for the prosecution went to his house and that the complainant alone went a second time. He said that she complained of stomach pains and that he gave her a herbal remedy. The magistrate considered the question of corroboration, including the question as to whether the testimony of one accomplice could corroborate that of another. He held that the evidence of the prosecution's second witness corroborated that of the complainant. The appellant appealed to the High Court which, dismissing the appeal against the conviction and enhancing the trial court's sentence, held that the doctor's evidence, although confirming that of the complainant, could not be regarded as corroboration as it did not implicate the appellant. On further appeal to the Court of Appeal, Held, dismissing both the appeal against conviction and the appeal against enhancement of sentence: (1) the magistrate misdirected himself when he relied on the evidence of the second

witness for the prosecution as corroborating that of the complainant in that on the evidence the second witness for the prosecution was an accomplice. And although the rule against mutual corroboration was no longer regarded as a general rule it certainly applied if the danger of a jointly fabricated story could not, as in this instance, be excluded. D.P.P. v. Kilbourne [1973] 1 All E.R. 440, H.L. cited. (2) Corroboration was evidence which, although not of itself sufficient to support a conviction, tended to show that the accomplice was telling the truth that he was not falsely implicating the accused. In the instant case, the accused had admitted that he had treated the complainant, and the issue, therefore, was whether the complainant or the appellant was telling the truth as to the nature of the treatment. On that issue the doctor's evidence that someone did what the complainant said the appellant did was clearly capable of corroborating her. Sello v. The State, Court of Appeal (Criminal Appeal No. 20 of 1984), unreported, applied. Cases referred to: (1) Monageng v. The State [1983] B.L.R. 254, C.A. (2) D.P.P.v. Kilbourne [1973] A.C. 729; [1973]2 W.L.R. 254; [19731 1 All E. R. 440, H. L. (3) Sello v. The State, Court of Appeal (Criminal Appeal No. 20 of 1984), unreported. (4) State v. Kgano 1981 B.L.R. 186. (5) Ramaloko v. The State [1983] B.L.R. 204, C.A. [zCIz]Case Information APPEAL against conviction and sentence in a case in which the appellant was charged on three counts alleging the unlawful use of force to procure the miscarriage of a woman. The facts are fully set out in the judgment. 1985 BLR p447 [zJDz]Judgment BARON J.A. The appellant was charged in the magistrate's court on three counts alleging the unlawful use of force to procure the miscarriage of a woman contrary to section 160 of the Penal Code (1973 Rev.). He was acquitted on two counts and convicted on the third, and sentenced to two years' imprisonment wholly suspended for three years on conditions. On appeal to the High Court the appeal against conviction was dismissed and the sentence was enhanced by the reduction of the term suspended from two years to 18 months, the result being that the appellant would serve an effective term of six months. The appellant appealed to this court against conviction and against the enhancement of the sentence by the High Court; at the conclusion of the hearing the court dismissed both the appeal against conviction and the appeal against the enhancement of the sentence, and indicated that it would hand down detailed reasons later. These are the reasons. The facts according to the complainant were these. An unmarried girl of 19, she found that she was pregnant. She told a friend, a woman of 28 the second witness for the prosecution, who took her to the appellant; she herself had not. known the appellant before. That first meeting was on 21 June 1984. She and the appellant went into a bedroom in the appellant's house, where he asked her what the problem was; she told him she was pregnant. He asked whether she wanted an abortion and she said she did. He told her to come back the next day at 2.00 p.m., which she did; the appellant drove her in his car to her home, where he performed the abortion on her with a long sharp instrument. He also gave her a black medicine to drink to stop the flow of blood. The following day the complainant was sick and her stomach was painful. A foetus came out of her vagina which she threw into the toilet. On 26 June the appellant came to check on her condition. The next morning her brother took her to hospital, where on 28 June she underwent a vaginal and abdominal operation. She was discharged from hospital on 16 July. The appellant's version was very different. He told the court he was a secondary school teacher and a herbalist by profession. He confirmed that the complainant came to his house with the second witness for the prosecution in June 1984, and that she came again alone on the following day; he said she complained of stomach pains and that he gave her a herbal remedy. It seems clear that he gave her this remedy only on the second visit because he explained that he drove her home because he normally did this, especially in the evening, after giving a patient treatment. But the complainant was not challenged when she said that the second visit was at 2.00 p.m.,

and the appellant's explanation does not explain why he did not give her the herbal remedy on the first day and then drive her home. The second witness for the prosecution confirmed that she went with the complainant to the appellant's house and that the two went into a bedroom. She confirmed that the complainant told her she was pregnant. She said that after the complainant came out of hospital she sent P30 to the appellant which the complainant had given her. The doctor who operated on the complainant gave evidence. He said he examined the complainant and found signs of severe abdominal infection; he operated on 28 June. He found that there was an incomplete septic abortion; there was also a big abscess in the abdomen in the region of the uterus and signs of inflammation. In the uterus there was a penetration of an instrument. He was able to say with certainty 1985 BLR p448 BARON JA that a short instrument had been introduced through the cervix and through the wall of the uterus to the abdominal cavity. The instrument was not sterile, which was the cause of the infection of the uterus and the abscess in the abdomen; he also found infected placental tissue in the uterus. This case raises a number of important issues. The learned magistrate, directing himself on the law concerning accomplice evidence, said this: "The first requirement is to And out whether an accomplice is stating the truth. Then the court must look for evidence aliunde as per section 238 of the Criminal Procedure and Evidence Act. If there is other independent evidence, then corroboration is sought for the material particulars. This includes the question whether the testimony of one accomplice can corroborate that of another." This approach is basically correct; it reflects the two-stage approach explained in Monageng v. The State [1983] B.L.R. 254, C.A. I have some difficulty however with the learned magistrate's reference to section 238 of the Criminal Procedure and Evidence Act (Cap. 08:02) (1973 Rev.) (which provides that a court may convict on the single evidence of an accomplice provided that the offence has been proved by other evidence to have been actually committed). This case is not one in which the only evidence against the appellant is that of the complainant. The learned magistrate correctly directed himself that the consideration of the question of corroboration includes the question whether the testimony of one accomplice can corroborate that of another. Although the rule against mutual corroboration is no longer regarded as a general one it certainly applies if the danger of a jointly fabricated story cannot be excluded (see for instance D.P.P. v. Kilbourne [1973] 1 All E.R. 440 (H.L.)); yet the learned magistrate relied on the evidence of the complainant's friend, the second witness for the prosecution, as corroboration. The second witness for the prosecution does not say that she knew how the appellant intended to procure the abortion, nor does she say she was subsequently told how it was done-according to her, the complainant said merely that the appellant had "helped" her; but she admits that she took the complainant to the appellant for the purpose of an abortion, and she says she later sent him the balance of his fee. She was clearly therefore an accomplice in the commission of an offence under section 160 of the Penal Code, and since this is selfevidently not a case in which the danger of a jointly fabricated story can be excluded the learned magistrate misdirected himself in accepting the evidence of the second witness for the prosecution as corroboration of that of the complainant. But quite apart from this, the second witness for the prosecution's evidence is not, in my view, satisfactory. She said that after the complainant's discharge from hospital she received P30 from her and sent it to the appellant; this fact was relied upon by the magistrate, but I found the second witness for the prosecution's evidence on this point improbable and unconvincing. More importantly, she said it was not she who introduced the complainant to the appellant (which was the complainant's evidence), but the other way round. I think it is improbable that the second witness for the prosecution was telling the truth on this point either. Quite apart therefore from this witness being an accomplice, her credibility is in my view very doubtful. iI therefore disregard her evidence. 1985 BLR p448

BARON JA The matter does not however end there. The learned magistrate relied also on the evidence of the doctor who operated on the complainant. His evidence proved conclusively that the abortion was procured by the introduction of a sharp pointed instrument like a knitting needle. The magistrate, having said that the complainant's evidence was consistent and straightforward and having found her to be a truthful witness whose evidence he believed, said correctly that the medical evidence supported the prosecution case that an abortion was done. But when the matter came on appeal to the High Court the learned judge said of the doctor's evidence: "this evidence cannot be regarded as corroboration because it does not implicate the appellant although it must be said that it does confirm the evidence of (the complainant)." With respect, this was an error. Whether an item of evidence sought to be relied on as corroboration is material and implicates the accused depends on the circumstances of the particular case and frequently on the nature of the defence. For instance, on a charge of rape if the accused denies all knowledge of the matter and alleges that he is being falsely or mistakenly implicated, medical evidence that the complainant was the victim of an assault and of forcible intercourse cannot be corroboration of her allegation that it was the accused who assaulted and raped her; but if the accused admits the intercourse but asserts that the complainant consented then that very same medical evidence is very material, because it is clearly corroboration of the complainant's evidence that the intercourse was without her consent and the fact that it was the accused who had intercourse with her is common cause. What then is the issue in the present case? The appellant admits that the complainant and her friend came to his house; he says she complained of stomach pains, whereas she says she asked him to terminate her pregnancy. He says he gave her a herbal remedy to relieve her stomach pains; she says he told her to come back the next day, when he would "help" her. It is common ground that on the following day the appellant drove the complainant from his house to hers; he says he did this because it was his practice to drive his patients home after treatment, whereas she says they went to her house where the appellant performed the abortion with a sharp instrument. The issue is not therefore one of identity; the issue is whether the complainant or the appellant is telling the truth as to the nature of his "treatment", just as in the rape example the issue is who is telling the truth as to the nature of the admitted intercourse. On the issue of the nature of the treatment in this case the doctor's evidence that someone did what the complainant says the appellant did is clearly capable of corroborating her. As this court was at, pains to point out in Sello v. The State, Court of Appeal (Criminal Appeal No. 20 of 1984), unreported, corroboration is evidence which, although not of itself sufficient to support a conviction, tends to show that the accomplice is telling the truth and that he is not falsely implicating the accused. And at p. 6 of the cyclostyled judgment in that case we stated the essential test in these terms: "that the corroborative evidence and the circumstances of the case are such ... that independently of the evidence of the accomplice the danger that the accused is being falsely implicated has been excluded and that it is safe to rely on the evidence of the accomplice." 1985 BLR p449 BARON JA It remains then to examine the evidence and the circumstances of the case and in particular the nature of the defence and the facts deposed to by the appellant himself. We must not of course lose sight of the fact that the investigation at this stage is into the question whether the court, notwithstanding that it believed the complainant, might have been deceived by her plausibility and apparent honesty. In what way might the complainant have deceived the court? Clearly, only as to the identity of the person who performed the abortion, because she was undoubtedly pregnant (the doctor's evidence as to the placenta) and a sharp instrument was undoubtedly pushed through the wall of her uterus. if someone other than the appellant performed the abortiontheoretically it could have been done by the complainant herself, or the second witness for the prosecution, or by someone who has not been mentioned in the case at all-this would involve a remarkable series of events: first, that the complainant, seeking relief from stomach pains and with no thought of abortion, should have failed to tell the appellant she was pregnant; second, that the appellant, being asked to treat stomach pains, did not give the complainant his herbal

remedy on that first visit; third, that the herbal remedy was of such potency and rapid effect that the complainant could not take it at the appellant's house and walk home; fourth, that the appellant should feel it necessary to drive the complainant home rather than give her the remedy to be taken at home; fifth, that having given the complainant a remedy to relieve stomach pains, and without any further communication from her, the appellant should feel it necessary to visit her four days later to check on her (the appellant did not admit this, but he did not deny it nor was the complainant challenged on the point); sixth, that within a day or two of consulting the appellant the complainant should decide to terminate her pregnancy; seventh, that having made that decision, she did not ask the appellant to give her something for that specific purpose but chose instead to go to someone else. The wild improbabilities in such a scenario are self-evident; it is totally fanciful. Equally fanciful is the possibility that someone else performed the abortion before the complainant went to the appellant, that she went to him only when she began to feel ill as a result of the abortion, and that she did not even tell him she was bleeding (I can accept that she might not tell him she had had an abortion). I am satisfied that the danger that the appellant has been falsely implicated has been excluded and that it is safe to rely on the evidence of the complainant. I am satisfied also that if the magistrate had not misdirected himself in relying on the evidence of the second witness for the prosecution, but had relied only on the evidence and circumstances proper to be taken into account, he must inevitably have convicted. This is therefore a proper case in which to apply the proviso. For these reasons the appeal against conviction was dismissed. I turn to the question of sentence. The magistrate expressed the view that a prison sentence was a proper punishment for this offence; however, taking into account the mitigating factors, including the fact that the appellant was a diabetic "who will not get the required food in prison", he imposed a wholly suspended sentence of two years. There is nothing in the record to support the statement that the appellant would not get the necessary food in prison; and there is no warrant for such an assumption; it would have been perfectly possible, and indeed proper, for the magistrate to direct the prison authorities to ensure that the 1985 BLR p451 BARON JA medical officer keep a close watch on the appellant's health and diet. In making the assumption that the appellant would not receive the proper food in prison the magistrate must be held to have misdirected himself. However, the learned judge in the High Court does not appear to have proceeded on this basis. Having dismissed the appeal against conviction he referred to the court's powers under section 9 of the High Court Act and continued: "I am minded to exercise my powers under this section because I regard inducing abortion as a very serious crime that should normally call for an immediate custodial sentence." He then gave counsel for the appellant the opportunity to make submissions on the question of sentence and offered to adjourn to enable him to take instructions. After counsel had consulted the appellant and addressed the court further the learned judge said: "(Counsel) has referred me to the case of State v. Kgano 1981 B.L.R. 186 where a suspended sentenced passed for a similar offence was not interfered with. I take the view nonetheless that persons who induce abortions in women should go to prison immediately for that offence where it is done for financial reward as was the case here. I consider that the learned magistrate erred in suspending the whole of the sentence." Let me say at once that, although the learned judge no doubt gave due weight to Kgano's case, a decision of the High Court, he was entitled to take a different view, particularly if the facts were different. However, the real basis of the attack on the learned judge's enhancement of the sentence was that he interfered with the magistrate's discretion for no better reason than he himself would have imposed a "somewhat different" sentence. It is trite that an appellate court is not entitled to interfere with the exercise by a trial court of its discretion simply because it takes a somewhat more serious view of the offence; I refer to what I said in Ramaloko v. The State [1983] B.L.R. 204 at pp. 206-207, and in particular that an appellate court: "should be even slower to increase a sentence [than to reduce one] if the effect will be to

send to prison a person whom the trial court had not sentenced to imprisonment or to return to prison a person already released; the impact of the sentence in such circumstances is far greater than if the same sentence had been imposed by the trial court. But even if one were to ignore this consideration, at the very least an appellate court should not interfere, in the absence of an error of principle, unless the sentence was manifestly inadequate." The learned judge did not proceed on the basis of an error of principle, and he did not say in terms that the sentence was manifestly inadequate; but that he in fact held this view is implicit in what he did say. He described the offence as -" a very serious crime that should normally call for an immediate custodial sentence", and later he said again that persons who induce abortions should go to prison immediately "where it is done for financial reward"; (I understand the learned judge, when he uses the word "immediately", to mean that the sentence should be to an effective term of imprisonment). An effective term of six months' imprisonment with a further term of 18 months suspended cannot be regarded as merely a "somewhat different" sentence from a wholly 1985 BLR p452 suspended sentence of two years; there is a very substantial difference between going to prison and going to prison only on a future breach of the conditions of suspension. I am therefore satisfied, from both the language he used and the sentence he imposed, that the learned judge regarded the sentence imposed by the magistrate as manifestly inadequate or as it is sometimes expressed, disturbingly inappropriate. Having said that, however, I feel constrained to say also that where a judge decides to interfere with a sentence imposed by a magistrate he should take care to state clearly the basis on which he does so; he should say whether he regards himself as being at large because of an error of principle or other misdirection, or whether he interferes because the sentence is manifestly excessive or manifestly inadequate. For the foregoing reasons the appeal against the enhancement of sentence was also dismissed. MAISELS P. I agree. AMISSAH J.A. I agree. Appeal against conviction and enhancement of sentence dismissed. S. M. A. S.