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Sempape v The State (Criminal Appeal No. 22 of 1981 ) [1981] BWCA 15 (9 December 1981)
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IN THE COURT OF APPEAL
OF THE REPUBLIC OF BOTSWANA
Criminal Appeal No. 22 of 1981 (Criminal Trial No. 34 of 1981)
In the matter of:
MOSES SIMON SEMPAPE
Appellant
vs
THE STATE
Coram: MAISELS, P., AGUDA, J.A., KENTRIDGE, J.A.
Mrs. M.C. Motsemme for the Appellant Mr. P.T.C. Skelemani for the State
JUDGMENT
AGUDA, J.A.
In the morning of February 28, 1981, the Appellant wilfully and unlawfully set fire to three houses at Kalamare village. Before that
day and until January, 1981, the Appellant had lived in one of the houses with a girl friend of his by the name Mokgalagadi Mokgojana.
However, by February 28, 1981, both of them had separated as a result of a quarrel. Now having set fire to those houses, the Appellant then proceeded to Mholwane to set fire to other three houses. All the houses burnt down were the property of Mokgojana Sebiletso, father of Mokgalagadi Mokgojana. After the burning of the houses at Mholwane the burnt bodies of two children were discovered. One
of the children Kedibonye Sekopo Mokgojana, was the child born by Mokgalagadi for the Appellant. The second child Tuntele Mokgojana,like
the first was grand child
2
of Mokgojane Sebiletso.
Subsequent to above incidents, the Appellant was arrested and charged with the murder of the two children as well as with arson in respect of the six buildings. He pleaded not guilty to all counts of the charge. However, after a trial, he was found guilty
on all counts and convicted. He was sentenced to death in respect of each of the counts of murder and to a term of two years imprisonment
in respect of each count of arson, such later sentences being made to run concurrently. That was on November 5, 1981.
On November 9, 1981, he gave a notice of appeal against
both conviction and sentence. In his notice of appeal he said:
"I fell in love with a certain woman whose name is Mokgalagadi, but what has caused me to commit the above offences were as follows:-
(1)
I was staying with Mokgalagadi at her home as a husband and wife, I then left home visiting my parents, but when I returned I found that Mokgalagadi was not at her home, but when I asked her mother as to where she might have gone to, her mother never replied but instead left to the fields;
(2)
Realising that Mokgalagadi was no longer interested in me, I then demanded all my properties including cattle, and clothes but her mother refused saying that, I gave those to Mokgalagadi during the time when I was still inlove with;
(3)
The mother said that she is the one who have separated us;
(4)
I didn't report this to my parents since it was only known by me, Mokgalagadi and her mother;
(5)
I only lost temper and found myself having committed these offences."
Mrs. Motsemme who appeared for the Appellant showed both in her
Heads of Arguments and in her oral arguments what she consider
considered were wrong in the trial and conviction of the
Accused. However, she conceded that she could find no fault
3
with the conviction of the Appellant in respect of the counts of arson and the sentences passed thereon. <In consequence therefore the Appeals against the conviction and sentence in respect of those counts are hereby dismissed.
As the arguments proferred by Mrs. Motsemme cannot be understood without reference to the evidence in some detail, we shall now proceed to examine that evidence. However, before doing that, there is a matter of considerable importance to which we wish to draw attention. The prosecution indicated before the
trial began that they were going to call eighteen witnesses, and they supplied a "Summary of Evidence" of these witnesses
to the Appellant who was at that time being defended by Mrs. Tsoebebe. Apparently Mrs. Tsoebebe on behalf of the Appellant admitted formally as evidence the summary of evidence of fourteen of the eighteen witnesses. Among such witnesses whose evidence was admitted in this way can be found very material witnesses
and the medical expert who normally in the interest of justice should have been put in the witness box at least for cross-examination.
We have no doubt that the provision contained in the Criminal Procedure and Evidence Act, Section 270, which permits this procedure is designed to shorten the time actually spent in court hearing criminal cases in the interest of justice but we would wish to say that resort should not be made to this procedure in cases in which the defence of the Accused may thereby be prejudiced. We have no doubt that
in a criminal trial the trial judge has the power and indeed the responsibility to call witnesses whose names have been supplied
by the prosecutor to the witness box to give oral evidence if in his opinion this will enhance the
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the quality of justice he is called up to administer. Formal admission in criminal trials should as far as possible be confined to
the admission of evidence of a formal nature. No definite rules can be laid down in this connection; and each case will have to be
considered on its own merits by both the prosecuting and defence counsel as well as the trial Judge all of whom have grave responsibilities in this regard.
Now in this case two basic facts are admitted and have never been in dispute. First, that it was the Appellant that wilfully and unlawfully burnt the houses in Mholwane, and secondly that the burnt bodies of the two children were found in one of those houses. The question surely was as to how the children
got into the houses. The only direct evidence on this point is the evidence of one Jacob Nchi Mokgojana (apparently a brother to the Deceased children), a boy 8 years of age. There is however, uncontradicted admitted evidence of Mokgojana Sebiletso that when he was leaving the house in the morning of the
incident he left behind in the house Thosi, Lolonyana, the child Nchi, Khani and the two deceased children. This evidence is corroborated
by the evidence of Thosi who said that when in turn she was leaving the house to draw water from a nearby river she took along with
her Khani and Golonyana, leaving behind Nchi and the two deceased children. All this of course corroborates the evidence of Nchi
that when the Appellant came to set fire to the houses there were three of them there, namely himself and the two deceased children. In respect of Nchi's evidence as to how the two deceased came to be burnt in the house, the
Learned Trial Judge, O'Brien-Quinn, C.J., followed meticulously the procedure laid down in respect of the evidence
5
of children of such an age before permitting the child Nchi to give his evidence unsworn.
According to this child, on the fateful day, as he and the other two children (now deceased) were in their yard the Appellant came there and set fire to their grandmother's house. The evidence of Nchi then went on as follows. When the house was being set on fire, he ran away. The deceased children were about four feet from the house, and although he told them to run away they failed to do so. However, as he was running away he looked back and saw the Appellant beating the deceased with an axe. After the Appellant had beaten (or cut) them with the axe he
then threw them into the burning hut. At that time he was about 100 metres away from the scene. Although one of the children Tuntele
had attempted to run away, the Appellant had got hold of him and brought him back to the scene before throwing him into the fire. It is necessary to note in passing that the child Tuntele was the one alleged to have been born to the Appellant by his girl friend Mokgalagadi but whose partenity he appeared to have disputed at one stage. However, Nchi went to call the elders from the river where they had gone to and by the time they came back the other two houses within the
compound had been burnt down and the roof of their grandmother's house had caved in.
Most of the attack on the judgement of the Learned Chief Justice in this case centred around every aspect of this child's evidence. First, it was submitted that in the proof of evidence submitted
to the defence at the beginning of the trial the witness never made mention of the fact that the Appellant threw the children into the burning house. Indeed
6
that was a valid observation, but it is one which carries little or no weight now. The fact of course was that the child gave evidence and she was not cross-examined on this point by defence counsel. Had defence counsel asked the witness the reason for this obvious omission he might or might not have had a satisfactory reason for it. This Court cannot now speculate on that issue. The only challenge made to this piece of evidence by
the defence throughout the trial was contained in these few lines of cross-examination:-
"I had stopped with the intention of going back. Why did you not go back? I saw the house on fire.
Did you actually see Moses put the children into the hut? Yes.
Was the hut burning at the time? It was on fire.
Which end of the axe hit the children? The sharp side. That is all." The Appellant never gave evidence and there was not any suggestion in the cross-examination that the child was mistaken or was lying nor was any other circumstance shown which woulc tend to make the evidence unreliable.
Again Counsel has challenged the evidence from another angle. She suggested that the evidence was improbable as the children could not have simply waited to allow each of them to be thrown into the burning house one by one. A third challenge to the witness's evidence relates to where the child
7
had said that the Appellant applied the sharp end of an axe to the children before he threw them into the fire. Counsel pointed out that there is no evidence that the axe was examined for blood stains.
Here again although the proof of evidence of the witness Nchi showed that he saw the Appellant used the axe on the deceased children.
He gave evidence and he was never challenged on this point by the defence counsel as was clearly her duty if indeed she had instructions that that piece of evidence was untrue. One axe was admitted in evidence by consent of the *w- Appellant, (Exhibit M) whilst another was tendered by the
Assistant Superintendent of Police in charge of the investigation (P.W.4) as having been recovered from the Appellant and admitted as Exhibit 3. It is significant to note that the child Nchi was P.W.I and had given his evidence before P.W.4, and yet P.W.4 was not asked any question about the axe. Indeed Defence Counsel did not ask any question whatsoever from P.W.4 The only questions asked of P.W.I in respect to the axe are as follows:
"When you looked back you were at the goats' kraal? I was running towards the river. Did you stop?
Yes, I stopped and looked to the village. It is when you saw Moses hitting the two children?
Yes. You were not moving that time?
I had stopped with the intention of going back. Why did you not go back?
I saw the house on fire.
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Did you actually see Moses put the children into the
hut?
Yes.
Was the hut burning at that time? It was on fire.
Which end of the axe hit the children? The sharp side.
That is all." Clearly if from her instructions Defence Counsel had felt strongly that the witness was telling lies, she had open to her many alternatives. First she simply could have suggested, to the child that he was mistaken or was lying. This, counsel failed to
do. Secondly she also had the opportunity of asking that the doctor who performed the post-mortem examination be called. This, also
she failed to do. Then again she failed she had an opportunity of meticulously probing P.W.4 on the issue; but she failed to ask
him a single question. Lastly -but this may not be Counsel's fault - the Appellant had an opportunity to deny each of the allegations
either by making a statement from the dock or by giving evidence. The defence having failed to take any of these chances open to
it, the prosecution was entitled to believe that the facts were unchallenged; and the Learned Trial Judge was quite right in taking the view that the evidence of P.W.I was credible. However, the Learned Trial Chief Justice did not rest the case entirely on the child's evidence. He went on very meticulously to consider every aspect of the facts and the applicable law leaning heavily in favour of the Appellant.
9
First, the Learned Trial Chief Justice considered the question of corroboration. Rightly he took the view that the evidence of Nchi required corroboration. The facts which could be considered as corroboration are: (1) the bodies of the children were found in one of the houses burnt where P.W.I had said that
the children were thrown by the Appellant. (2) an axe was subsequently recovered from the Appellant. It was argued quite correctly
that these did not go sufficiently to corroborating the evidence of the chiia Nchi in respect of his allegation that the Appellant
threw the cniidren into tne burning house. The Learned Chief Justice appreciated this fact and went on therefore, to consider other circumstances.
By reason of Section 209, paragraph (b, of the Code, if a person knowing that his act or omission is likely to cause the death of some other person, whether such person
is the person actually killed or not, although such knowledge is accompanied by indiffenence whether death is caused or not, or even by a wish that death may not be caused nevertheless performs the act or omission and as a result of such act or omission, someone
was killed, tnat person would be held guilty of murder of the person killed. This provision of the law is clear. It makes the killing as a result of what is regarded as recklessness,
murder. In this regard recklessness must be distinguished from negligence. Recklessness is the taking of obvious risks with the knowledge of the risk but with indifference as to the consequences, and in some cases even without a desire for those consequences. Negligence on the other hand connotes lack of knowledge of the risks involved in the action or omission in question.
10
In the case of negligence the law takes the view that the actor's action or inaction falls below that expected of a reasonable person placed in the same circumstances. The epithet "gross" sometimes used is only to indicate how far short the action or the omission of the actor has been in
relation to what is expected of a reasonable man similarly placed. In effect therefore, recklessness and negligence -whatever epithet
is used to describe it - operate in two different planes, the former in a plane where knowledge of risk and indifference to risk is required, whilst in the latter no such knowledge is required. As Cecil Turner says in Russel on Crime (12th ed.) Vol. 1, pg. 42 "the reckless man is one who, while aiming at an end which he desires to attain consciously takes
the risk of bringing about some other result also." According to Turner "this corresponds to the culpa lata of Roman law which carried the same liability for resulting harm as did dolus malus." On the other hand negligence is discriptive of the act of "the man who acts without realising that the particular actus reus in question would or might follow 'from what he was doing - he did not think of the result
which his conduct might produce
Negligence therefore in
this connection connotes inadvertence, "(pg. 43, ibid.) and inadvertence no matter whatever epithet is used to describe it cannot amount to recklessness. Indeed Rolfe B. said in Wilson v. Brett (1843) 11 M. & W. 113, at pp 115, 116, that -"I could see no difference between negligence and gross negligence - that it
was the same thing, with the addition of a vituperative epithet."
Consequently whilst killing as a result of recklessness as
11
laid down in Section 209 (b) of the Code would amount to
murder, killing as a result of negligence will, at best, amount
only to manslaughter. With regard to that provision of the
Penal Code, (Section 209(b)), the Learned Chief Justice made
the following finding:
"On the evidence, however, I find as a fact that the Accused was fully aware of the presence of the children at the scene. I
find also as a fact that he set fire to the three houses well-knowing that the children were in close proximity to the burning houses. I find also as a fact, on the evidence of Thosi (P.W.2), that the Accused did not want to be interferred with in the burning of the houses by virtue
of the fact, which I accept, that he chased her away with an axe."
We can find nothing perverse in these findings which are amply
justified by the evidence. On these findings the Accused
would be guilty of murder under the law of this country as
analysed above.
Again there is no dispute that the bodies of the children were found in one of the houses and there is no dispute that it was the Appellant who set fire to the houses and that his unlawful
burning of the houses was to his knowledge likely to cause the death of the two children either because he threw them into one of
them or because of fear created by him they ran into the house. Viewed from any angle, the Appellant would be guilty of murder under
the law of this country.
If only in passing it may be necessary to state that this position of the law is not peculiar to this country. Under the English common law, it was held in R. v. Pitts (1842) Car. & M. 284 that if a person, being attacked should from a reasonable and justifiable apprehension of immediate violence, throw himself into a river with a view to escaping and he was drowned, the person attacking would be guilty of
12
of killing the Deceased. See also R. v Curley (1909) 2 Cr. App. R 96, at p.109. In R. v. Halliday (1889) 61 L.T. 701, Lord Coleridge said that "if a man creates in another's mind an immediate sense of danger which causes such
a person to try to escape, and in doing so he injures himself the person to try to escape, and in doing so he injures himself the
person who creates such a state of mind is responsible for the injuries which result." See also R. v. Lewis (1907) Crim L.R. 647. Applied to the present case it means that even if the appellant did not throw the children into the burning
house, but were forced by fear created in them by the Appellan : to run into the house where they were subsequently burnt, the Appellant would nevertheless be held to have caused their death. Finally
in the Nigerian case of R. v. Okoni (1938) 4 W.A. C.A. 19, the West African Court of Appeal held that persons who set fire to a house and thereby burnt a woman who happened
to be in it, would be guilty of causing her death, that being a reasonable probable consequence of their act.
In the amended grounds of appeal filed on behalf of the Appellant, Mrs. Motsemme complained that the Court should have found extenuating circumstances and thus ought to have imposed a sentence other than that of death. The circumstances noted in Counsel's Heads of Argument are that:-
(1)
the Appellant is a man of 25 years of age;
(2)
a first offender;
(3)
he was angered by the mother of his wife, who was refusing to give him his property;
(4)
he had stayed with his girlfriend (or wife) for years continually as man an wife;
(1)
13
(5)
she (i.e. the girlfriend or wife) had lost interest in him, and
(6)
her parents were not keen to patch up the quarrels and seemed to encourage separation.
We take the view that all these circumstances put together
cannot, in law, be accepted as extenuation of the murder of
the child of his wife, worse still of the murder of another
innocent child. In any event the Learned Chief Justice took
all these into consideration before arriving at the conclusion
that no extenuating circumstances existed; and we can see no
reason to reverse him on this point.
For all above reasons we can see no merit in the appeal
which is accordingly dismissed.
Signed:
T.A. AGUDA JUDGE OF APPEAL.
I agree
Signed:
I.A. MAISELS RESIDENT.
I agree
Signed:
J.W. KENTRIDGE JUDGE OF APPEAL.
Lobatse
9th December, 1981.
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