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Seboni v The State (Criminal Appeal No. 49 of 1983 ) [1984] BWCA 12; [1984] B.L.R. 69 (CA) (22 May 1984)
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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 49 of 1983 Criminal Trial No. 51 of 1983
In the matter of:
WELLIE MATHEADIRA SEBONI
Appellant
vs.
THE STATE
Mr. D. A. Bregman, SC with him Mr. Y. Ismail for the Appellant
Mr. 3. A. Afful, Assistant Attorney General
for the State
JUDGMENT
COHAK: Maisels, JF
Dendy-Y oung, JA Van Winsen, JA
VAJ^J WINSi^K, J A:
The appellant v/as convicted in terms of section 205 of the Penal Code (Cap 08:01) of the offence of Manslaughter in that he unlawfully killed BRUNO MABUTHOE on 30th September, 1983 at Gaborone. He was sentenced for this crime to 5 years imprisonment 3 of which were suspended for 3 years. He appeals both a>;:unst his conviction and sentence.
In terms of section 270 of the Criminal Procedure and Evidence Act (Cap 08:02) a Statement of Admitted Facts agreed
2
to by the State and appellant were put in as evidence at the trial for the offence alleged by the .'State. The post-mortem report and certain articles of clothing worn respective! \' by appellant and Mabuthoe, the deceased, on the occasion of this alleged assault by the former on the latter v/ere handed into Court at the trial. In addition a broom handle alleged t:o have been used by appellant to beat the deceased was put before th'
Court. The tricl Court took the initiative in calling as a v;i tnes.-; DR. h ati.u-REDDY who had conducted the post-mortem examination on the deceased. He was question by both the representatives of the State and of appellant.
The Statement of Admitted Facts read as follows:-
STATEMENT OF FACTS
K. ADMITTED F.iCTS
1.
Accused is WELLIE MATHEADIRA SEBONI aged 51 of GABORONE.
2.
accused is lawfully married to Maggie Thembisa Seboni, and the couple lived together with their children at House No. 152, GABORONE.
3.
On Independence Day, 30 September 1983 a succession of visitors called at the Seboni Home, where some liquor was consumed in celebration of Independence.
4.
^s evening fell the following persons were present at Mr Seboni's home:
Mr & Mrs Seboni Dennis Seboni David Mokokong Tiny Seboni Bakwena Bakwena
There were also other guests present.
5.
The Accused, Mr Seboni, then left, with Mrs Seboni's
consent to attend the official cocktail party at
State House.
3
At 7,50 p.m. and in the Accused, Mr Seboni'
absence a car drove up to the Seboni home ard the driver booted. The driver was Mr Bruno Mabuthoe, now the 'deceased. He called for Mrs Seboni who entered the car with him and tno couple drove away.
After a considerable period of time Mrs Seboni returned home accompanied by the Oacoased. The Deceased's shirt was stained with b? ood and he had a cut above his left eye. The Deceased alleged that his car had overturned and he had beer beaten by the police.
-inrlier in che evening, the Deceased, who was under the influence of alcohol, had been involved in a physical struggle with his brother Mmungo Mabuthoe who attempted to restrain him
from using a motor vehicle while drunk. He had smashed the front and rear windscreens of his sister's car and had smashed a window pane at his parents' home.
On their return to the house Bruno Mabuthoe and Mrs Seboni sat in the sitting room kissing and fondling each other in the presence
of the guests. Mrs Seboni informed the guests that the Deceased was her boyfriend.
The Deceased stated that he feared to return home and that he wished to take a bath. Mrs Seboni ran a bath for him and he bathed.
Mrs Seboni and the Deceased then retired to the bedroom with four cans of beer and locked the door leaving the guests in the sitting room.
Sometime thereafter Mr and Mrs Seboni's son Dennis arrived homewith a friend, to be informed that his mother had locked herself in the bedroom with a man other than his father.
Minutes later at about 11 p.m. Mr Seboni, the Accused, arrived and was informed by David Mokokong of the situation. Mr Seboni knocked at the bedroom door but the occupants refused to open.
Mr Seboni, the Accused, then rushed round to the bedroom window where he found the Deceased making his escape through the window. With the assistance of David Mokokong and Dennis Seboni, the Deceased was caught and Mr Seboni slapped him in the face, then he was taken into the sitting room. The Deceased was wearing a pair of trousers and nothing else.
4
In his fury the Accused seized a broomstick (EXHIBIT A) and administered a thrashing to the Deceased about his buttocks causing bruises and abrasions while questioning him about his behaviour. The Deceased gave no replies to questions, and tried to ward off the Accused's blows with his arms, while struggling to defend himself.
Dennis Seboni and David Mokokong initially assisted the Accused to hold the Deceased but later urged him to desist.
When his passion cooled the Accused stopped beating the Deceased. He then recovered Deceased's underpants, shoes and bloodstained
shirt (EXHIBIT B 1, 2 & 3) from the bedroom, and sought out his wife, who was hiding in the staff quarters, to question her on
the matter. He then left. At that stage the Deceased was bleeding at the mouth.
Sometime after the departure of the Accused, one Cordeliah Kgakge observed David Mokokong beating the Deceased over the back with a stick as the Deceased lay helpless on the floor.
The Deceased was subsequently moved by David Mokokong and Dennis Seboni to the garden, while they went in search of his relatives. Unable to find relatives they finally called the police.
The police arrived at 3.00 a.m. and the Deceased was conveyed to the hospital. Deceased was treated at the hospital, but passed away at 11.00 a.m.
The Accused, Mr Wellie Seboni was arrested at his home and was taken into custody.
A Post Kortem Examination was conducted on the body of the Deceased by Dr. Maramreddy, which examination was attended by other Doctors. The Post Mortem Report is produced as EXHIBIT C.
The contributing causesof death were found to be:
Haemorrhage and shock due to multiple injuries.
The principal injuries leading to death were -
(a)
Subdural haemorrhage;
(b)
Perforations of the stomach.
No bones of the Deceased were broken and his skull was not fractured. On examination his stomach walls were found to be excessively thin and would require minimal force to perforate.
5
V.b, All injuries were inflicted within twenty-four hou^s of the death of the Deceased, but it is not pcssible to state which of the assaults sustained was the proximate cause of his death.
It appears from the Post-mortem report that Dr. Maramreddy found 63 separately discernible wounds on the body of the deceased.
when he gave evidence Dr. Maramreddy testified that the admission in the Statement of Facts that perforations of the stomach was a contributory cause of death was incorrect. These had only occurred subsequent to death. He testified that the injuries contributing to death were subdural haemorrhage and multiple injuries to the body.
The doctor said that the injuries could have been caused by lists cr kicks and certain typical marks suggested that some injuries were produced by a stick or iron described by him as a long instrument. The orly instrument which according to the admitted facts was used by appellant to belabour the deceased was a broomstick. There is no evidence of an iron-rod being used. Some of the injuries that appeared to have been produced by an instrument v/ere found in the left side of the chest and in the outer side of the left arm and two "on the back of the chest". The admitted facts only talk of appellant
having beaten deceased about the buttocks with a broomstick causing bruiser, and abrasions.
V.hile the doctor did find "some bruises" on the buttocks, he found no evidence that a long instrument had left any marks on the buttocks of the deceased. The bulk of the 63 injuries
6
were found on "the right side of the neck, on the chest, abdomen, on the right arm, upper and lower arm, on the head and face, on the left big toe." In connection with the subdural haemorrhage the witness stated that there were two wounds on the skull and one on the left eye. He described some of the injuries as trivial and some as moderate.
The doctor was questioned as to whether blows on the -..ut: oc/.s coul'1 h ive injured the deceased's kidneys. He said I'n: t, coul;i have caused blood in the kidneys but he found none
there.
The witness was also questioned about the possible effects of a subdural injury that mi^ht have been sustained by the deceased earlier in the day and unconnected with the events in ihe evening at appellant's home. lie said that if the deceased had sustained such an injury at that time he could have; lived with it for a lon^ time - even up to a year. It cou Ui then have become a chronic subdural haematoma.
lie referred specifically to a large number of injuries .-.nich he said could have been caused by contact with a rough sur"ace presumably when the deceased had been moved from the house to the garden. It would seem that these injuries took the form of abrasions and not•contusions which later would have resulted from the application of greater force. The witness was unable to say that each individual injury contributed in bringing about death but he was confident that the subdural haemorrhage was a cortributory cause of death.
7
The trial Court (O'Brien luitvn, (J-J) found appellant not
:uilty of Murder but convicted him of l-janslaughter. In the
course of his judgment he found that the accused caused many
of the injuries found on the body of the deceased and that he
the hit h in twice on the head, and that at/tir.,e of the assault on
'< \r- by appellant th-> deceased w,v-- in ,ood physical and rental
:
.<
( J In. Tf
:• l\.o olows on the head, so the Court found, caused
• '
o•
;
.. • ? (
->:• in length on the ton at* deceased's head and
i'Y)o\'^\- '4.[: OMIS in length '•
c
r. above the ear lobe, both
re miring stitching. The Court concluded that any blows struck
oy :javid Mokokon; did not contribute to the death of the
deceased, but: that the blows received at the hands of appellant
contributed to the death, of the deceased "in that they either
caused the diffuse subdural haemorrhage
or, at the
least, they exacerbated an already existent subdural hae.norrhag
and thus contributed towards the death of the deceased
"
in the strength of this finding, the Court held that the
previsions of section 214 (d) of the Penal Code applied to the
case or alternatively of section 214 (e).
In terms of these sub-sections a person is deemed to have caused the death of another although his act is not the in: aliate or not the sole cause of the death, inter alia, in the following cases :-
(a) if by any act
he has hastened the
da lt.h of a person suffering under any injury
which anart from such act
would have
caused death.
CK
8
(e) if his act
would not have caused
death unless it had been accompanied by
an act
of other persons.
To justify a conviction for manslaughter under either of these sub-sections it must be clear that the State has discharged the onus resting upon it that the acts of the appellant bring him within
the ambit of one or other of these sub-sections.
It is only open to the State to discharge this onus by means of evidence. The State led no evidence. It contented itself with being a party to and producing in Court the agreed Statement of Facts set out above. It was on the initiative of the trial
Court that medical evidence by the doctor who conducted the Post-mortem was led in Court.
Accordingly at the close of the cases for the State and the appellant, the former was left with only the medical evidence and the statement of agreed facts with which to discharge the onus resting upon it.
While section 270 has its legitimate uses, I doubt very much whether it was intended by the Legislature to create the opportunity for a wholesale departure from the rule that evidence in a criminal case should generally speaking be placed before the Court viva voce as provided for in section 177 (1) of the Criminal Procedure and Evidence Act. It is of paramount importance for the achievement of the aims of justice that,
as a general rule and with rare exceptions, a witness in a case should appear per'tonally before the Court
9
so as to be seen and heard in evidence before it thereby-enabling the Court to judge what manner of man it is that it has before it. Furthermore the cross-examination of a witness whose evidence is sought to be relied upon affords one of the most effective ways of testing the honesty and reliability of that evidence. Neither of these ends can be served without viva voce evidence. It is accordingly-ill-advised , save in exceptional circumstances, to by-pass such accepted and well-tried methods of ascertaining the truth. It was,
I am convinced, never the intention of the legislature that in criminal proceedings the whole gamut of a Jtate case should be encapsulated in the narrow compass of a statement of agreed facts. Section 270 sought to do no more than to provide an opportunity to record individual admissions by the accused to relieve the otate of the necessity of proving matters of a generally formal nature.
The care which should be exercised before resort is had to the provisions of section 270 is well illustrated by the circumstances of the present case. By its own agreement the state's was cabined and confined within the narrow ambit of the statement of agreed facts which prempted the much fuller enquiry which the circumstances of the case required.
It was vital for the success of the case, for the State to establish a causal connection between the acts of the appellant and the death of the deceased. Regard being had to the multiplicity of the wounds inflicted on the deceased, the uncertainty surrounding their causative relation to the
10
death of the deceased and the existence of at least three
occasions on which the deceased sustained injuries which could
not be attributed to the acts of the deceased, one would have
thought that viva voce evidence would have been tended
by the State at the trial. It could not but have been
realised that, in the absence of other evidence, it could no;
attribute to the appellant acts by him in relation to the
deceased different from or additional to those he had
admitted or which could in law have been justifiably inferred
from such admissions. Quite clearly such admissions and
inferences as could be rightly drawn therefrom were wholly
inadequate for the purpose of discharging the onus of proof
resting upon the State. Not only did the State fail to adduce
positive evidence, beyond the admissions in the statement of
agreed facts and the medical evidence, of acts on the part >f
to appellant leading/the death or to the hastening the death of
also the deceased but it/failed to eliminate the very real
possibility that the death of the deceased may have been
caused or hastened by the actions of others. No attempt was
made to eliminate the possibility that the deceased may have
suffered some of the injuries found on him in a physical
struggle with his brother while the latter sought to restrain
him from using a motor vehicle while drunk. A similar absence
of evidence eliminating the possibility of injury resulting
from the deceased having overturned his car and being beaten
by the police is evident from the record. All that is on
record as to injuries he might have sus ained before his
encounter with appellant i^, that he had a cut above the eye
11
and that his shirt was blood-stained. An injury could very well have been sustained by him on the occasion of his car accident which injury may have been connected with the sub-dural haemorrhage
found to exist and which, according to the medical evidence, was one of the deceased's most serious injuries. No attempt was made by the State to lead evidence as to the duration and the severity of the beating which was administered by David Mokokong while the deceased lay helpless on the floor. No evidential foundation exists for the conclusion by the Court a quo that the blows struck by David were minimal and could not have contributed to the death of the deceased.
Turning to the question as to what appellant had done to the deceased the evidence on this point is limited to the admissions that he "administered a thrashing to the Deceased about his buttocks causing bruises and abrasions" and that he slapped the deceased on the face.
By no stretch of imagination can this evidence form the basis for a finding that the injuries found on the head and neck of the deceased had been inflicted by appellant, or more particularly
that appellant's acts was responsible for the 3 cms in length wound on top of the head and the 4.5 cms in length wound above the right ear lobe.
It would seem fron the medical evidence that while the doctor was of the opinion that the injuries to the skull and face clearly did contribute to death, he could not say with certainty whether each of the other- injuries were causally
12
linked to the death. This evidence does rot justify a finding that any individual injury on or in the region of th buttocks which might have been caused by blows administered by appellant caused or contributed to or hastened the death of the deceased. In my view the State failed to prove that appellant was deemed in terms of either sub-rection ,d) or (e) of section 219 of the Penal Code to have caused the death of the deceased. It is for these reas'rs that the appeal wa*; upheld and appellant's conviction and sentence set aside.
GIVEN at the Court of Appeal, Lobatse, this 22nd day of May, 1984.
L. DE VAN WINSEN Judge of Appeal
I agree
I. A. MAISELS
Judge President
I agree
J. R. DENDY-YOUNG
Judge of A -peal
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