THE INDICTMENT/SUMMONS

STATE v. BORI NKWE 1974 (1)

The Accused was charged with theft by a servant contrary to Section 277 which is a more
serious charge than theft simpliciter and carries an enhanced sentence. A charge which
fails to make the allegation that the Accused is a servant does not disclose the offence
created by section 277 of the Penal Code and renders the Accused liable to punishment for
common theft.

REGINA v. BOTSHUME

Committal for sentence.

STATE v. BOTOLAMANG MADI 1972

The Accused had been convicted but the charge was defective in that it failed to disclose
an offence.
Held:
(i) That a failure of justice was inevitable because the charge failed to disclose an
offence.
(ii) That the conviction and sentence should accordingly be set aside.

STATE v. D NAKEDI 1973 (1)

The Accused pleaded guilty to a charge of driving a vehicle whilst under the influence of
liquor. The charge did not allege that the driving took place on a public road and the
Prosecutor's summary of facts also failed to include that allegation.
Held:
That, although the charge was defective in failing to make the allegation that the offence
took place on a public road the proviso to the definition of public road applied to overcome
the omission, but the failure of the Prosecutor to make this avertment in his summary of
facts invalidated the conviction.

THOMAS MACHOLA v. REGINA 1964-1967

The appellant was convicted in the Subordinate Court of the First Class, Francistown
District, of receiving stolen stock contrary to section 4 of the Stock Theft Proclamation
(Chapter 24). It was alleged, on appeal, that the charge was defective. It was further
alleged that the cattle recovered by the police had not been identified as the cattle stolen -
Held -
(i) the charge, which alleged that the cattle had been received "during 1965" was bad
both for uncertainty and because it lacked the necessary averment that the
alleged receipt of the stolen stock was "otherwise than at a public sale";
(ii) that there was insufficient evidence, taking into consideration the failure to
produce the cattle and other considerations, to support the charge.
Appeal allowed.
DUPLICITY

STATE v. NLEYA 1973

The Accused had been charged with 15 charges of theft on different dates. Instead of
charging 15 separate counts there was an omnibus charge which included all the offences.

Held:To include separate offences in one omnibus charge is irregular.

THE STATE v. MATLHOGONOLO MASOLE

Where counts are bad for duplicity objection should be taken before plea. An Appeal Court
will not interfere on that ground alone unless the accused was prejudiced.

Joinder of Offences

STATE v. MOSIMANEGAPE SELEBOGO BACKSTYLE

The Accused was charged on two counts in the same indictment. On the first count he was
charged with theft of a bicycle and on the second count he was charged with assault some
eight months later.

Held:It was irregular to charge unconnected counts in the same indictment

R V MANSFIELD
The appellant was employed as a kitchen porter by a company at the P Hotel and lived at
the W Hotel which was used by the company as a hostel for its employees. On 12th
December 1974, in the early hours of the morning, a fire broke out in the W Hotel which
resulted in the death of seven persons. Soon after the alarm was given the appellant was
seen in the street outside the hotel wearing day clothes whereas most of the occupants of
the hotel had had to escape in their night attire. When the appellant was questioned by the
policy about the fire he told lies. On 19th December, in the evening, a fire broke out in the
P Hotel, outside the storeroom where the appellant worked. The appellant made no
attempt to put it out. Again he lied to the police when asked about the fire. In relation to
those two fires there was overwhelming evidence that the appellant had been in the
vicinity of the fires, had had ample opportinuty to start them and had behaved afterwards
in a manner arousing suspicion. During the night of 28th-29th December a third fire broke
out in the staff quarters of the P hotel. A waste paper bin from the appellant's room was
found near the seat of the fire and there was evidence that he had been in the vicinity of
the fire. Again he lied to the police when questioned about the fire. All three fires had
been started by sprinkling inflammable liquid on to a carpet and setting fire to the liquid.
The appellant was charged in one indictment, in counts 1, 9 and 10, with arson in respect
of the three fires. At the trial he submitted that there should be separate trials in respect of
each fire because the alleged similarities between them were not sufficiently striking to
justify admission of the evidence relating to all of them in respect of each one of them.
The judge refused to sever the indictment and the trial proceeded. At the end of the
Crown's case counsel for the appellant sought to submit that there was no case to answer
on the ground that it would be unsafe to convict on the evidence then before the court. The
judge refused to allow counsel to make that submission. In his summing-up the judge (i)
directed the jury to ask themselves whether they were sure that all three firest had been
started by the same person, and (ii) in relation to count 10, the charge in respect of the last
fire, invited the jury to consider a schedule of the company's employees compiled from the
evidence given by a number of witnesses, for the purpose of deciding whether it was the
appellant who had started the last fire, and thereby brough in, in relation to count 10, all
the evidence given at the trial instead of directing the jury to have regard only to the
evidence relating to count 10. The trial was a rehearing and the judge wanted the jury to
return a unanimous verdict to save the expense and inconvenience of a third trial. After
retiring for 5 3/4 hours the jury were unable to agree and returned to court. The judge
asked them to retire again to try to reach a unanimous verdict. The jury retired for a
further hour but were still unable to agree. Thereupon the judge exhorted them that it was
desirable that they should return a unanimous verdict since if they did not 'great public
inconvenience and expense' would result, i e there would have to be a third trial. The
appellant was convicted on all three counts of the indictment. He appealed against
conviction contending (i) that the judge should have severed the indictment, (ii) that the
had been wrong in refusing to allow counsel's submission of no case to answer, (iii) that
he had misdirected the jury and (iv) that he put pressure on the jury to return a unanimous
verdict on the ground of public inconvenience and expense when, if the jury had
disagreed, it was improbable that there would have been a third trial.

Held - The appeal would be dismissed for the following reasons --

(i) The test whether it was correct to admit evidence of similar facts was whether the
evidence went beyond showing a tendency to commit crimes of the kind charged and
was positively probative of the crime charged; only if the evidence of similar facts
could not be explained away as coincidence did the question of admitting it as a
method of proof fall to be considered. In the circumstances, there was a sufficient
degree of similarity between the three fires to justify admission of the evidence in
respect of all the fires in considering each court. Accordingly, the judge had been
correct in rufusing to sever the indictment.

(ii) The practive, at the end of the Crown's case, of inviting the judge to rule that on the
evidence called by the Crown it would be unsafe for the jury to convict and that the
case should therefore be withdrawn from the jury, was well-established. Accordingly,
counsel has been entitled to make his submission and the judge should not have ruled
that he could make it. To that extent there had been an irregularity in the trial but it did
not amount to a material irregularity within s 2(1)© of the Criminal Appeal Act 1968
(wee p 140 c g j, post).

(iii) The judge's invitation to the jury to ask themselves whether all three fires had been
started by the same person was not by necessary implication an invitation to disregard
any evidence other than evidence of similarity between the fires, and therefore was not
a misdirection. Furthermore, in the circumstances of the case, the judge had been
entitled, in relation to count 10, to invite the attention of the jury to the other evidence
in the case in order to establish the identity of the person who had started the last fire
and accordingly the invitation to the jury to consider the schedule of employees had not
been a misdirection (see p 142 f g and p 143 h j, post);

(iv) Although it would have been better if in his exhortation to the jury the judge had omitted
any reference to public inconvenience and expense, the exhortation did not amount to
pressure on the jury to return a unanimous verdict. Accordingly in that respect there had been
no irregularity
LUDLOW V METROPOLITAN POLICE COMMISSIONER

The appellant was seen climbing out of a window in a staff room at a public house.
Examination of the staff room showed that all drawers had been opened and that it had
been searched. On 5th September, at another public house in the same town, the appellant
refused to pay for more than one of three drinks that he had ordered and proferred money
in payment. When the relief manager rang up 9s 9d on the till (the price of three drinks)
the appellant snatched back the 10s note, punched the relief manager in the face and ran
away. In due course the appellant was charged on the same indictment with the two
offences: ie attempted larceny (count 1) and robbery with violence (count 3).He was
convicted on both counts. On the questions whether: (i) the counts were properly joined in
the same indictment; and (ii) whether the trial judge ought to have ordered a separate trial
in respect of each count,

Held - (i) The two counts were properly joined in the same indictment, because --

(a) two offences could properly constitute a 'series of offences' for the purposes of r 3 a
of Sch 1 to the Indictments Act 1915

(b) in determining whether offences were offences of 'a similar character' for the
purposes of r 3 it was proper to have regard to considerations of law and of © in order
to establish a 'series' of offences of a similar character (for the purposes of r 3) there
must be some nexus between the offences, ie a feature of similarity which in all the
circumstances of the case enables the offences to be described as a series (see p 569 e
and f, p 573 j, and p 576 g, post); and

(d) the offences charged had the same essential ingredient of actual or attempted theft
and they involved stealing or attempting to steal in neighbouring public houses at an
interval of only 16 days; accordingly they were similar in law and in fact and there was
sufficient nexus for them properly to be joined as a 'series of offences of... a similar
character' under r 3 (see p 569 e and f, p 574 e, and p 576 g, post).

(ii) The trial judge could not be said to have exercised his discretion on wrong
principles in refusing to order separate trials, because --

(a) the principle that a joinder of counts relating to different transactions was in itself
so prejudicial to the accused that such joinder should never be made cannot be held to
have survived the passing of the Indictments Act 1915 (see p 569 e and f, p 575 f and p
576 g, post);

(b) a trial judge had no duty to direct separate trials under s 5 (3) of the Indictments Act
1915 unless in his opinion there was some special feature of the case which would
make a joint trial of the counts prejudicial or embarrassing to the accused and separate
trials were required in the interests of justice ; dictum of Lord Goddard CJ in R v Sims
[1946] All ER at 699 approved; and there was no multiplicity or complexity in the
offences charged and no difficulty for the trial judge in dealing separately with the two
charges in his summing-up such as to constitute a special feature rendering a joint trial
prejudicial or embarrassing to the appellant.
R V HARWARD (1981) 73 CR APP R 168

Charged with a first count of conspiring to use cheque cards to obtain money fraudulently
from banks. Second count of handling stereo equipment that was found in his possession
shortly after it had been stolen.

Court of Appeal, held - The joinder of both counts in the same indictment was unjustified
and was therefore unlawful.

- The offences were not found on the same facts.

- Therefore there was no sufficient nexus between the offences for them to form part of a
series or of the same offences.

JOINDER OF OFFENDERS

REX V MEYER 1948

A passenger was killed as a result of a collision between two motor-cars. Both drivers were
charged in the same indictment with culpable homicide. One of them was convicted and the
other acquitted. On an appeal and on a review,
Held, though it was an irregularity to have charged the two accused jointly, as in the
circumstances there had been no failure of justice and no prejudice to the accused, that the
appeal and review should be dismissed.

R. v. ASSIM
Questions of joinder, be they of offences or of offenders, are matters of practice on which
the court has, unless restrained by statute, inherent power both to formulate its own rules
and to vary them in the light of current experience and the needs of justice (see p. 886,
letter D, post); and there is no rule of law that the court has not jurisdiction to try two
defendants together on an indictment containing only two separate counts, each being a
count against one defendant alone (see p. 887, letter C, and p. 883, letter G, post).
As a general rule, it is no more proper to have tried by the same jury several offenders on
charges of committing individual offences that have nothing to do with each other, than it is
to try before the same jury offences committed by the same person that have nothing to do
with each other. Where, however, the matters which constitute the individual offences of the
several offenders are on the available evidence so related, whether in time or by other factors,
that the interests of justice are best served by their being tried together, then they can properly
be the subject of counts in one indictment and can, subject always to the discretion of the
court, be tried together. Such a rule includes cases where there is evidence that several
offenders acted in concert but is not limited to such cases.

 
Separate Trials

S V KGOTANE AND ANOTHER (1973) 1 BLR 71

The Accused were charged jointly. One pleaded guilty and the other not guilty. The Accused
who pleaded guilty was then called to give evidence against the other Accused without
having been sentenced.

Held:

1 . That there should have been a separation of trials.

2 . That the Accused who pleaded guilty should have been sentenced before giving evidence
against the other.

S V NTEBELE (1979 – 80) BLR 92

The first Accused pleaded guilty and the Second Accused not guilty. At the prosecutor's
request the Court convicted First Accused and sentenced him; thereafter First Accused was
called to give evidence against Second Accused. It was argued on appeal that the trial of
Second Accused was irregular in that there should have been a separation of trials and
Second Accused's trial should have proceeded before a different judicial officer.

Held:There was no irregularity in the procedure adopted.

MARETWANG AND ANOTHER V REGINA 1964-1967 B.L.R. (CA)

Criminal Appeal.

On the joint trial of four accused on a charge of murder, three accused pleaded not guilty.
Pleas of not guilty were accordingly entered in respect of the three accused, and a plea of
guilty in respect of the fourth. Thereupon application was made for a separation of trials and
was granted. Immediately thereafter the presiding Judge changed the plea of the fourth
accused to not guilty, and set aside the order for separate trials:

Held the failure to separate the trials was prejudicial to the accused who had pleaded not
guilty, and was an irregularity.A detective sergeant stated in evidence that in the course of his
investigations, he had found a tin in the hut of one of the accused, and that that accused
volunteered the information that the tin contained human flesh. The evidence was admitted
after objection by the defence:

Held the evidence had been improperly admitted.The two appellants had been convicted of
murder and sentenced to death. Two other accused, tried with them, had also been found
guilty but the Court had in their cases found extenuating circumstances, and they were
sentenced to terms of imprisonment. They did not appeal. The remaining facts relevant to this
report appear from the headnote and the judgment.

R v ZONELE AND OTHERS 1959 (3) SA 319 (A)

All three of the appellants at first pleaded not guilty to the charge. First appellant
subsequently altered his plea to one of guilty. This was at a stage before any evidence in the
case had been led. The trial thereafter proceeded in the form of a joint trial of all three
appellants. This was irregular for since first appellant had pleaded guilty, there was no further
issue between him and the Crown.

Held:

Where one or more accused pleads guilty whilst one or more pleads not G guilty there should
be a separation of trials. Although there is no statutory provision making such a course
compulsory, it is an established and prudent practice, authorised by section 155 of Act 56 of
1955. Its purpose it to save those who have pleaded not guilty from being prejudiced.
All Union legislation applies in the Transkeian Territories unless specifically excluded. Even
if the true view is that it does not apply unless extended thereto, Act 56 of 1955 has been so
extended.
As section 329 (1) of Act 56 of 1955, as amended, deals with punishment H in special
situations of 'aggravated circumstances', it applies, to the exclusion of the punishment
provisions in sections 2 and 211 in the Transkeian Penal Code. It follows that the Court has
power to impose the death sentence in the circumstances prescribed in the later Act.
There is no reason why a judical officer, in deciding what particular form of punishment will
fit the criminal as well as the crime, should not be informed of subsequent convictions,
because of the light they may throw on the form of sentence that will be the most appropriate.
Where a trial Judge has convicted an accused of robbery and found that there were
aggravating circumstances, and then has to decide whether sentence of death is a proper
punishment, he is entitled to take into account subsequent convictions and sentences for
serious crimes (including robbery) in order to inform himself as to the proper sentence to be
passed.
Further, per RAMSBOTTOM, J.A., RUMPFF, A.J.A., concurring: It is desirable that the
facts which the Crown intends to prove as constituting aggravating circumstances should be
set out in an indictment of robbery. It might be a good practice to go further and, in addition,
to allege specifically that the accused is charged with robbery (or with housebreaking with
intent to commit an offence) in which aggravating circumstances were present.
SPLITTING OF CHARGES

STATE VS MAMPATI BELANG 1968 – 70 BLR 35

The Accused was convicted of reckless driving on Count 1 and of drunken driving on Count
2 arising from the same set of circumstances - He was sentenced to 12 months imprisonment
- He was a first offender and a serious degree of intoxication was not proved.

HELD: (i) That there was a splitting of charges and the Accused should not have been
convicted on both counts.

(ii) That the sentence was excessive and should be reduced to a fine of R60 or 60 days
imprisonment and the Accused's driver's licence should be suspended for three months.

STATE VS SIZE MAKAUSU AND ANOTHER 1968 – 70 BLR 333

Both Accused were convicted on two Counts of arson and child-stealing and Accused No. 1
was convicted, in addition, of assault causing bodily harm. The Magistrate sentenced them to
2 years imprisonment on all counts but ordered that the sentences were to run concurrently.
The house which was burnt belonged to Accused No. 2. It appeared that the offences
committed by the Accused were bound up with the disappearance of a child in circumstances
suggesting medicine murder. On review,

Held:

( a) That in the circumstances of the case the Accused were correctly convicted of Arson
although it was Accused No. 2's own house which was burnt.

( b) That there was no splitting of charges although the offences all arose from the same set of
events.

( c) That because of the other circumstances connected with these crimes the sentences
imposed were grossly inadequate and should be increased.

( d) That the sentences would be increased to 3 years on each Court to run concurrently.

( e) That the Accused would be given leave to make representations to the High Court on the
question of the increased sentences.

STATE V MODISE ALIAS MAWANA 2007 (3) BLR 105

The accused was charged with four counts of attempted murder and one count of arson. The
accused pleaded not guilty.
Held: (1) Save for a few minor inconsistencies and immaterial contradictions, the evidence of
the State witnesses was generally clear and straightforward. The State's evidence proved a
prima facie case which warranted that the accused should be called to his defence..

(2) The accused had made a confession and, other than the confession, there was ample
evidence, beyond reasonable doubt, that the offence had been committed. It had therefore
been proved that the accused had committed the offence.

(3) The accused's version of the events at trial was not put to the State witnesses and the
accused did not mention it when making his confession. All indications were that the
accused's version was an afterthought.

(4) The elements of wilfulness and unlawfulness on the part of the accused had been
established. His actions were premeditated and could not be said to have been casual,
accidental or unintentional. His actions were clearly deliberate and purposefully done with an
intended injurious result, which was achieved.

(5) In sentencing the accused, the interests of society, the interests of the accused and the
seriousness of the offence must be taken into account.