Botswana: Court of Appeal

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all died from burning: there were no other injuries to account for their deaths. The Trial Court found that the deaths were caused by unlawful harm and that the person or persons who committed the unalwful act had the necessary malice aforethought. This was obviously right. The central issue in the case was then who committed the crimes. The learned Trial Judge acquitted the second accused, Sibanda, on all counts and he therefore is not concerned in what follows. He provided no evidence for or against Appellant. On the 13th December 1979 the Trial Court convicted the Appellant on each of the counts, found no extenuating circumstances and sentenced him to death on each count of murder and to life imprisonment on the arson count.
3.       By notice dated 7th January 1930 the Appellant entered an appeal to this Court, the grounds being in effect that the State had failed to implicate the Appellant in the crimes.
4.       As soon as the police got to the scene of the fire, as earlier stated, they immediately cordoned off the premises and carried out a thorough search. A strong odour of petrol hung over the building. They saw a .22 rifle lying just outside the bedroom window but did not then handle it pending a finger-print examination. They also saw a bare footprint near the gun. A small piece of fabric caught in the wire mesh of the fence was recovered and just beneath the window on the outside was a discoloured patch which appeared to be a mixture of sand and molten plastic material. The molten mass
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revealed a distinct streak of green suggesting that a green plastic container may well have been used. Nothing else of significance was then seen or found. When the gun was later handled by the police it was discovered that there were three live rounds in the breech and magazine.
5. An intensive police investigation swung into action immediately. The investigation squad brought in for questioning several people who they thought might have had a grudge against the deceased or other reason for liquidating him. It appears that prior to his death the deceased was actively engaged on an investigation into a large scale motor vehicle theft and smuggling operation across the border with South Africa and the police had their suspicions as to who the operators were. It is possible that it was decided to screen all these people. Whether in this context or otherwise, the Appellant, one Kably and one Matthew Tirelo were brought to the Police Station and interviewed. The Appellant was placed under arrest on suspicion of complicity in tho murders at 0.00 a.m. on the Monday, 24th February, that is less than six hours after the deceased had been killed. He has been in custody ever since. Tirelo was brought in on the 25th February and Kably on the 27th. Appellant was not interrogated on the 24th. The police were no doubt busy with other enquiries. On the 25th Appellant was questioned about his movements on the night of the 23rd. Whether the Appellant told the police about his collecting a green plastic petrol container from Tirelo on the evening of the 23rd or that it was su!^sequently given to one Thomas for use as a water

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container on the trip which Appellant's truck allegedly was about to make to Johannesburg we do not know because it is always possible that the information concerning the transaction with Tirelo could have come from another source. What we do know is that this was the effect of the evidence given by the accused in Court. It may even be possible that the Appellant told the police he had given the witness Ellen Sekati, but whom he identified as Mrs Mokgatle, a lift to the Holiday Inn on the night in question. But again he testified to this in Court himself. Evidence was led at the trial that the Appellant had a few days prior to the murder gone to the police station to complain about the delay in returning to him another truck which was being held as an exhibit in a criminal case in which he was the accused.
6.       According to Assistant Superintendent Mathibela's evidence it was the Appellant who on the 27th February led Him to Kably's house to point out the owner of the gun. This, if correct, would obviously have been an important breakthrough for the police in their investigations and it will be necessary to return to this evidence later. Kably was summoned to the police station where presumably he admitted ownership of the gun but it seems claimed to have given the gun to Appellant a month or so previously in order to have some repair work done to the weapon.
7.       It is a matter of evidence that Appellant's finger prints were not found on the gun and it is convenient to state here that the only evidence which connected the
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Appellant with the gun was that of Kably and of Assistant Superintendent Mathibela. It should be pointed out that no evidence was given by the finger print expert regarding his findings when he tested the gun for prints and it has been assumed in favour of the police that in fact the gun had been wiped clean. I pause here to reflect upon the meaning of this. A person who removes all traces of finger prints from a gun must subsequently take the precaution of wearing gloves when he handles it and in doing so he must have it in his mind that the weapon may fall into police hands. Such a person would have to be a careful planner who had thought out his moves well in advance and so leaving nothing to chance. I will refer to this later in this judgment.
C. Whatever transpired between the Appellant and the
police it woul'l appear that the results of their interviews
with him were not found by the police to be very
satisfactory. The learned Chief Justice found that the
police employed a fellow remand prisoner, one Roy Morris,
as an agent to procure evidence against the Appellant as
respects the crimes of murder and arson. I cannot disagree
with this finding and quite correctly the evidence of
Morris was viewed with the greatest caution. Morris was
called as a witness for the State and amongst other things
gave evidence of being asked by Appellant to smuggle four
notes written by Appellant out of the prison and to deliver
them to the persons to whom they were addressed. In
addition there was a fifth note written by Morris, the
         j—„+e, ^f t.jh-ir'h were dictated by the Appellant and upon

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which the Appellant allegedly had written the word "utete" in his own hand for purposes of identification. The circumstances in which these notes were found on the person of Morris by the Police have been dealt with very fully by the Trial Judge and it is not necessary fcr me to go into the matter afresh, save to say that it is quite apparent that an arrangement existed between Morris and the police* It was found however at the trial despite the evidence of a handwriting expert to the effect that one of the notes came from the hand of the Appellant that all five notes had probably been written by Morris himself. We have examined these notes very carefully as respects writing, general characteristics such as the sloping of lines downwards from right to left, the habitual use of the word "dont" written without the apostrophe, and as respects content which must have been peculiarly within the knowledge of the Appellant, and we have concluded that the Appellant wrote all the notes except the one which Morris claimed to have written himself. I shall return to these later.
9. Two other notes were found on the person of the Appellant and evidence was led that upon their discovery he on two separate occasions tried to grab them and destroy them by swallowing them. I might remark here that this amounted to a very energetic performance by the prisoner to keep evidence from the police and is totally inconsistent with his making the admission involved in pointing out of the house of Kably the owner of the gun. These will also be included in my later remarks.

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10.      On the 6th March there was a remarkable development.
According to Assistant Superintendent Mathibela the
secon' accused Sibanda on that day led him to the scene
of the crime and there pointed out on the ground a few
paces from the fence a green plastic cover ani the cut
out top of a green plastic petrol can. It was never
explained how these articles carr.e to be missed in the
police search. Moreover it transpired that there were
no finger prints whatsoever on this fairly large piece of plastic. The comments of the learned Trial Judge on this aspect of the State evidence are fully justified anO like him I can only find that this exhibit was "planted^,: at the scene but it seer.is unlikely to my mind that Morris would have been the one responsible since he would have no means of knowing what the significance of this piece of plastic was. It is certainly not evidence against the Appellant and its significance lies in this, that someone was endeavouring to provide false evidence for some purpose which is not readily discernible. It is noteworthy that the same care in removing finger prints was observed here as in respect of the gun but in this instance since the Appellant was in detention this precautionary measure cannot be attributed to him.
11.      Finally in the course of the trial a significant
piece of evidence emerged. Defence had asked that
Tirelo be made available to give evidence. Apparently
it was hoped that Tirelo would support Appellant in his
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claim thai: although he did possess a green petrol container_f it was still in his possession and so could not have formed part of the molten mass found outside the window. Tirelo in evidence said that it iras correct that at the beginning of the year he had borrowed a petrol container from Appellant. He had taken it from Appellant's vehicle and he kept it for about a month. When shown Appellant's container in Court Tireic said it was in all respects identical save for certain marks apparently cut across the grip of the container. Tirelo was adamant that if the marks had been there when he borrowed the can he would have noticed them. In fact the marks are quite noticeable if one examines the grip. The Appellant's case was that he never had any other green petrol container. The Trial Court does not appear to have resolved this dispute.
'2. Needless to say the Appellant in evidence strenuously denied complicity in the crimes, '-"he Trial Court made no specific findings on the demeanour and credibility of the Appellant but found justification for positively rejecting his testimony on the basis of the circumstantial evidence ano of findings of fact made by the Court. Mr Skelemani in an able presentation of the State case strongly supported the Trial Court's judgment.
13. The circumstantial evidence upon which Mr Skelemani claimed he was entitled to rely are as follows -(a) The fact that Appellant was being investigated by the police in regard to the crime of theft of a
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motor vehicle and that he had been deprived of his truck for some time; the truck being an exhibit in a case which was not yet concluded. Mr Skelemani said that this evidence was relevant to motive.
(b)      Certain incriminatory passages in the letters given to Roy Morris coupled with the fact that the Appellant had lied about the authorship.
(c)      The fact as foxinC by the Trial Court that Appellant had led Mathibela to the owner of the gun (Kably)?
(d)      The fact that at the beginning of the year the Appellant had had a green plastic container which was not the container before the Court and that the container now claimed by the Appellant is merely a cover-up.
1-1. In regard to (a): The alleged motive for so heinous a crime is hardly convincing. The Appellant knew that the motor vehicle was in the hands of the Magistrate's Court pending judgment in the Appellant^:s case and the police were not responsible for withholding the vehicle from him.
15. In regard to (b): In evaluating the incriminatory features of the notes it is relevant to bear in mine- that they were written to certain named iaembers of Appellant's family and this was on the 1st March, that is after the interrogation of the Appellant. He therefore knew what the evidence was that the police had accumulated against him. There is no doubt that there is in certain of the letters

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an attempt to influence the statements which the police might obtain from members of the faaily and others. The reason for this is to be found in one of the notes directed to Matthew Tirelo where Appellant said "they are fereing me really" meaning "they are really frightening me". The effect of Appellant's requests would tend to distance him from the case being made againot him. At the same time he affirms "I am ha-py because I did not kill that person" and the prime theme of the letters sas that the family shoulrT collect money in order to hire a lawyer even if that involved selling furniture. It is not altogether surprising to fino that a person in the desperate situation of the Appellant that he should suygest to members of the family how to deal with awkward questions likely to be put to them. However there can be no doubt that Appellant was trying to influence his family and also the man Tirelo as to what the police should be told. This coulr:; properly be regarded as indicative of guilt.
1*. But tn-2 letters have another dimension. When the Appellant said he was being really frightened it is easy to see in what connection for he was trying to get the evidence relating to his dealings with the green plastic container suitably modified to a form less relevant to the police enquiries. To his mind the fact that he had collected such a container from Matthew Tirelo on the eve of the murder was the evidence which really incriminate:"¹ him. It seems never to have occurred to him that if he was connected with the gun found at the scene of the

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murder he would be in real danger. But surely if he had had the gun in his possession for the month preceding the murder it must have been kept at his house and would thus have been seen by his family, and if he were the person involved in the killing he would have known of its being abandoned at the scene and that it must therefore have been founr⁵ by the police. In these circumstances one would have expected the Appellant to have manifested the keenest anxiety in resoect of the gun and to have made every endeavour to modify the evidence which, because of thH gun^;s presence in his house, could be expected to be given by his wife and son. But the notes omitted any mention of the gun and the only justifiable inference is that if the Appellant knew about the gun, which from his evidence he appears to have done, having been informed by the police, its significance was entirely lost upon him. Not only does this support the Trial Court's finding that the story told by Kably as to the circumstances in which he passed the gun to Appellant was a concoction but it leads one to believe that Kably never gave the gvn to the Appellant at all. I do not think that a guilty mind would have had to wait until the matter was explained by the police before appreciating the significance of the evidence of Kably. What I have just said tends to undermine Mathibela's evidence that the Appellant took him to the gun's owner on the 27th February. The letters also tend to negative any suggestion that Appellant was involved with gangsters engaged in a lucrative rac3<et of motor

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vehicle theft and smuggling. Otherwise it is hardly likely that he would find it necessary to give instructions to sell up his few sticks of furniture to pay for a lawyer. Moreover the class of gangster suggested does not have to resort to importuning people for guns. Then again after the police had intercepted the letter to Appellant's wife about the green container they must surely hs.ve interviewed her an'3 she must have given the same story as she gave in Court. Otherwise she would have been challenged. The driver Thomas must have existed and the story of his taking the container to Johannesburg must be true. To my mind, on balance the letters favour Appellant's innocence.
17. In regard to (c)- The Trial Court made a final finding of credibility in favour of Assistant Superintendent Mathibela when dealing with the pointing out of Kably's house. In his judgment the learned Chief Justice said "The Police Officer Mathibela is clearly very experienced and there is no doubt in my min ;'. that he would not tell a deliberate lie to the Court. It was when Counsel for the Defence had been cross-examining him at length on the supposed misconduct of the police that he gave this answer (which dealt with why he had only come out with the evidence that Appellant had indicated Kably's house to him and why this evidence foun-i no mention in the Prosecutor's docket nor in the Summary of Evidence served on the

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Appellant before trial nor in the witness's evidence in chief). I not the impression initially that Assistant Superintendent Mathibela wanted his own back on Counsel for having attacked the integrity of the force of which he, Mathibela, is a proud member and in whose service he had gained recognition an.¹ honours from the State." This is not however an express finding that the Appellant led the police to Kably's house and I think the evidence of this must be excluded. If it occurred, and the only evidence we have is that on record, it is arguable that it offends against the principle nemo tenetur se ipsum prodere but even if the contrary opinion were to prevail no reliance should in the circumstances of this case be placed upon evidence that first saw the light of day when the witness was being cross-examined. For did Mathibela tell the Court everything about the incident? Mathibela's evidence gives the impression that such pointing out must have been indeed a breakthrough for the police and that the incident led them to the owner of a gun an¹, thus established that Appellant knew the owner and knew the gun; that it was in consequence of this pointing out that Kably was pulled in for questioning and the direct implication of the Appellant via Kably. 3ut was this the intended effect of Mathibela^rs evidence? I doubt it very much. Kably was brought in on the 27th February and it was on the 27th that Appellant allegedly pointed out the house. It may be that Mathibela was confused
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when giving evidence as to the sequence of the events. According-to the Appellant, and there is a possibility that this is true, Kably was one of the suspected smuc7glers and would have been brought in for questioning quite independently of anything Appellant might have pointed out. Kably would have identified the gun and come out with the "cock and bull" story involving the Appellant. Appellant was obviously not one of Kably's gang otherwise Kably would not have dared to implicate him for fear of reprisals in other directions. On that basis the pointing out by Appellant was not so important to the prosecution case; the area was probably already covered in Kably's statement to the police. Furthermore an experienced police officer like Mathibela may well have wished to avoid problems of admissibility and receivability of the evidence of the pointing out. 3y section 228 of the Criminal Procedure and Evidence Act (Cap 08 : 02) any fact discovered in consequence of an inadmissible confession may be proved in evidence. Nevertheless the receivability of such evidence is still a matter of discretion. To have attempted to use the evidence might well have raised the question of Mathibela's treatment of Appellant in the course of interrogation. The police probably had Kably's statement involving the Appellant and Mathibela may well have thought that the evidence of the pointing out would not be worth the possible trouble involved. I can think of no other explanation for Mathibela's action in withholding the evidence, first from the

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Prosecutor, second frorc Appellant (in the Summary) and third from the Court in his evidence in chief. It may be as the learned Chief Justice says in his judgment that iMathibela became resentful at the attack being made upon the police and he blurted this piece of evidence out without thinking. After all, Mathibela was the chief investigating officer. In the circumstances I must repeat that I do not think any reliance can be attached to the pointing out episode.
18.      In respect of (d): I cannot find that the Trial Court resolved the dispute of fact between Tirelo ana the Appellant. I do not think this Court can find that tha container borrowed by Tirelo did not have the marks on the grip. It would be quite easy for somebody holding the container by the grip to overlook the marks. In addition there is the probability that the police questioned the wife of Appellant who testified on his behalf and if she tcld them as she must have done- that the container with the marked handle was the one recovered from Tirelo before she could have been influenced by the Appellant the chances of that story being true are increased. The alternative is that the police never questioned her at all but while this might be regarded as a serious omission on their part it can in no way reflect upon her evidence.
19.      Finally I return to the absence of finger prints from the gun and from the cut out portion of a green