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Mhlanga and Another v The State (Court of Appeal No. 38 of 1986) [1986] BWCA 23 (5 December 1986)

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was of the view that the injuries were caused by a blunt instrument and when shown the spade handle alleged to have been used to attack the deceased he said that considerable force would have had to be used as it is hollow. The lacerations on the deceased's head could have been caused by the sharp edge of the spade handle. He was of the view that a considerable amount of force was used. He was certain that the deceased was dead when his body was thrown into the pond. From the location and nature of the injuries it would appear that more than one injury may have been caused by one blow.
The matters in issue before the Judge a quo and before us were :-
Whether or not the two appellants were responsible for the deceased's death;
If so, whether they are guilty of murder with or without extenuating circumstances; or
possibly a lesser offence?
The proof tendered by the prosecution to connect the appellants with the deceased's death consisted of direct evidence of a friend of the appellants; the circumstantial evidence of a number of police officers who visited the hut occupied by the appellants and the

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deceased; the pointing out by the appellants of the sewage pond in which the body was found and the precise place where the spade handle and the shoes of the deceased were found and finally the statements made by the appellants to the Chief Magistrate of Francistown.
The evaluation, admissibility and weight of the evidence fall to be considered.
The direct evidence implicating the two appellants was given by Newton Rodgers Nyoni. The effect of his evidence was that he was present when the deceased started to quarrel with the first appellant until the deceased had ordered him to leave. Later the first appellant made enquiries about the depth of the sewage pond and when even later he was asked how the quarrel had finished, there was an admission by the first appellant that he had killed the deceased the previous night.
The credibility of this witness was challenged before the Court a quo and before us. The grounds advanced were that he was detained and fed by the police without reason and that the witness did not reply to the direct question put in cross-examination as to why he did not report the admission made by the first appellant to the police when the question was put the first time. The answer to the first criticism cannot be of

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any assistance to the appellants. Counsel representing them at the trial, who was not Mr Gaongalelwe who appeared before us, did not enquire from the witness to describe the circumstances under which he stayed or was kept at the police station. The brief enquiry made by Counsel showed no more than that the witness who, like the appellants lived in a refugee camp some distance away from the police station was asked to stay at the police station during the investigation. Although the witness said that he was in fear he was not asked what he was afraid of. Far from there being any support in the evidence that the witness was compelled to make an untrue statement to the police implicating the appellants (which was not even put to him) he said that the station commander told him "to be free and not fear anything at the police station".
It is correct that the witness was in difficulty when first asked why he did not report the damaging admission made to him by the first appellant. When pressed further he answered that he did not believe that the first appellant was serious. This is not a satisfactory answer having regard to the seriousness of the matter. However this, weighed against other coqent factors is not sufficient to lead us to the view that the witness was untruthful. It is not clear from the brief cross-examination as to

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precisely what portion or portions of his evidence was put in issue.
The witness was a friend of the appellants. His evidence that the deceased was the aggressor and ordered him to leave when he tried to help the appellants is hardly consistent with a desire on his part falsely to implicate them in a very serious offence. The Court a quo accepted his evidence. No sufficient reasons have been advanced why we should be of a different view. Counsel for appellants argued that the trial court should have had the witness recalled when in the ruling rejecting an application for the discharge of the accused at the end of the prosecutions case, it was pointed out that the circumstances of his stay at the police station had not been fully investigated. No application for the recall of the witness appears to have been made. It may well be that the trial judge should have had the witness recalled. There is no reason to believe, however, that the picture that was so briefly presented would have been materially different if the witness had been recalled.
The pointing out of the sewage pond and the spade handle and shoes is deposed to by Constable Dick Moyo and Sibongi Nkosi Joel Mangena and Inspector Ndlovu . The evidence is sketchy but it would

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appear that both accused were involved in the two pointing out trips undertaken. Although there may be some superficial conflict as to what precisely each appellant pointed out and who led whom to the pond there is no doubt in the mind of Constable Dick Moyo who says that the accused No. 2 pointed the spade handle and the deceased's shoes hidden in the ash. He also says that they both took him where the spade handle was. Although the witness was cross-examined and it was put to him that he used force in order to extract admissions from the accused, it was not put to him that his evidence in relation to the pointing out of the spade handle and the shoes were incorrect. Accused No. 1 however said in his evidence in chief that this did not happen. By implication the Court a quo accepted the evidence of Moyoon this point. The Zone and Administrator confirms that the spade handle and the shoes were retrieved from the ash. He says that it is not correct that accused Nos. 1 and 2 were led to the pond. They were asked by some four policemen to take them there and they did so. This evidence is further corroborated in the main by Inspector Ndlovu. Constable Moyo's suspicions were aroused by the appellants' explanations about the absence of the deceased's blankets, the wet floor and the presence of blood on the floor of their common homeand on the deceased's bed.

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It must have been obvious to Counsel for the defence and everyone else in Court that the State intended to prove the statements made by the appellants to the Magistrate; they all must have known that it was necessary to prove that the prosecution had to prove that they were freely and voluntarily made and that a trial within a trial would have to be held before they were admitted in evidence.
The prosecutor appears to have thought that he was going along the path of proving that the statements were freely and voluntarily made even though no formal objection was made by Counsel for the defence. He called the Chief Magistrate Francistown A.D. Amstel who produced the appellants' statements which were received as exhibits. Again there was no objection by Counsel for the appellants. The magistrate said in his evidence in chief that he questioned the appellants and recorded their answers and that the accused signed their statements. In cross-examination he said that he could not remember if he introduced himself as a Magistrate nor whether or not the statements were read back to the appellants through the interpreter. It was not put to him that the appellants would say that they were not asked any questions, nor that the interpreter read from a document nor that the appellants had not signed their statements.

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The prosecutor also led evidence of extrajudicial statements which amount to important admissions or even confessions to police officers which would not in the ordinary course of events have been admissible. It is not clear whether this was in order to prove them as admissions or confessions or whether he was leading the evidence in order to show the circumstances under which the appellants came eventually to come before a magistrate. It was put to one of the police officers that they had assaulted appellants but this was denied.
When the prosecution closed its case counsel for the appellants submitted that they had no case to meet and asked for their discharge. He submitted that the two statements were inadmissible. The Judge a_ quo (as he was entitled to) expressed considerable surprise at the belated challenge to the admissibility of the statements. Defence counsel conceded that it was a deliberate tactic to bypass the usual voir dire or trial within a trial procedure, a practice which he said he had adopted in other trials. The procedure adopted by him came as a surprise to members of this Court.
The Judge a quo has quoted a number of cases and an article "The voire Dire and The Jury" in the 1986 Cr. Law R 26 6 and a number of cases where the bypassing of the procedure has been sanctioned in jury trials.

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Be that as it may we share the learned Judge's view that the practice should not be sanctioned in Botswana. There is considerable doubt as to whether any practice such as counsel for the defence alluded to exists here. The contents of the statement ought to be kept out until there is a finding that it was freely and voluntarily made unless it is suggested that the information contained therein did not come from the accused. See S v Gaba 1985 (4) SA 734 (AD).
Be that as it may, the failure to put in issue the admissibility of the statements, the failure to challenge relevant evidence such as was given by the interpreter and the Chief Magistrate and to then call the accused to contradict them and say that they failed to perform their duty properly is completely unacceptable conduct. Whatever allowances may be made to unrepresented accused for failure to cross-examine, completely different considerations apply when an accused is represented.
There are two aspects to which attention should be drawn. The second proviso to section 22 7 requiring the confirmation of a statement made to a member of the Police force by a magistrate may be rendered nugatory if the magistrate does not in the clearest possible terms inform the deponent to a statement that he is a magistrate,

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that he is independent of the members of the Police Force, that the deponent has a right to remain silent and that he is not obliged to repeat any statement that he may have already made to a member of the Police Force. Failure to do so may in borderline cases (depending on all the other relevant considerations) tip the scales against the prosecution and the otherwise admissible statement may be rendered inadmissible. Failure to read back and confirm the statement made by a deponent may in certain cases, especially where an interpreter is used and where certain words and nuances may be important in the meaning of the statement may make the court's task unnecessarily difficult. Consideration should be given to adapting the form used in a manner which will make it unnecessary for magistrates to rely on their memory as to whether or not they introduced themselves as such and whether or not the statement was read back and confirmed by the deponent.
The failure of counsel for the appellants fully to investigate whether or not the statements were freely and voluntarily made does not relieve a court from doing it itself. In a proper case the trial judge may have to recall witnesses or take further steps to satisfy himself that the statements were freely and voluntarily made. The absence of a formal voire dire procedure or trial within a trial does not render the statement inadmissible.

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(cf Ajodha v The State (1982) A.C. 204). See, also, S v Mkwanazi 1966(1) SA 736 (AD) where the dicta of Williamson J A are correctly summarised in the headnote:
"The question of the admissibility of a confession must be decided by, and remains throughout the trial the sole responsibility of the presiding judge. If other factors touching upon the question of admissibility appear later in the trial he can and should reconsider any earlier decision."
The question that has to be answered on appeal is therefore whether the court a quo correctly admitted the statements of the appellants, first during the State's case when they were tendered and having done so whether or not the decision should have been altered after the appellants had given evidence repudiating the statements.
However regrettable the magistrate's inability to remember whether he had introduced himself as a magistrate to the appellants and whether or not the statements were read back to them, the court a quo had no option but to admit the statements especially as there was no objection to their production by counsel for the defence.
The appellants then gave evidence upon matters concerning both the merits and the admissibility of their statements. They both denied that they had any part in the death of the deceased? they say that they had been

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assaulted and deprived of food by the police whilst they denied responsibility; that they did not point anything out to the police but that the police showed them the body of the deceased, took them to the sewage pond and showed them the spade handle and the deceased's shoes; they deny that they made any admissions to their friend Nyoni.
In relation to the statements made to the police the first appellant having denied that he had taken any part in the events that led to the death of the deceased, he was asked by his counsel whether he made any statement to the police whilst he was in their custody. His answer was "I gave a statement as I am doing to court now; I said I did not know what happened to the deceased." After saying that he was taken to a person now known to have been the magistrate whom he believed to be a policeman and that he made a statement now known to have been interpreted he says that the statements do not reflect what he said and repeats "I told the magistrate through the interpreter what I have just told the court".
In cross-examination he said that they, referring to both the police and the magistrate wrote what he did not tell them. He suggested that the interpreter was told by the police what to tell the magistrate. He denied

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magistrate. It is so far fetched that it is not
worthy of serious consideration. The court <a quo
was correct in rejecting their evidence as being false.
The finding that they made the statements to the magistrate which were produced as exhibits therefore stands.
Should the Court a quo have recalled the State witnesses to put to them what the appellant had said contrary to their evidence? The discretion of the court in terms of Section 200 of the Criminal Procedure Act is wide. Where, however, it appears to the trial court that the re-call of a witness is essential to the just decision of the case, the court is obliged to recall the witness. No application appears to have been made by counsel for the defence. That again is not the end of the matter. Should the learned judge have recalled the witnesses?
Generally where disputes of fact as important as the ones in this case emerge a trial court ought to avail itself of its right and duty to recall the witnesses. The time and expense involved may be regrettable. The danger of a miscarriage of justice occurring far outweighs any inconvenience and expense.

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On the facts of this case, however, where some of the allegations of the appellants were already denied by the State's witnesses, the allegations made for the first time were completely inconsistent with what had already been denied by them and were so improbable and far-fetched the court a quo was correct in not re-calling the witnesses.
At that stage consideration might have been given as to whether a revision of the ruling admitting the statement was necessary. However, if this was done there would have been no ground for revising the earlier decision because of the completely unsatisfactory nature of the evidence of the appellants.
The overwhelming probability is that the appellants, shown the deceased's body wrapped in his blankets, being questioned about the recently washed floor, the presence of blood on the floor and on his bed and knowing that their quarrel with deceased shortly before his death was known to at least one other person who might testify against them, made inculpatory statements to the police officer who was accompanied by the District Superintendent, disclosed to the police where the spade handle and shoes were buried and that they thereafter made their statements to the magistrate

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freely and voluntarily without having been unduly influenced to do so.
When one looks at the contents of the statements themselves the probability becomes even greater. The statements are to a large extent an attempt to reduce at least the moral blameworthiness of the appellants. This would make it more likely that they would want to speak than that police officers would compel them to make a self-serving statement if the appellants believed (as they must have) that there was evidence to connect them with the crime.
The statement of the first appellant is a clear narative of the events shortly before the deceased's death, the manner in which he was attacked and the disposal of his body after his death. It is completely consistent with the medical evidence relating to the injuries on the deceased and the findings by the police when the body was recovered.
The statement of the second appellant although briefer is subtantially similar to the first appellant's. The contents of the statements may be looked at in certain circumstances to determine whether they were freely and voluntarily made. In view of the appellants' evidence

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that they were not responsible for the contents, the court is entitled to look at them.
See Wong Kam-Ming v The Queen (1979) 1 All ER 939 and S v Lebone 1965 (2) SA 837 (AD)
There was no suggestion by the appellants at any stage that the police officers or anyone else apprised them of the nature of the injuries or the manner of disposal of the body. The conclusion is inescapable that it was their own personal knowledge.
On the evidence as a whole including their statements it is clear that the injuries that caused the deceased's death were inflicted by the two appellants.
It was argued by counsel in the court below but not persisted before us that the blows may have been struck in self defence. The court a quo rejected the argument for good reasons. The conduct of the appellants after the blows were struck is completely inconsistent with their having acted in self defence as is the nature of the instrument used and the degree of force. The killing of the deceased was therefore unlawful.

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A further question that arises is whether the prosecution has proved that the killing of the deceased was with malice aforethought. Although the deceased was the agressor, he had no weapon, the two appellants could easily have overpowered him without inflicting mortal blows. The court a quo for good and adequate reasons found that the two appellants acted in concert with an intention to cause the deceased's death or do him grievous hodily harm likely to cause the deceased's death. The appellants were therefore correctly convicted of the crime of murder.
The court a quo found that there were no extenuating circumstances and sentenced the appellants to death.
The court a quo considered two possible circumstances that might extenuate the appellants crime: their immaturity and provocations.
The court a quo dismissed the first by saying that the appellants are well developed young men and by their demeanour when giving evidence suggested that they are very mature young men. The learned judge does not indicate what it was in their demeanour which led him to that conclusion. Their demonstrable untruthfulness is

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hardly evidence of maturity. Their physical development appears to be normal but it is not a good guide to maturity. What the learned judge a quo ought to have had regard to is the age of the two appellants 18 and 20 years respectively.
RUMPFF C J in S v Lehnberg en h ander 1975(4) SA 563 held that:
"The death sentence ought only to be imposed on a teenager, who has committed a murder, if it actually appears that he killed out of inherent wickedness. Such an approach does not mean that in such a case no onus rests on the accused with regard to extenuating circumstances. It only means that a teenager is prima facie regarded as immature and on that ground extenuating circumstances can be found unless it appears that the wickedness of his deed rules out immaturity. The youthfulness of a teenager will serve as extenuation especially if other factors influenced his personality on account of his youthfulness. It also means that a person of 20 years of age or older can show, by acceptable evidence, that he was psychologically immature to the extent that his immaturity could serve in extenuation."
In S v Letsholo 1970(3) SA 476 HOLMES J A set out all the factors to be taken into consideration in determining whether or not extenuating circumstances existed. This case has often been followed in this Court. There are a number of other cases in which similar reasoning was adopted. WILLIAMSON J A in

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show his contempt, He says "He wanted me to sleep, cook, wash the plates". When he refused he was ordered to find other accommodation. He was insisting on not eating with the appellants and apparently helping himself to more food than he was entitled to. However hospitable a refugee camp may be, food for young people away from their homes must be a matter of considerable importance. Calling the appellants "boys" and himself a soldier to whose whims they had to subject themselves is further provocation. Had they planned to attack
the deceased there might have been some merit in the suggestion that they should have gone to the Camp Administrator. But they did not plan it. The first appellant's words are compelling on the issue
"When I got back to the tent I found Gabriel quarrelling with Joseph. Gabriel was saying he was going to pick Joseph. He insisted he should go back to the tent where he was staying. When I greeted only Joseph answered. Then I undressed and slept on top of the blankets. It was dark inside. Gabriel and Joseph were sitting on separate beds, opposite each other. Gabriel then slapped Joseph. Joseph fell down while Joseph was still on the floor Gabriel started strangling him. Joseph got hold of his feet and tried to push him away. I got up from the bed and picked up a piece of metal which was lying next to the tent and hit Gabriel with it. Gabriel fell on his bed. I threw away the metal and got hold of his legs. Joseph got up from the floor, picked up a piece of metal and hit Gabriel again. Joseph then said it

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was possible that Gabriel might be dead because there was no movement in his hands. Then I asked Joseph 'what are you going to do'? Joseph then said 'It is better to take him and throw him out on the bush, so that the police would not see."
One can hardly say that the appellants killed the deceased "out of inherent wickedness". Looking at the evidence as a whole in my opinion the moral blameworthiness of the appellants has been reduced to such an extent as to justify a finding of extenuating circumstances.
I would therefore confirm the conviction of the appellants of the murder of GABRIEL CHIRWA but would find that there were extenuating circumstances and would set aside the sentence of death.
The sentence I would impose on the appellants would nevertheless be a severe one. The killing of the deceased was completely unnecessary. The gruesome manner in which they tried to dispose of the body is an aggravating factor even if allowance is made that the appellants panicked after they killed him. I would impose a sentence of 10 years imprisonment.

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G. BIZOS
JUDGE OF APPEAL

I agree:         _{I. A. MA1SELS}