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Nawa v The State (Criminal Appeal No. 24 of 1982 ) [1982] BWCA 3 (19 May 1982)
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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 24 of 1982 Criminal Trial No. 46 of 1980
In the matter between:
GOLFREY NDONA NAWA Applicant/Appellant and
THE STATE Applicant/Appellant in person, unrepresented
RULING ON APPLICATION FOR LfcAVE
TO APtaAL
O'BRIEN uUINN, CJ as SINGLE JUDGE OF APPEAL
The applicant was convicted of murder by Corduff J on 20th November, 1980 and was sentenced to 6 years' imprisonment.
He applied for leave to appeal out of time against conviction and sentence on 3rd March, 1982.
His only reason for the delay in appealing is that he was unable to pay the appeal fee and had been waiting for his mother, who lives
in South Africa, to send him the money.
His grounds of appeal are that he killed the deceased in
self-defence, and that the deceased, who had been getting the better of him in the fight with fists, fell onto the knife which had just been thrust into the applicant's hand by one of the witnesses. He argued that had he not been given the knife and told to defend himself the killing would not have taken place. <vith regard to sentence he stated that the learned trial Judge had firstly given him 2 years* imprisonment but when the prosecution rejected that sentence the trial Judge increased Lt to 6 years' imprisonment. That 6 years* imprisonment, he contended, did not take account of the fact that he had been in custody awaiting trial rince 6th May, 1980, which he was now requesting the Court of Appeal to do.
On the hearing of the application it transpired that his appeal was against sentence only and he admitted killing the deceased though not in self-defence.
The facts of the case were gone into in detail by Corduff J. The incident was found to have arisen out of the bumping into each other
of two groups of young men on a street which ended up as a fist fight. The deceased was in one group and the applicant the other and the deceased referred to an old grudgr between them. The deceased during an attack on the applicant had to be restrained by one of his companions but again came at the applicant who came into possession of a knife. The learned trial Judge found, on the jucts:-
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"There is no doubt in ay mind that once he had t.e knife in his hand he determined to use it in the way he did and from th
ease with which he was able to stab the Deceased in the breast without encountering any sort of defence I can only conclude that either
the Deceased did not have his guard up or else was merely anticipating a blow from a fist. There is furthermore no evidence that the First Accused ever received even the slightest hurt and on the contrary there is positive evidence that the Deceased never succeeded in landing one blow."
I can find no re.^s n why the Court of Appeal should upset that finding of fact and, even if the applicant had gone ahead \
ith the appliestion for leave to appeal against conviction I would not have allowed it.
V-ith regard to sentence, the applicant had a number of previous convictions f-.r theft nnd one for robbery in addition to one for causing malicious damage to property, but the longest sentence he had received was 5 months' imprisonment for theft of cassettes valued at R38.23 on 11th December, 1978. He had no record of violence and he was 20 years of age at the time of the offence. He was in employment as a Clerk and had been drinking alcohol prior to the incident.
The learned trial Jud^e took all these matters into consideration,, and passed the sentence of 6 years' imprisonment.
In all the circumstances, I cannot see any reason why the Court of Appeal should interfere with the learned trial Judge's discretion as, in my view, the sentence was well merited rnd may even have erred on the side of leniency.
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I must, therefore, decline to grant leave to appeal out of time against sentence as I consider that it would not be interfered with
and the applicant has not satisfied me that it was excessive or wrong in principle, or that the learned trial Judge did not take
account of the time spent by the applicant in custody awaiting trial in deciding on 6 years as the appropriate sentence.
The application for leave to appeal out of time is dismissed.
GIVEN at the High Court, Lobatse, this 19th day of May, 1982.
J. A. O'BRIEN QUINN CHIEF JUSTICE
SINGLE JUDGE OF APPEAL
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