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Chinamamo v The State (Criminal Appeal No. 25 of 1982 ) [1982] BWCA 1 (1 January 1982)

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IN THE COURT OF APPEAL OF THE THE REPUBLIC OF BOTSWANA

Criminal Appeal No. 25 of 1982

In the matter between:

FOGERS KEFIWANG CHINAMAMO Appellant

and

THE STATE Respondent

Coram: Hon. Maisels, J.P. Aguda, J.A. V.ertridre, J.A.

JUDGMENT

AGUDA, J.A.

When this appeal was called before us on December,8 1982, we dismissed it after listening to the appellant in person and Mr. Afful, Deputy Attorney-General for the State. We stated therein that we would give our reasons later; and this we are now doing.

The appellant was charged with murder and arson contrary to Section 207 and 330(a) respectively of the Penal Code. The offences are alleged to have taken place on December 29, 1981. The appellant pleaded not guilty but was found guilty on both counts after a trial during which ten witnesses gave evidence for the prosecution whilst the appellant gave evidence in his own defence.

The facts disclosed that one Rebabedi, PW5, who was a girlfriend to the appellant was in her hut at Letlhakane with another lover of hers one Monyamane, PW4, on December 29, 1981.

She had with her a two year old child by the name M. K., a child which she had for Monyamane. At about 7 p.m. on the day in question the appellant came to the hut of Rebabedi. When he discovered that Monyamane was there, he assaulted her, pulled her out of the hut and took her to his own home. At his home she and the appellant slept together. However sometime after, it was the evidence of Rebabedi, the appellant left her and went out. After his return she had sex with him. Later she noticed that a hut was burning. Although she was not sure which hut was burning, she wanted to go back to her hut but the appellant would not allow her. It was much later that the police came to take both her and the appellant to the hut which happened to be her hut in which she had left the deceased. The deceased had by then been burnt to death.

Now the most damnifying pieces of evidence against the accused are the statements which he was alleged to have made voluntarily to the plice on December 30, 1981 and to the Chief Magistrate, Mr. Hunt on December 31, 1981. The first statement is a rather long story. According to him he went to PW5's hut to ask her to follow him, but she refused; then later he went back after sunset and discovered another man in the house. My heart was so painful about this man whom I found with my girl­friend" so continued the appellant in the statement. However he managed to take her along with him to his own hut.

"On our arrival at my yard I prepared a bed in the court-yard for ourselves. After my girl-friend had got into my blankets I returned back to this man to set fire to the hut in which we left him inside washing, and that I was alone. I had a full box of matches with me to set fire to this hut in order to kill the man. On my arrival I found the door of this hut closed, and I did not check as to whether this man was inside sleeping. I Just set fire into the thatching grass using one stick of match and returned back.

My intention was in view to endanger the life of
this man whom I found with my girl friend. I am
very sorry to have killed the child “

In the statement which he was alleged to have voluntarily

made to Chief Magistrate Hunt, he was alleged to have said:

"I burned the house because I found another boy in the house of my girl friend. I was not intending to set fire on the child but I was intending to set fire on the boy as I am afraid of him. I think the boy is called Monyamane. That is the only mistake I think I made of burning the child. That is all.^”

During the trial the defence objected to the admisability were of this statement on the grounds that they / not voluntarily made by the appellant. The trial judge decided to try the issue of the admisibility of the statement as a separate issue.

After weighing the evidence the learned trial judge ruled that the statements were admisible, in that they were voluntarily made by the appellant. We have seen no reasons to hold that the trial judge was in error in admitting the two statements as the voluntary statements made by the appellant. Although the appellant raised the issue up before again alleging that he was ill-treated and thus forced to incriminate himself. He alleged that as a result of the ill-treatment he suffered wounds on his wrists, and from the statement he made before us it could appear that whatever wounds he might have suffered to his wrists must have been as a result of the hand-cuffs fixed to his wrists.

They would hardly have been there by the 31st of December when he made the second statement to the Chief Magistrate. It is difficult to believe that the police invented the long story as alleged by the appellant in his statement made on December 30, 1981; as it is difficult also to believe that the Chief Magistrate told lies against him. As we have said earlier, it is sufficient for us to say that we have found no reason to hold that the learned trial judge was in error in admitting the statement as voluntarily made by the appellant.

A voluntary confession of a crime is of a high probative value provided there is other evidence in proof of the crime. The law in this country is as stated in Section 229(2) of the Criminal Procedure and Evidence Act (Cap. 08:02), and it is as follows:

"Any court which is trying any person arraigned before it may convict him of any offence alleged against him in the indictment or charge by reason of any confession of that offence proved to have been made b y him, although the offence is nr-t confirmed by any other evidence, provided that the offence has, by competent evidence other than such confession, been proved to have been committed."

It is perhaps necessary to say that the position at Common law in England and in most Commonwealth countries is as stated by this provision of the Criminal Procedure and Evidence Act. As far back as in 1852 Erie J. had said in R. v. Baldry (1852) 2 Den. 430; 5C.C. 523 that "when a confession is well proved it is the best evidence that can be produced;” and in R. v. Sullivan (1887) 16 Coxe.C.347, it was held that a voluntary confession of guilt is sufficient to warrant a conviction without any corroborative evidence. See also R. v. Sykes (1913) 8 Cr. App. R. 233. In the West African case of Philip Kanu & Another v. R. (l 52) lb W.A.C.A. 30, the Court said at page 32, that a voluntary confession of guilt, if it is fully consistent and probable, is usually regarded as evidence of the highest and most satisfactory nature if there is an independent proof that a criminal act has in fact been ommitted by someone. To must have this must be added the safeguard that the accused person/had the opportunity of committing the offence; and that the confession was consistent with the other facts which had been ascertained and proved . In my view this fully represents the position under Section 239 (2) of our Code (supra). Finally it perhaps is necessary to state that the position is similar to the position in the Republic of South Africa under Article 258(2) of Act 56 of 1955. What is required is proof beyond reasonable doubt that the confession was voluntarily made, then a conviction can be based upon it alone without any corroboration except that it must be proved also that an offence was indeed committed by someone, that the accused had the opportunity of committing it and that the confession was consistent with the other facts proved in the case.

Now apart from the voluntary confession of the appellant what other facts were proved in this case? First, it was established that there was no fire in the hut which could have been the cause of its burning - therefore the fire that ignited the hut must have been applied from outside the hut. Secondly there is to the evidence of the police Inspector Selotlegeng, PW2, to the effect

that the appellant "handed him a box" of matches which he, the appellant, alleged to have used in setting fire to the hut. He brought the box of matches from underneath a pillow at his house. This was corroborated by Constable Moses, PW3. Again there is the evidence of Rebabedi who said that the appellant left her for a period of time on the night of the incident just before the hut was set on fire; and when she wanted to go out to see the hut that was burning, he prevented her from doing so. Also the appellant had a plausible motive to set the hut on fire.

When all the evidence led in the case is put together with the written voluntary admissions made by the appellant in the two statements which were, in our view, rightly admitted there can be no doubt whatsoever that it was the appellant and no other person who set fire to the hut as alleged in the charge. He in­tended to murder Monyamane by burning the hut, but unfortunately he thereby burnt the child.

In the circumstances therefore we had no reason to disturb the convictions of the appellant in respect of the two charge against him. We therefore dismissed the appeals against both convictions and sentences.

T. A. AGUDA Judge of Appeal

I. A. MAISELS Judge President

S. KENTRIDGE Judge of Appeal