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State v Binang (Criminal Appeal No. 28 of 84) [1984] BWCA 5; [1985] B.L.R. 267 (CA) (1 January 1984)

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IN THE COURT 0F APPEAL OF BOTSWANA
Criminal Appeal No. 28 of 84
THE STATE
vs.
MANYANTA BINANG
Appellant in Person
Mr. T.T. Tafila for the State
Coram: Baron J.A.
Amissah J.A. Van Winsen J.A.
JUDGMENT
Amissah J.A.:
The Appellant was convicted for murder upon a charge which stated that on the 2nd of June 1982, at a place near Mokebedi Ward, Lekgolobotlo Village in the Ngwaketse Administrative District he murdered Moses Binang. The deceased was Appellant's brother. According to the medical evidence, death was caused by a fractured skull with resulting haemorrhage. There were other wounds to the head of the deceased but these were not the decisive cause of death.
The Appellant had from the beginning admitted to killing his brother. The only issue at the trial was whether the Appellant did the act complaine of with malice aforethought within the context of the law. Evidence was given by two witnesses which indicated that there was very little reason,

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if any, for the killing. According to these witnesses the deceased had remonstrated with the Appellant when the Appellant chased away some children and beat them. The learned Chief Justice who tried the case accepted this evidence, and as a result concluded that the story put forward by the Appellant that he had been assaulted by the deceased was unacceptable. On the basis of this evidence the Chief Justice found that the Appellant had been angered by the slight remonstration given him by the deceased, but that this remonstration did not amount in law to provocation and, therefore, the Appellant had killed with malice aforethought as defined by the law.
The learned Chief Justice hastened to add that by malice aforethought he did not mean that the Appellant had intended to kill his brother. This remark had been occasioned by the fact that at the commencement of the trial, Counsel for the Appellant made an application to the Court to refer the Appellant to a Psychiatrist for examination as it appeared that the Appellant was suffering from some mental disease and it was a question whether he would be able to understand the proceedings before the Court at all. Of course, this in turn raised the question as to whether the Appellant at the time of the incident was suffering from such mental disease as to deprive him of criminal responsibility for his action at the time the offence was committed. The learned Chief Justice made the necessary order referring the Appellant to the Mental Hospital at Lobatse for examination and report by the Psychiatrist as to the Appellant's fitness to plead and his mental state at the time of the offence and present mental state.
The report of the Psychiatrist-Specialist was that the Appellant was fit to plead and he was responsible for his action at the time of the offence. The trial therefore proceeded and the defence of lack of responsibility on

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account of insanity was denied the Appellant.
He was convicted and sentenced to seven years imprisonment, and an order was made that he be treated for his epilepsy while in prison. It is against that sentence that he has, with l^ave of the trial Court, appealed.
Before coming to that there is one important question which we ought to deal with. It is a question which affects the issue of guilt or otherwise of the charge as laid. That question arises from the Appellant's extra curial statement and the manner in which it was treated at the trial.
From the outset of the trial, after the charge had been read and explained to the Appellant, there was the following exchange;
Accused: I plead guilty though I do not plead guilty, he is the one who caused me to do this.
Judge : I will take it as a plea of not guilty.
Makwade; (Counsel for the State): My learned friend wishes to make some formal admissions.
Dibotelo: (Counsel for the Accused): We have been looking through the confession statement and we are prepared to accept the confession statement subject to a small alteration, the word "rubbish" in the Setswana version it is mentioned as "masepa" it should read "shit", with that amendment the Defence admits the confession statement.
That was how this matter was left. The confession statement was never formally admitted and was given no exhibit marking. It did not form part of the record of appeal. Apparently, it was to all intents and purposes never specifically referred to again in the course of the trial. It was certainly not referred to in the judgment. That, we think, was unfortunate

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because the statement had material which needed serious consideration especially in the light of other evidence on record on the question of whether or not the act of the Appellant was done under such provocation as the law recognises as capable of reducing a charge of murder to a conviction of manslaughter.
Counsel for the State before us has properly conceded that in accordance with normal practice it was the prosecution which sought to put the Appellant's extra-curial statement in evidence at the trial. We also think that upon the admission of a confession not only is the material in it favourable to the case for the prosecution open for the consideration of the trial court but that everything in the statement including explanations and other matters favourable to the accused become evidence for the court's consideration.
This proposition has the backing of well recognized authority. In Rv. Valachia and Another (1945) AD 826 the Appellate Division of the South African Supreme Court was faced with the exact issue. Upon a reserved question on whether a trial court was "justified in holding that it had no evidence before it ution which to base a finding of extenuating circumstances" when there were extra-curial statements made before a magistrate by the accused persons shortly after their arrest and statements made by them after the close of the evidence led by the prosecution at their preparatory examination, in which were exculpatory portions in favour of the accused, that Court held that such statements when admitted at the trial were evidence and that the trial Court was obliged to give consideration to the whole, both such portions as were against the accused persons and such as were in their favour. It was for the trial court to decide what weight to attach to the statements.

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Speaking for the Appellate Division, Greenberg J.A. after citing a line of English authority in support of the proposition said at page 835s

"        the cases which I have mentioned
and others which I have seen since the argument are in favour of the view that when one party to a suit proves against the other party a statement made by the latter then the Court must not disregard any portion of such statement, even though it be in favour of the party who has made the statement; it is its duty to weigh the credibility of such portion and to give such weight to it as in its opinion it deserves, and this applies not only to such portions as explain the statement, but to everything in the statement which relates to the matter in issue. In Rex v. Clewes (172 S.R.p. 678) the prisoner, who was charged with murder, made a statement in writing in which he admitted that he was present at the murder of the deceased, but took no part in it. It was ruled that the confession must be taken altogether and is evidence for the prisoner as well as against him, but still the jury may, if they think proper, believe one part of it and disbelieve another."
In the circumstances, we took the view that the omission to formally admit the Appellant's confession statement may have disabled the learned Chief Justice from a proper assessment of the evidence in the case before him and the omission, therefore, ought to be rectified by us. We accordingly admitted the statement formally under the powers vested in this Court by rule 29 (i) of the Court of Appeal Rules (Cap. 04:01).
The case of the prosecution as to the absence of provocation which was accepted by the learned Chief Justice was substantially made by the two witnesses who claimed to have seen the Appellant kill the deceased. One of these was a girl who was too young to be sworn, the other an adult whose evidence was taken on oath. On the assessment of their evidence the

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Chief Justice stated as follows:
"The evidence of the witness Marea, who impressed this Court as being a responsible and sensible person, was as to what she had seen and done herself, and her evidence was to the effect that the deceased was attacked without any apparent reason by the accused when he struck him with two blows with the axe handle exhibit "B" which has been exhibited in this Court. A young girl of approximately seven years of age, who was very close to the scene of the incident, also gave evidence, and while her evidence did not tally with that of Marea, her evidence was definitely that there was no real provocation prior to the blows being struck. Her evidence being unsworn, having regard to her age, must in fact, but not in law, be corroborated, and in that respect the medical evidence and that of Marea support her evidence in the main. And, as she was closer to the incident than Marea, I believe her evidence that the deceased had remonstrated with the accused when the accused chased some children away and beat them."
We have looked carefully at the evidence of Dr. S.R. Maramreddy who performed the post-mortem examination. The evidence consisted of his bare summary of evidence and his report on his examination. Both these documents were admitted as a result of an admission of evidence made by Defence Counsel just before the conclusion of the prosecution's case. But neither of them dealt with, or in the nature of things could have dealt with, the question whether or not the blows which inflicted the fatal injuries were delivered as a result of provocation of any kind. On the issue of malice aforethought, which was admittedly the only issue before the Court, the evidence of this doctor provided no corroboration. In effect the corroboration of the girl's evidence was provided, if at all, by Marea

7
alone, whose evidence the learned Chief Justice stated did not completely tally with the girl's.
Be that as it may, on the record before the trial Court, this evidence from the prosecution to the effect that the fatal assault was unprovoked was countered only by an unsworn statement by the Appellant which was brief and on the face of it unexplanatory. It simply said:
"I admit I killed him although it is a serious offence, I committed without intention. It was not my intention, it is because I suffer from fits. Although I have done this, it was through provocation that my brother did on me. I have committed a serious offence although not through my intention. That is all."
And indeed that was all. What form the provocation took did not
appear from this statement. It was, therefore, not surprising that the
evidence of Dr. Russel Hanson on his findings after his examination of the
Appellant on the day after the homicide, namely the 3rd of June 1982,
would appear to the learned Chief Justice to be somewhat unrelated to other
matters before the Court. As a consequence, the Appellant's defence was
dismissed in the following summary manner. Continuing from his acceptance
of the evidence of the prosecution witnesses that there was no real
provocation, the Chief Justice said:
"The evidence of these two ladies leads me to believe that the accused's story that he was attacked by the deceased, is not true. There is no evidence whatsoever to support his story that he was attacked by the deceased. And as to the doctor's evidence, Dr. Hanson was, of necessity, very vague because he could not say exactly how that wound was caused, that is the bruise he found on the accused's back.

8
On the whole of the prosecution evidence, I am driven to the conclusion that the accused was angered by the slight remonstration given to him by the deceased and that the remonstration did not in law amount to provocation."
From the state of the appeal record, it seems to us that this conclusion was reached by the learned Chief Justice without consideration of the Appellant's extra-curial confession statement. Had that statement been properly put in evidence, and had the Chief Justice given the consideration which by law he no doubt would have given to all evidence before him, he would not have stated that there was "no evidence whatsoever to support his (the Appellant's) story that he was attacked by the deceased." Unless he rejected the line of authorities which led to the Valachia decision he could not have said that there was no evidence to support the Appellant's case of an attack by the deceased. And if he had had the opportunity to consider that evidence his conclusion on the question of provocation might well have been different from that which he arrived at.
Whereas the unsworn statement which the Appellant made in Court merely stated that he acted through provocation from his deceased brother without further explanation the extra-curial confession statement contained some particularity of the nature of provocation given. It said amongst other things, the following about the Appellant's encounter with his brother on that fatal day:
"We quarelled and fought behind the hut. Moshe hit me on the shoulder with a fist. I had on hand a hoe handle. Moshe's fist on my shoulder was so powerful that it nearly landed

q
me on the ground. As a result of the impact of Moshe*s fist I supported myself with one of the pillars of the hut. When I left the pillar of the hut I struck Moshe with the hoe handle. He fell down on the ground. Moshe never stood up again. He died on the spot."
In this Court, the Appellant has told us that by "hoe handle" he was referring to the axe handle which was exhibited in the Court. And though this may import some difference of substance to a reader, it was not the only time that "hoe handle" was used interchangeably for axe handle in connection with this case. In the sketch plan drawn by Detective Sergeant Patrick Manyake of the scene of the crime which was admitted in evidence as Exhibit "C", the Police Officer himself described the instrument as a "wooden made hoe handle."
The point we now make, however, is that what particularity the unsworn statement of the Appellant lacked was supplied by this extra-curial statement. And it would have been open to the learned Chief Justice to look at these particualrs in conjunction with the evidence of Dr. Hanson who had examined the Appellant the day after the incident in determining the question whether the prosecution had proved the required malice aforethought on the part of the Appellant. On the question of provocation by the deceased, the Appellant had been consistent throughout. He must have put it forward as an explanation and that was what led to his examination by Dr. Hanson. He said it before the Judicial Officer in his extra-curial confession statement. As will be recalled from the exchange we earlier quoted from the proceedings at the trial after the charge had been read and explained to the Appellant, he said something to the s^me effect in his plea to the charge. And he repeated the allegation in his unsworn statement before

10
the Court at the end of the prosecution case.
We have said that that unsworn statement in Court was brief and unexplanatory. It may well have been that its brevity was due to the fact that the Appellant thought he had already explained the particulars before the Judicial Officer the very day after the incident when the facts were fresh in his mind and that that statement was before the trial Court so he need not go over the same ground again. However, there is no need to speculate. That statement should have been before the Court, and had it been put in, the Court would have been bound to give it what weight it thought the circumstances justified. In this regard one thing which the trial Court would not, we are sure, have failed to notice was the fact that in that extra-curial statement the Appellant had said that the deceased hit him hard on the shoulder that he nearly fell. The evidence of j)r. Hanson on his examination of the Appellant the next day which we quote from the record, was as follows:
"The only thing I found was he had slight contusion with tenderness medial to the left scapula.

Can you explain what this means.
Contusion means some swelling due to some slight blow of some sort.
And tenderness, what does that mean.
Soreness pain when you touch it.
Did you find any other injuries on the person you examined.
I found no other injuries on the accused.
You said that could have been caused by a slight blow, with a fist is it possible.

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Probably a fist.
If for example it is a fist, how much force would have been used.
Considerable.
Would you say whether it is possible for such for such a blow to result in a person having fallen down.
Yes he could fall down."
That was the doctor's evidence in answer to prosecuting counsel's questions in examination in chief. Of course the doctor could not have gone further than this. All kinds of suggestions may be put to him about possible causes of the Appellant's injury as indeed it was the suggestion later put by the Counsel of the possibility that the injury could have resulted from someone falling and knocking against something. If such possibilities cannot be ruled out the doctor would be bound to admit to such possibilities because he himself was not present at at the scene and could not therefore, say what actually hapenned. The fact, however, remains that the Appellant on the day after said to the Judicial Officer that he had been provoked by being hit by a heavy blow on the shoulder by the deceased, and the doctor indeed found an injury on the soulder which could have been caused by a heavy blow given by a fist. Surely this was a matter worth some consideration by a trial Court in its assessment of malice aforethought.
We are sure t^.at the learned Chief Justice dismissed the Appellant's case of provocation in such few words because of the unfortunate omission to put the Appellant's extra-curial statement in evidence. And had that statement been put in,/mi,~ht well have come to the conclusion that there /he was reasonable doubt in the evidence of the prosecution given by the unsworn evidence of the girl of seven and the other woman that the attack by the

12
Appellant was unprovoked. The prosecution would not then have discharged its duty to prove the case beyond reasonable doubt.
Consideration would no doubt have had to be given to the manner of retaliation of the Appellant on the assumption that he had been provoked. In this regard, the fact that the Appellant said that he hit back with the instrument in his hand at the time might have satisfied the Court that the retailiation was spontaneous and therefore not disproportionate in the circumstances of this case.
We are reminded that the Appellant came before us because he was given leave by the Chief Justice to Appeal against sentence only. We thought when the matter of the omission of the extra-curial statement from the record came to our notice that this was a proper case in which we should grant leave to the Appellant to appeal against his conviction as well, and we accordingly did so.

For the reasons given, we think that the conviction for murder in this case cannot stand. We accordingly set it aside and substitute therefor a conviction for manslaughter.
What is an appropriate sentence to impose in this case? We have noticed that despite the fact that the trial Court found the Appellant guilty of murder, the sentence imposed upon him and against which he appealed was for seven years. In his judgment on sentence the learned Chief Justice took into account the report of the Psychiatrist to the effect that the Appellant suffered from posttraumatic grand mal epilepsy, and although the changes in personality were not deep enough to impair his mental responsibility, further antyepileptic treatment was strongly recommended. The Chief Justice had observed that though the Appellant's mental illness did not have any direct bearing on the killing, it must have

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affected the Appellant who would clearly need treatment for a long period. The Chief Justice also took into account the Appellant's age and the fact that for nearly half a century he had led a blameless life. Against that was weighted the seriousness of taking human life. In sentencing the Appellant to the term of seven years, therefore, the learned Chief Justice ordered that the Appellant be treated as an out-patient or whichever way the Prison Authorities thought fit, for epilepsy. Save for the term of years given, we endorse the observations and order of the Chief Justice.
We understand that following on the order the Appellant has been receiving psychiatric treatment and that his position has stabilised. We also understand that if we were to make an appropriate order this treatment would continue for the Appellant's, and the community's, benefit.
We think that in the circumstances of this case the appropriate sentence should be five years imprisonment, backdated, as was done by the Chief Justice, to the 2nd of June 1982. We further order that during this term of imprisonment the Appellant should continue to receive the psychiatrist treatment.
. B.Wunissar J.A.
I agree:         L. S. Baron
J.A


I agree:         L. Van Winsen
J.A.

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