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Basson v The State (Criminal Appeal No 5 of 1980) [1980] BWCA 1 (5 December 1980)

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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No 5 of 1980
JOHANNES CHRISTOPHEL BASSON Appellant
v.
THE STATE        Respondent
Mr C L Mercer for the Appellant Mr G R Gareebine for The State
JUDGMENT
Coram : Maisels, P
Dendy-Young, JA Corduff, JA
MAISELS, P
The Appellant in this case appeared before the High Court on eight charges arising out of an incident which occurred on the 29th October 1979. Two of the counts alleged that the Appellant was guilty of attempted murder contrary to section 222 (a) and (b) of the Penal Code; that is counts 1 and 4. Counts 2 and 5 alleged that the Appellant had caused grievous harm with intent contrary to section 232(a) of the Penal Code. These counts were alternatives to counts 1 and 4. Counts 3 and 6 were further alternative counts in which it was alleged that the Appellant had caused grievous harm contrary to section 235 of the Code. Further alternative counts 7 and 8 alleged the occasioning of actual bodily harm contrary to section 252 of the Penal Code.
2/ Section 235

2.
Section 235 of the Penal Code provides that on conviction under that section the person found guilty is liable to imprisonment for 14 years. Section 252 of the Code provides that if a person is found guilty of a contravention of that section he is liable to imprisonment for five years, with or without corporal punishment.
The Appellant pleaded guilty to counts 3 and 6 which as I have already said alleged that he had caused grievous harm contrary to section 235 of the Penal Code and not guilty to the remaining counts. In the result he was found guilty on counts 3 and 6 and on 7 and 8 which alleged that he had committed assaults occasioning actual bodily harm contrary to section 252. He was sentenced after a lengthy trial to five years' imprisonment on each of counts 3 and 6 and two years' imprisonment on each of the two counts 7 and 8, and all these sentences were ordered to run concurrently with the result that the Appellant was sentenced to five years' imprisonment, the learned Trial Judge ordering that the sentences should commence from the 29th October 1979 when the Appellant was taken into custody. He was acquitted on all other counts.
The facts which led up to the prosecution and the conviction are set out in admirable fashion by Mr Justice Hannah who tried the case in the Court below. There is no appeal, and rightly so, against the convictions but there is an appeal against the sentences, it being suggested that the learned Judge had misdirected himself in a manner with which I shall deal presently. It is important, I consider, to set out the facts of this case and it is in the public interest that they shoul':'! be so set out so that persons should have a clear understanding of what occurred.

3.
These facts are set out, as I have said, admirably in
the judgment of the learned Judge a quo. I shall quote
portions of that judgment verbatim and interpose certain
comments of my own in so doing. The learned Judge said that
the acts arose out of "a remarkable incident which occurred
not far from Kobojango Village during the afternoon of
29th October 1979". In his view the events fitted into
three stages. The first occasion began when the accused
landed a light aircraft at a Botswana Defence Force airstrip
near Kobojango during the early afternoon of 29th October
1979. Stage 2 occurred on the road from Kobojango to
Semolala and Stage 3 not far from Kobojango. The judgment
proceeds -
" Stage one began when the accused (Appellant of course) landed a light aircraft containing himself and two young female passengers on the airstrip during the early afternoon of the 29th October. The stop was unscheduled as the accused had intended to fly directly from Johannesburg to Buffalo Range in Zimbabwe/Rhodesia but had lost his way in cloud covering. The landing attracted the attention of a police unit which was engaged in foot and mouth disease control. This group led by Sergeant Batsoma (PW3) went to the airstrip in their Land Cruiser to investigate. After showing the accused his whereabouts and taking possession of his passport PW3 decided to take the accused for questioning by his superior officers at Semolala police station. "
During the course of the trial it appears that some
criticism was levelled at Sergeant Batsoma (PW3) for this
decision, but I agree with the learned Trial Judge when he
says that such criticism was quite unjustified. Indeed,
Mr Mercer, who appeared for the Appellant before us, also

4o
was of the opinion that the police conduct was perfectly in
order. The learned Judge a quo said he could well understand
the decision of the police sergeant to take the occupants
from an aircraft which landed on a Defence Force airstrip for
questioning by more senior officers as to whether the
explanation given to him appeared to be plausible or not. The
learned Judge said -
" Indeed I would be very surprised if such a procedure would not be carried out in almost any country and I do not consider that the accused has any cause for complaint that this happened. ;|
It is clear from what I have already said that I too
take the same view of the facts so far. Then the judgment
proceeds -
" However, he (meaning the accused) was clearly not very happy about the situation he found himself in as he was anxious to continue his flight before nightfall, felt he had produced all necessary documentation and feared that an air rescue operation might be commenced. Nevertheless despite all this he was willing to go to the police station so as to get the matter over and done with. The result was that the accused, his two passengers with their hand luggage went in the open back of the Land Cruiser with three police officers whilst three more sat in the driver's cab and the journey to Semolala began. "
Certain issues arose in the evidence and arise in this Appeal. It was suggested at the trial that the various police officers who were at the airstrip thought the accused was a spy and whilst at the airstrip one had accused him of being one. Without exception they denied this. The source of the suggestion seews to he >-:iss Lind, one of the

5.
passengers. This accusation, according to Miss Lind, was
made at the airstrip. The accused and the other witnesses
denied that such an accusation had been made at the time.
The learned Judge had no hesitation in rejecting that part
of Miss Lind's evidence and I find myself quite unable to
find any ground to say that the learned Judge was wrong in
so doing. He said -
" I have no doubt that had such an accusation been made at this point in time it would have created a considerable degree of uneasiness in both the accused and Miss Williams at a very early stage of events and they would have been unlikely to forget such a matter. "
I agree with this.
There was some cross-examination as to the dress of
the police officers, as to whether it was clear that they
were police, but there is not the slightest doubt that
they were, because the accused himself said in evidence -
" They said they were Botswana Police. I believed that. "
There was also some questioning whether any of the police
identified themselves as policemen. One of them said he
did by producing his identity card. He was corroborated by
other policemen, and the learned Judge believed this
evidence. Here again I see no reason to disagree with his
findings.
The persons then got on to this police lorry for the purpose of going to the police station. The accused had handed over his passport to the police who at that stage certainly had been completely co-operative. They had

6.
shown the accused where exactly he was with the aid of maps. After the party, the police officers together with the accused and his two passengers, set off on their journey to the police station, one of the tyres of the police vehicle had a puncture. This occurred in Kobojango and whilst the wheel was changed it seems that the accused became somewhat impatient. He asked how much further they had to go. He asked for the return of his passport. And he asked if it was still necessary to go to the police station. The police made it clear to him that the journey would continue and the learned Judge finds that it may well be that at this stage he began to plan subsequent events. This is a suggestion and not a definite finding by the learned Judge but it is one that seems to fit in with what happened subsequently, and it seems to mo to throw doubt to put it at its lowest on the suggestion made by Mr Mercer in his argument on behalf of the accused that the accused's actions to which I shall presently refer were actuated by panic.
The passengers gave evidence that during the stop they were told by the accused to say that their destination was Phalaborwa and not Buffalo Range. It does seem to me that he was probably planning something in his mind, to have had something in his mind which was never really cleared up at the trial.
After the v/heel had been changed the journey continued. Certain of the policemen were seated at the back together with the accused. The senior police officer in charge referred to as the Commander was sitting in front with the driver. The judgment proceeds that according to the accused

7.
what happened after the journey continued was this: he
asked for the vehicle to be stopped so that he could speak
to the man in charge. According to his own evidence -
" .... he gave as his reason that he wanted to ask how much further they had to go. After a brief discussion between the officers the reply came back. 'We think you're a spy.' "
The second defence witness, Miss Lind, said there was "some
conversation about spies and an indication that the police
officers didn't believe the story". The other young lady
accompanying the accused referred to this and said that the
accused asked for production of an identity card. This is
in conflict with the evidence of the police, who said that
the accused asked him to stop the vehicle and they refused.
One of the police officers said that the accused asked for
the return of his passport and then suddenly produced a
revolver.
The learned Julge said there was some conversation at this stage and that it is clear that the accused was anxious to stop the vehicle. The learned Judge thought it possible that a police officer did indicate a doubt about the accused's story but he, the learned Judge, entertained doubts as to whether they had accused him of being a spy. It may well be, said the learned Judge, that this was the inference drawn by the accused and his witnesses from what was said. The evidence given by Miss Lind and Miss Williams that the reason for asking the driver to stop the lorry was that they wanted identification that the persons who were taking them to the police station were policemen was, said the learned Ju^ge, neither helpful nor plausible. I agree.

0.
There is no acceptable reason why a further demand should have been made at this stage but it seemed clear to the learned Judge "from the accused's own evidence that he wanted the vehicle stopped before any question of spying, inferred or otherwise," arose. The learned Judge was unable to find any reasonable explanation for such a desire at that time other than that the accused had decided to take over the vehicle and wanted it stopped to enable him to do so. On his own evidence he had already had a conversation with one of the young ladies who accompanied him when the sergeant made it plain that they were intent on taking them to the police station and the learned Judge found himself unable to accept that during the journey the accused thought that another chat with the sergeant would produce any change of mind. In addition the learned Judge was unable to find any reason why the accused, who was in a hurry, should want the vehicle stopped merely to ask the sergeant how much further it, the police station, was. The question could much more easily have been put to the police officers in the back of the land cruiser.
What happened next is really the crux of this case and what happened next is indeed a remarkable thing. The accused apparently was armed with a revolver which he had in his back pocket. (I should perhaps here interpose in considering whether the evidence of the police commander is true as to his reason for taking the accused to a police station, one is entitled I think, to take into account the fact that no attempt was made to search the accused as otherwise the revolver would surely have been

9.
taken away from him at the landing strip. Instead, all that he was asked to do was to hand over his passport which we were informed by Counsel was a South African passport.) The accused apparently stood up, took the revolver out of his back pocket and then started firing shots. The first shot was fired into the ground, and there is no reason to quarrel with this finding. I have no doubt that the first shot was fired while police officers were still in the back of the vehicle. Fortunately for the accused the learned Judge found that the accused did not aim specifically at a constable who was wounded as a result of the first shot. The learned Judge found that it was improbable that the accused aimed at Constable Molod.i, who was one of the persons who was in fact shot. But this may have been as a result of a ricochet. Once the firing started, and it apparently started after the accused had ordered everybody out of the vehicle except the commander, all the police officers, who were unarmed, made it their business to get out of the way of the accused as soon as they could and one can understand this. Here was a man shooting, admittedly not aiming at any particular person, but shooting standing in the back of the lorry and ordering the person in charge to stop the lorry. One asks oneself why this took place.
The learned Judge found that the Appellant acted out of impatience and exasperation and it is sought by the Counsel on his behalf that this was a misdirection. Counsel contended that the accused had acted out of impatience, because he was in a state of panic. He was a soldier in the

m/ Rhodes ian

10.
Rhodesian Army. He was in plain clothes. He was carrying a gun. He had landed in Botswana territory and he thought he may be accused of spying. It had been said that planes apparently had been seen flying around there. There had been trouble between Rhodesia as it then was and Botswana and it was urged by Counsel, as I have said, that the accused acted out of panic. I consider that this is taking much too simple a view of the situation. It is clear from the evidence that what the accused wanted to do was to get his passport back an1! in addition to get back to the aircraft. Counsel's suggestion that he wanted one of the police officers to drive him back to the aircraft, in that he took his gun, fired it with the deliberate object of getting the driver to stop the vehicle, getting his passport back, as it were hi-jacking a Land Cruiser and making his way back to the aeroplane so that he could take off again, was the action of a man acting out of panic is in my opinion unacceptable.
Speaking for myself I think if the learned Judge misdirected himself ho misdirected himself in favour of the Appellent. It looks to me as if th^ Appellant realised that he might be in some sort of difficulty because of the facts I have already mentioned with regard to his own personal circumstances and because of that he deliberately took the action he did. Now the action ho took cannot on any basis be justified. It has already been pointed out and was referred to by learned Counsel, that the police were acting not only lawfully and properly but were acting in a manner which was in accordance with the highest
11/ traditions

11.
traditions of peaceful police action in taking this man, who had landed at a Defence strip, to senior officers at the police station so that a proper investigation could be made into the whole matter. They had not laid a finger on him, not used any force on him, and this man decided in order to get back to the aircraft, and I should add so that no search of his tody should take place, decided deliberately to pull out a revolver and start shooting wildly. He was very lucky indeed that the findings were made by the learned Judge with regard to the question of the more serious charges, very fortunate indeed, and it may be that he was acquitted on those charges because of the wording. Be that as it may, however, one of the bullets struck Constable Molodi in the right buttock. This as I have said before may have been a ricochet and there is no doubt that he shot wildly and he shot wildly in order to get possession of his passport and to enable him to get back to the aircraft. Apart from Constable Molodi another constable was wounded as a result of the accused's shooting but the learned Ju:?ge gave the Appellant the benefit of the doubt to the extent of saying that he probably did not intend to shoot at that person because he was shooting wildly. This is conduct which cannot be tolerated in any society, misdirection or no misdirection on the part of the learned Judge a quo (and I am not suggesting for a moment that the learned Judge was in fact wrong when he said the accused acted out of impatience or exasperation) but assuming that there was a misdirection it remains for this Court to determine whether or not the sentence which I have already set out was in any way excessive. It is
12/ important

12.
important to bear in mind in this connection the facts which were considered by the learned Judge in mitigation. I have already pointed out the maximum penalty which could have been imposed in regard to the serious events of which the accused was rightly convicted. When the accused had gained possession of the lorry he took off with his two girl passengers with him to attempt to return to the aircraft. They apparently lost their way, the Defence Force were put on the alert, and eventually made contact with this Land cruiser which was being hi-jacked by the accused, and shots were fired at the Cruiser. There is a dispute as to how certain injuries sustained by the accused were actually sustained. According to the accused there was a brutal, unjustified assault upon him by Defence officers. They give a different version. The learned Judge took into account the injuries which the accused suffered at the hands of the Defence Force. Whether the Defence Force were justified or not in assaulting the accused is a matter on which I do not think it necessary to comment. But the fact remains that the learned Judge clearly took this factor into account. It must be borne in mind, in favour of the Defence Force that here was a man who had committed a dreadful crime, who was escaping or attempting to escape in a police Land Cruiser, and he was being pursued by the Defence Force who were bent on stopping this man who at all costs was trying to get away. This was a man who by his conduct had demonstrated that he was by no means an innocent babe in

13.
that "you decided to take over a vehicle", meaning the police
vehicle, "by force". He then proceeded to say, "In my view
that was prompted by impatience and exasperation at the
situation you found yourself in and the realisation that you
had superior force of arms", I have already dealt with the
question of impatience and exasperation and I do not wish to
repeat what was said. The judgment then proceeds -
" You wanted to get on your way and to your mind there was no good reason why you should have to complete the journey to the police station and be subjected to further questioning. It was an arrogant view because any reasonable person in your position must have appreciated that the police officers were only doing their duty. "
I shall assume in favour of the accused that he was not arrogant. It may have been that he was afraid that he may have been detained at the police station or might even have been interned. That does not in my judgment afford any excuse for his conduct. The learned Judge came to the conclusion that the accused had decided to use force before any question of being a spy had formed in his mind. The learned Judge was justified in making this finding and he said it was not based en fear of any treatment he may have received.
I will assume in favour of the accused that he might have been afraid of some treatment he may receive. This still does not justify shooting wildly at the police officers doing their duty in a peaceful manner, in hi-jacking the vehicle and generally in behaving in the manner in which he did.
The learned Judge said -
1 A I    "       

14.
" Your decision and its implementation was inexcusable and reprehensivle in the extreme. You realised that the police officers were unarmed and yet not content with producing a loaded revolver you chose to use it. You agreed in evidence that you were going to return to your aircraft at all costs. You have admitted that in using the firearm there was an obvious risk. You have said that your reason for using it was to stop the fleeing police officers and. that you wanted to demonstrate that the revolver had bullets and that you were not bluffing. And yet instead of firing into the air or well away from the officers you fired in their general direction with the result that two were struck by bullets and injured. It is no thanks to you that these unfortunate policemen did not lose their lives. Your conduct in my view was reckless to the extreme and you realised the risks involved. "
I can only say that I agree conpletely with what the learned
Judge has said and which I have just read out. The learned
Judge then proceeded -
" This country will not tolerate the unlawful use of firearms. When firearms are used unlawfully offenders must expect to be dealt with severely. In particular it is the duty of this Court to deal severely with offenders who deliberately use force against the police. The police in this country are not generally armed unlike police forces in many countries and I have no doubt that the Datswana are proud that this is so. This makes it all the more necessary for the Courts to afford the police some protection by stamping hard on those persons who take up arms against the police. It is with these factors in mini that I turn to consider the mitigation so ably advanced on your behalf by your Counsel. "
Before I deal with this I should mention that one of the points made by Mr Mercer before us was that the

15.
learned Trial Judge said he would have been disposed to
impose a shorter term of imprisonment but for the public
interest, that is a deterrent against armed attacks on the
police. In this connection I would like to refer to the
case of State v. Zinn 1S69 (2) SALR p.537. At page 540,
in dealing with the sentence which should be imposed,
Mr Justice Rumpff said -
" What has to be considered is tho triad consisting of the crime, the offender and the interests of society. "
To this I would merely add that the interests of the police
as the guardians of law and order must be considered, and
it is in the pu] lie interest that this should be so.
The learned Trial Judge made a number of assumptions in
favour of the accused and it seems to me that he has gone out
of his way to be fair. He said -
" I am prepared to assume in your favour that you surrendered to the Defence Force without resistance and acknov/ledge and take into account that whilst doing so you received a gunshot wound which penetrated your shoulder and went out through your back. "
Mr Mercer argued that this was a point to be taken in
mitigation. The passage which I have read shows that the
learned Judge did. The learned Judge dealt with the nature
of the injury and said, "I regard the injury and its after
effects as constituting some punishment in itself but of
course that it is not the only question the Court has to
consider". The learned Judge in so saying was perfectly
correct. The learned Judge then proceeded -
" Secondly, I accept that in serving a prison sentence you are likely to suffer more than most inmates of a

16.

Botswana prison. You do not speak the language of this country and you will have no common interests with other prisoners.
Thirdly I take account of your age although I should say that with your background and from what I saw of you in the witness box you have in my view reached a fair degree of maturity. I also take into consideration your good character.
Fourthly I take account of the strange circumstances in which you found yourself on 29th October and the pressures that bore on you. You were clearly very anxious that your journey should continue before nightfall and that a rescue operation should not be mounted.
Fifthly I take account of the fact that a prison sentence will be served far from your family and friends.
These factors amount to strong mitigation and were it not for the question of the public interest I would be disposed to impose a short term of imprisonment. "
In my opinion this was plainly not a case for a short
term of imprisonment. The learned Judge proceeds -
" .... I cannot ignore the public interest. Where a person decides to force his will on police officers doing their duty by the use of a firearm and behaves with reckless disregard as you did for the safety of the police officers, however compelling the mitigation is, this Court would be failing in its duty were it not to impose a substantial sentence.
All I can say is that I agree absolutely with the views
expressed by the learned Judge.
The learned Judge then proceeded -
" I am able to reduce the sentence because of the mitigating features and the element nf rm 4 -i— -

17.
you have already received and it should not be thought by anyone that in normal circumstances an attack on police officers with a revolver will result in such leniency. "
In the result as I have stated the learned Judge sentenced the Appellant to five years' imprisonment on each of counts 3 and 6 and two years on counts 7 and C, making all sentences run concurrently, so that the effective sentence is five years. And as a further example of what I may call over-fairness if anything on the part of the learned Judge having regard to the circumstances of the case, he ordered that each of the sentences was to commence on the 29th October 19 79 when the accused was taken into custody.
I cannot conclude this judgment without expressing my own personal opinion that the learned Judge is to be commended on the fair manner in which the trial was conducted and the manner in which he dealt with every point which could possibly be of value in favour of the Appellant. The conclusion to which he came was an irresistible one and undoubtedly correct. It cannot in my opinion be said that the sentences are in any way excessive. In my judgment this appeal fails and should be dismissed.
(Sgd.) I A MAISELS, President
I agree.         (Sgd.) J R DENDY-YOUNG, Judge of Appeal
I agree.         (Sgd.) P E J CORDUFF, Judge of Appeal
Lobatse
5th December 1980

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