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Molefi v The State (Court of Appeal No. 35 of 1986) [1986] BWCA 24; [1986] B.L.R. 452 (CA) (5 December 1986)

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Zimbabwe border in July, 1984. They were living in Nlaphwane Village. On the 29th of July, he caused the death of one Lucas Ntsha. As a result of this act, the Appellant was charged and convicted of murder in the High Court. The learned trial Judge found extenuating circumstances and sentenced the Appellant to ten years imprisonment.
The Appellant appeals to the Court against both conviction and sentence. The grounds of his appeal are:
(a) The learned Judge erred in convicting
the Appellant for the offence of murder without malice aforethought proved beyond reasonable doubt.
(b)      The learned Judge a quo erred in finding that the test of proving malice aforethought was the objective test.
(c)      The sentence passed by the Learned Judge a quo was excessive and does induce a sense of shock.
The facts of the case, as far as I can determine
them are these. The Appellant, as said earlier, was
posted with two other members of the B.D.F. on
operational duties in the border area on our side of the
Botswana-Zimbabwe border. Obviously there had before then
been cases of illegal entry into Botswana by Zimbabweans.
And one of the objects of the B.D.F. presence in the area
was to look for and to arrest such Zimbabwean infiltrators
The evidence of the Appellant's immediate superior in
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their group of three was that they went on operational duties each time in pairs. The third member of the group remained behind to look after their equipment. According to that witness, the members of the B.D.F. themselves never arrested the Zimbabweans discovered. The B.D.F. worked closely with the Botswana Police Force, and all arrests were made by the Police.
On the night in question the Appellant went out by himself to the home of Ngumu Sethako where chibuku was sold. There were others there. Ngumu was selling her chibuku. And she had in the room four customers, one of these was the Deceased who was with his close friend, Joseph Majuta, popularly known as Door. The other two were Patrick Bathini and Chuma. The Appellant must have appeared on the scene some time after 8 o'clock that evening, because there was evidence that he got out from the home where the three B.D.F. members were billeted after the news at 8 p.m.
At Ngumu's hut, the Appellant had first ordered and drunk two packets of chibuku. Then he ordered two more and offered them round the customers there. So far, the atmosphere must have been cordial. But then at one time the Appellant went out of the hut. About the same time Door also went out. What happened between them is one of the disputed areas of the story. Door in his evidence, said that the Appellant had while they were outside accused him,
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Door, as well as his friend, namely, the Deceased, of being Zimbabweans. The Appellant, according to this version of the story, ordered Door to get inside the house in order to stop Door from running away. Door's story seems unlikely, because . he himself said in evidence that it was he that the Appellant sent later to the B.D.F. group billet to report that the Appellant had arrested a Zimbabwean. If the Appellant had accused Door as well of being a Zimbabwean, he surely would not have taken that course.
The Appellant's version of the story, which he first gave in an extra-curial statement which was later repeated by him from the dock at his trial, was that it was Door who told him that the Deceased was a Zimbabwean. Whichever be the true version, one thing is clear. After the Appellant went back to the hut, his attitude towards the Deceased changed completely. It became hostile. He accused the Appellant of being a Zimbabwean, and said he was arresting him. He ordered Patrick to fetch a rope to tie the Deceased, and started slappi the Deceased in the face.
When Patrick brought the rope, the Appellant first tied the wrists of the Deceased together in front of him. The slapping continued. The Appellant's behaviour had become hectoring to all around. He ordered the others not to leave the hut. But at some point Ngumu managed to escape to inform one Philime, a teacher, about the happenings at her
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hut. Meanwhile the assault by the Appellant on the Deceased continued. The Deceased at one time fell on his back under the pressure of the assault, and the Appellant fell on top of him. Although the Appellant in his statements said that the Deceased tried to free himself, the evidence from other witnesses was that the Deceased was quite docile throughout the assault, suffering the attack and indiginity without retaliation or attempting to escape. The Appellant later tied the hands of the Deceased behind the Deceased's back, tied his feet together and dragged him outside the hut. There the Appellant tied the Deceased to a pole. In doing so, he tied the neck of the Deceased also to the pole. He then sat by and waited for his other B.D.F. colleagues, whom he had sent for, to join him, presumably to take his victim away.
It is a matter of surprise to me that the other customers at Ngumu's hut stood by and saw a fellow human being treated the way they said the Appellant treated the Deceased without intervening in a decisive manner to stop him. It was said that when Chumu protested, he also received a slap across the face. And Door said he was afraid of doing anything because the Appellant had accused him also of being a Zimbabwean, and threatened to assault him too. But there were three men standing by without lifting a finger to protect the Deceased. Of those
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in the hut, only Ngumu had the courage to escape to make a report.
It is also puzzling that the Deceased should have been subjected to such treatment on the ground that he was a Zimbabwean when he clearly was not. The overwhelming evidence was that he was a Motswana who had lived all his life in Nlaphwane Village. According to the Appellant it was Door who told him that the Deceased was a Zimbabwean. Door denied having told the Appellant that the Deceased was a Zimbabwean. He, however, said further that the Deceased had first told the Appellant that, he the Deceased, was not a Zimbabwean. But after the Deceased had been beaten he agreed that he was a Zimbabwean.
Door certainly cut a miserable figure in the witness box. Indeed, the learned Judge found that he probably assisted the Appellant in tying up his friend's hands to the pole. It probably was Door who told the Appellant about the Deceased being or having dealings with Zimbabweans. There may on the other hand, have been some confusion caused by language difficulties. The Appellant spoke Setswana, while the Deceased spoke Kalanga. It was apparently Door who did the interpreting between the two. And Door himself admitted that he was not fluent in Setswana.
Whatever the origin of this unfortunate belief held by the Appellant that the Deceased was a Zimbabwean, it
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had the most tragic consequences. Philime, the teacher, to whom Ngumu had run to make the report came to the scene. He found the Deceased tied to a pole. Appellant was beating him. But Philime's protests were brushed aside by the Appellant on the ground that the Appellant was doing his work.
At the time Philime reached the scene, the Deceased was still speaking, although, according to Philime, like a person who had been beaten or was frightened. Philime would not accept that the Deceased's words came in a gurgle because he said as he did not know the Deceased he could not say how the Deceased spoke before. However, the Deceased was complaining that "Pitcha, this person is beating me". This suggests that at that time, at least, the Deceased was not choking.
A report was eventually made of the incident by Door, not to the other B.D.F. colleagues of the Appellant as the Appellant had requested him to do, but to the Chief of the village. Even the terms of the report were disputed. The Chief's account was that Door reported that a Zimbabwean had been arrested. Door, on the other hand, said that he told the Chief that the Deceased, whom he went out with, had been tied up on an allegation that he was a Zimbabwean. According to Door, the Chief told him that there was nothing to be done as the person who was the subject of the report
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the Appellant, whether acting alone or in concert with others, was a matter proved without doubt. The only question was whether or not the Appellant did the act with the malice aforethought required to give the act, in view of our law, the character of murder.
Section 209 of the Penal Code defines malice aforethought in the following terms:
"209 Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:-
(a) an intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not;
(b) knowing that the act or omission causing death is likely to cause the death of some person, whether such person is actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused;
(c) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit such offence.
On the facts of this case, category (c) above is clearly
inapplicable. Discussing the other two categories, the
learned Judge referred to the English cases of P.P.P. v
Smith (1960) 44 Cr. App. R. 261, Hyam v DPP (1974) Cr. App.
R 59 and R v Caldwell (1981) 73 Cr. App. R. 13. He quoted
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part of Lord Diplock's speech in the last mentioned case dealing with the state of a person's mind when that person is alleged to be "reckless" as to whether harmful consequences of a particular kind will result from his act as distinguished from his actually intending such harmful consequences to follow. After some discussion of the problem, Lord Diplock had continued thus:
"So to this extent, even if one ascribes to "reckless" only the restricted meaning
adopted by the Court of Appeal   of
foreseeing that a particular kind of harm might happen and yet going on to take the risk of it, it involves a test that would be described as 'objective' in current legal jargon. Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective/'
Despite this caution administered by Lord Diplock on the
inadvisability of approaching the solution of a criminal
question by applying what may be described as a subjective
or objective test, the learned trial Judge continued in
this vein:
"From the findings of fact I have already made, I am satisfied beyongl reasonable doubt after applying the objective test outlined by Lord Diplock that at the time the Accused tied the rope around the Deceased's neck he knew that the act (tying the rope around the Deceased's neck) was likely to cause the death of the Deceased. Here, therefore, I am satisfied that the Accused had the requisite mens rea (section 209 (b)Jto bring in a verdict of murder''.
This is the foundation of the Appellant's objection
against his conviction. Put simply, was the learned
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Judge right in applying an objective test to determine the malice aforethought in'this case?
The application of an objective test to the question of the determination of a man's intention began as a means of arriving at the actual intention. It later acquired such mechanical attributes that the means in itself became the solution to the problem. Counsel for the Appellant, Mrs. Motsemme, in her able argument has drawn our attention to the case of R v Moloney (1985) 1 All E.R. 1025 in which the English House of Lords explained the history of and problems relating to the intention required for murder in English law. The difficulty in the application of that case to our circumstances in Botswana is that our wording in the Penal Code is somewhat different from the words developed through the years for the direction of the jury in murder cases in England. For example, where the English directions had dealt with foresight of probable consequences, our law is clearly stated as knowledge of a likely consequence. Knowledge and foresight may not always coincide. And whereas in England the direction on intent in murder is the result of judicial development, changing with the views of their superior courts, in Botswana the requirements of intent are a matter of statutory law. It has therefore, always been necessary that English decisions on these matters should be used with caution.
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Read with that required caution, the Moloney Case has some useful lessons which we may draw upon.
What the learned Judge had to determine in this case was whether or not the Appellant, in the terms of section 209, knew that the act he did was likely to cause the death of the Deceased. Invoking an objective test to determine this issue is at best unhelpful, but, in any event, it is wrong. It is the particular Accused person's knowledge of the likelihood of a consequence which the Court is asked to investigate, not some imputed knowledge supposed to repose in a reasonable man. It may be a difficult task to perform, but the duty of the Judge is not discharged by attributing to the Accused before him knowledge which he may otherwise not have, on the ground that a reasonable man should have that knowledge. Thp question which the Judge should ask himself in every case of this nature is whether the particular Accused had the required knowledge, and in answering that his aids are to be found in the facts of the particular case, not in some irrebuttable presumptions of the law. Thus the statements, conduct, circumstances, incidents and other material pertaining to the particular case are the relevant matters for the Judge to take into account, and not the application of some objective test.
What the case of R v Moloney cited above teaches is that even in England where the objective test had been
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raised to a legal principle by a decision of the House of
Lords in the case of the Director of Public Prosecution
v Smith (1961) AC 290 approving the direction to a jury
by Donovan J, that -
"The intention with which a man did something can usually be determined by a jury only by inference from the surrounding circumstances including the presumption of law that a man intends the natural and probable consequence of his acts".
the objective test approach had to be overuled by the Criminal
Justice Act, 1967, section 8. And the later confusion caused
by the conflicting speeches of their Lordships in R v Hyam
(1975) AC 55 had put to rest by the Moloney Case itself. So
that now the position in English law is that in cases where
it is necessary for a Judge to give guidance to a jury as to
how they should approach the issue of intent, the law is as
stated in the judgment of the Court of Criminal Appeal in
Rex v Steane (1947) KB 977 at page 1004 where it says:
"No doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged, but if on the totality of the evidence there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury's satisfaction, and if on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted".
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This rejects the law laid down in the Director of Public Prosecutions v Smith which treated the rule of evidence that a man is presumed to intend the natural consequence of his acts as if it created an irrebuttable presumption of law and thereby elevated it to a rule of substantive law. It rejects the thesis that an objective test has to be applied in determining a man's intention in cases where knowledge or foresight of particular consequences is material.
As I said, in Botswana, it is the knowledge of the particular accused of the likelihood of the act done causing death which is required by section 209 (b) of the Penal Code as the intention in the offence of murder. This to my mind does not call for the application of any
objective test. A Judge faced with the issue has to consider whether on the totality of the evidence, including inferences which can be derived from proven facts, the Accused did the act knowing that the act was one likely to cause death. If so, the Accused is guilty of murder, and it does not matter that he was indifferent whether death ensued or did not desire it. But if the totality of the evidence does not yield that conclusion in the particular case, no irrebuttable presumption of law can be drawn upon to save the situation.
What are the relevant circumstances deserving
consideration in this case? I have already stated the
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facts at some length. Briefly one recalls to mind the fact that the Deceased died as a result of the Appellant tying the rope round his neck. The facts show that though the Appellant was acting contrary to instruction in effecting the arrest he nevertheless thought he was a discharging his duty as a member of the B.D.F. sent out on an operation against Zimbabwean infiltrators into the country. There was evidence that he was under the impression, whether through information passed on to him by one of the local residents or from some unexplained suspicion otherwise gathered, that the Deceased was a Zimbabwean. At some stage, no doubt as a result of highly improper inducement in the form of assaults offered by the Appellant, the Deceased,with hands behind his back, feet together and his neck, to a pole.
Did the Appellant tie neck knowing that the act was likely to cause the Deceased' death? It was a difficult question to answer. And the fact that the Appellant did not give sworn evidence and that some of the things said by him in his unsworn statement from the dock were false, gave no help in resolving the issue. But there were two significant points which should have been taken into account by the trial court in trying to reach a conclusion on the state of the Appellant's mind
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at the material time. One was how tight the rope was tied around the Deceased's neck. The other was the conduct of the Accused in the course of the evening.
The evidence on the tightness of the rope round the neck could have been explored much further. The doctor's findings as to the bruises were equally consistent with the rope being tight enough by itself to produce death and as being reasonably loose but that death resulted from the Deceased moving his neck about after sometime. I do not say that the latter alternative absolves the Appellant of responsibility. But it might be a useful indicator of the fact that the Appellant thought he was merely securing the Deceased until his colleagues came and did not realise that what he did was likely to cause the Deceased's death. The fact that teacher Philime arrived on the scene sometime later and found the Deceased able to speak, as the Deceased indeed spoke to Philime, lends some support to this latter probability. The fact that the pressure needed to produce the injury observed by the doctor could, if consistently and continuously applied, have caused death in five minutes, but that the end of the Deceased obviously took sometime to come, may also support the same probability. There was evidence again from Philime that at the time he got to the scene the Appellant was holding the rope which tied the Deceased to the pole behind the Deceased, and it would have made
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some difference if the Court had known whether the Appellant was pulling on to the rope or not. Because while one answer vould have indicated that the Appellant was then trying to strangle the Deceased, the other would not. The matter was, however, left hanging without further exploration.
As to the conduct of the Appellant it will be recalled that he ordered the other customers at Ngumu's hut to remain indoors, and that after tying up the Deceased to the pole ^e sent Door to report to his other B.D.F. colleagues that he had arrested a Zimbabwean. It is highly improbable that he would do that if he knew that the manner of his arrest was likely to cause the death of the Appellant before his companions got there, but that he was nevertheless indifferent to that result.
In short, the Penal Code requires that an accused person should know that his act was likely to cause death. The statute, therefore, lays down in clear terms that it is knowledge subjective to the accused which has to be investigated. The learned trial Judge misdirected himself by applying an objective test. In the circumstances, the conviction could be supported only if the proviso that no miscarriage of justice had nevertheless resulted, could be applied. From what I have said
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before, that is an impossible proposition to maintain. If the Appellant knew that death was a likely consequence of his action, not a mere possibility, it is hardly conceivable that he would, by ordering people to remain in Ngumu's hut and by sending for his colleagues, as he undoubtedly did, ensure that he secured witnesses to his conduct.
The Appellant's conduct that night was outrageous and disgraceful, His treatment of a fellow human being was without doubt cruel and degrading. It was conduct which brought dishonour to the force to which he belonged. But that was not what he stood trial for.
The Appellant was tried for murder. The question was whether he had the intent required by the law for the commission of that offence. If the learned Judge has not applied an objective test to the determination of that intent but had tried to reach that determination of the circumstances of the particular case it is highly unlikely that he would have reached the same result.
It is for these reasons that we upheld the Appellant's appeal against his conviction and set aside the verdict of murder and substituted a conviction for manslaughter. Obviously, the learned Judge thought there were extenuating circumstances which gave him cause to impose a sentence of ten years for the more serious offence.
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We believe that the appropriate sentence for the lesser offence for which the Appellant now stands convicted taking into account the same mitigating factors, should be seven years imprisonment commencing from the date of his arrest.
A. N. E. Amissah JUDGE OF APPEAL
B. A. Doyle JUDGE OF APPEAL

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