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Phofedi v The State (CA 39/86) [1986] BWCA 6; [1987] B.L.R. 19 (CA) (1 January 1986)

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testifying in his defence said that he had known the deceased, Pona Dikamu, since 1981 and that she had moved into his house some three months before she died. On 24 August 1985 appellant on returning from his word at a garage at about 3 p.m. met the deceased at his home. At 4 p.m. they parted, the deceased going off to watch a football match after arranging to meet appellant later at the Becorner Bar. Appellant proceeded to the bar on his own some time later and in doing so followed a route which proceeds along a stony path. The trial court accepted his evidence that he took that path to get to the bar but that because of its stony surface he and deceased did not use that route when they _, left the bar together later that night.
A number of witnesses were called by the State to testify as to what happened at the bar. The trial Judge found that he could not attach any weight to the evidence of the witness Annah Nyolonko nor to the evidence of Ellen Kopelo. Indeed he states in his judgment that the only witness whose testimony he can accept in regard to what happened in the bar was that of the appellant. Exactly which portions of the latter's evidence he did accept - it contained contradictions - is not clear but in any event he found that the evidence about what happened there is "neutral" and that nothing "abnormal" occurred, by which I understand that the learned Judge wished to convey that the evidence did not cast any light on what subsequently happened between appellant and the deceased. Statements of certain persons were placed Defore
the/..

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the Court by agreement with the defence. Such agreement doe not serve to render admissible as evidence what, had it been tendered in evidence in court, would not have passed the test of admissibility. It was on this ground that the trial court correctly had no regard to the contents of the admitted summaries of evidence of Molongwa and Modimola.
The judgment then proceeds to a consideration of the events that took place after appellant and the deceased together left the bar. On this aspect of the case the Court was largely thrown back on appellant's version of what occurred.
Appellant said that he and the deceased left the
bar together. He was uncertain of the time. It could have
been 11 or 12 o'clock at night or at 1 or 2 o'clock the next
morning. They were going to his home from where he had
come earlier in the day. He said he was wearing a pair of
red trousers, a red jacket and a white shirt and white shoes.
On the way home, so appellant testified,
"a man came from behind and he challenged me and Pona shouted and ran away and I also ran away.... He (the man) was coming from behind and he stabbed me with a knife from my back but at the time I did not notice he stabbed me. When I tried to attack him he hit me on the face."
He said he was stabbed by this man at the back of his left
shoulder. He was also stabbed on the cheek and on the arm
as he tried to ward off the attack. In answer to a question
by his counsel appellant said that deceased ran in the
direction in which he and deceased were going and he ran in
a/...

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a different direction from that taken by the deceased and he joined Gabane Road and then decided to go home. Having arrived there he sat on his bed "but I fell asleep immediately thereafter". Later, under questioning by his counsel, he said he fell asleep within about five minutes of his arrival.
The State adduced the evidence of Ranini Moabi, the complainant in the second count, who said that on the 24th of August on his return to his home from patrol duty he heard a person shouting, saying "Please help me, somebody is killing me". Going in the direction of the shouting he found a young girl fallen inside a courtyard. (It was not in dispute that this was the yard of Ralefala.) He questioned her but she did not reply and he went in search of the person "who could have done anything to her". He solicited the help of another man in a neighbouring yard. They found someone hidden behind a tree in a yard adjacent to where the deceased lay. This man came running past him and stabbed him with a knife. He identified this man as being appellant.
The trial Judge did not accept his evidence identifying the appellant. He also rejected the evidence of Mosweu, Moabi's companion, who also claimed that he identified appellant as the person who assailed Moabi. The trial Judge nevertheless concluded that the man who had stabbed Moabi was the person who had killed the deceased.
Moving on then to the events of the following day, appellant testified that he discovered when he woke up at about 6 o'clock that he had some wounds on his body. He

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reported this to a person called Simon Mntande who told him to report the matter to the police. He also on waking observed that the deceased had not arrived back at his home. He says that he thought that she had gone to her own home but said he had decided he would check on her later. On his way to report to the police he was met by them and he accompanied them to the Princess Marina Hospital where the staff treated him and bandaged his wounds. It did not occur to him to report the absence of the deceased to the police. He stated that he did not think that the man who had attacked him would have killed the deceased. He claimed not to have known of her death until informed about it by the police who took him to the mortuary where he identified the body of the deceased as the person he had been with the previous night.
The defence called Simon Mntande who now lives some distance from appellant's home but in August 1985 he lived in the home of appellant's older sister which was where appellant too lived. He remembers the occasion when the deceased died and he learnt of her death when "One other boy came to us in the morning and told us that the girl is dead". The "us" referred to this witness and appellant who were together at the former's house where appellant had that morning described to Mntande how he and the deceased had been attacked by somebody with a knife. A person by the name of George Dube - the witness said -had joined them at appellant's home while appellant was
giving/..

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giving an account of what had happened to him the previous night. This person informed them that the girl with whom appellant had been the previous night was dead. Appellant, according to Simon, did not react in any way to this news. Simon testified further that before they left to go and report to the police two other men arrived at appellant's house, viz. Mmoloki and Maungo. They arrived to see appellant as they had heard that his girl friend, the deceased had died. Nothing was said about the manner of her death.
George Dube was called as a witness and gave conflicting evidence as to when he had first heard of the deceased's death. At one stage in his evidence he said it was after he had been to see appellant, at another he said it was before he had seen appellant, i.e. when he was on his way to go and see appellant. A perusal of this record demonstrates clearly that in this respect as well as in others, not necessary to detail, George Dube was not a credible witness and his evidence was rejected by the trial Court. The evidence of Simon Mtande, on the other hand, was found to be acceptable.
It is evident from the above brief reference to
the evidence that no direct evidence was adduced to the
effect that appellant had committed either of. the crimes laid
at his door by the State. The trial Judge was well aware
of the fact that therefore a conviction of appellant on
the charges he faced could only rest upon circumstantial
evidence. He dealt fully in his comprehensive and careful
judgment/..

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judgment with the approach which a court should adopt in cases where a conclusion is sought to be founded on reasoning by inferences, viz., that the inferences sought to be drawn must be consistent with the proven facts and that they must be the only reasonable inferences that could be drawn from such facts.
Sight must not be lost of the fact that this Court, sitting as a court of appeal, is not in as advantageous a position as a court of first instances in arriving at a decision as to what can be accepted as being proven facts. When, however, it comes to a matter of drawing inferences from those facts this Court is in as good a position as the trial Court was to do so. There is no basis upon which this Court can conclude that the trial Court erred in its factual findings or in its conclusions as to the credibility of the various witnesses testifying before it. If this Court is to differ from that Court's conclusions it could only be on the question as to whether the inferences drawn by it were correct.
It would be useful to summarize the findings of the Court a quo on matters of fact and on the credibility of witnesses. They are as follows:-
(1)      No reasons existed for rejecting appellant's evidence that he had a happy and peaceful relationship with the deceased.
(2)      There was no reliable evidence from which it could be deduced either from the words or the conduct of either the appellant or the deceased while they were in the Becorner Bar that evening that the harmony of that
(1)     

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relationship did not persist.
(3)      There was no reliable evidence that it was the appellant who was on the night of the murder the person who was seen lurking behind a rubber hedge in the vicinity of the yard where the murder had taken place or that he was the person who attacked Ranini Moabe, The Court was not prepared to rely on the evidence of Bashe Moabi, Ranini Moabi and Mmusi Mosweu in this regard. The witness, Kgano, who saw a man breaking through a fence after Ranini Moabi shouted for help was however unable to identify this man.
(4)      The evidence of George Dube as to when he learnt of the deceased's death and when He communicated this intelligence to appellant was unacceptable but that of Simon Mntande as to when appellant learned of the death of deceased was acceptable to the trial Court.
(5)      Finally the trial Judge stated that although appellant had made a poor impression on him as a witness he did not rely directly on the appellant's demeanour as a ground for the rejection of his evidence.
I turn then to deal with those factors from which the trial Judge considered that he could correctly draw the inference of appellant's guilt on both the counts with which he was charged. Referring to those factors chronologically there was the fact that the trial Court found appellant's explanations on his reactions to the attack on him as "profound unconvincing" and "not the likely reactions of a reasonable man"; the fact that there was no motive for this attack; hi

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absence of concern for the fate of his girl-friend, the deceased; his "unlikely explanation" as to how he came by the injuries on his person as a result of the attack and that he did not realise that he had been stabbed; appellant's conduct the next morning in taking no steps to set in train an enquiry as to the 'fate of the deceased; the fact that he lied when he testified that it was from the police that he heard for the first time of the death of the deceased. The trial Judge characterized appellant's evidence as a fanciful tale and coupling certain of the probabilities inherent in appellant's version of the events with the fact of the geographical propinquity of the place of the alleged attack on appellant to Ralefala's yard where the deceased was found and where appellant would naturally have passed on his way home - he stated that "the inference that it was the accused who both stabbed Pona Dikamu to death and assaulted Ranini Moabi becomes an overwhelming certainty". The judgment goes on to state "that there is no piece of circumstantial evidence which counters the inferences I draw".
This latter statement calls for the immediate comment that the conditions laid down by the courts that require to be satisfied before an inference can legitimately be drawn do not relate to an inference being tested against "circumstantial evidence" but against "proven facts". So tested, the inference drawn by the trial Court runs starkly counter to a proven fact, viz., that there was a happy relationship between appellant and deceased and nothing had
occurred/..

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occurred between them immediately before deceased's death to disturb that relationship. There could thus have been no apparent motive for the murder of deceased by appellant.
Assuming that appellant had in fact been attacked and run away - and there is no evidence to gainsay that of appellant that he was so attacked - then such sequence of events would preclude appellant from having been the deceased's attacker as well as that of Ranini Moabi. Appellant at least has his wounds to support his version of the attack on him. The suggestion that the wounds might have been self-inflicted appeared to the medical officer to be no more than a possibility and the theory that they might have been inflicted by the deceased in a struggle with the appellant does not enjoy a higher status than that of a speculation. It is true that appellant's lack of concern fo the safety of the deceased both on the night of the attack and on the next day appears to be callous but there is no knowing whether it is out of character or not. True, appellant's lie as to when he first heard the news that deceased had died is inexplicable but it does not appear to have any direct bearing on appellant's guilt or otherwise. Apart from affecting his credibility it does not lend support to the conclusion that he is a murderer. It is undoubtedly a possibility that the person who killed the deceased and attacked Moabi is one and the same but what does seem strange is why the murderer of the deceased should have remained lurking behind a hedge in proximity to the scene of his crime
instead/..

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instead of making his escape. There is too wide a field of speculation present in this regard to enable a court to draw any firm inferences that there was but a single perpetrator of both crimes.
I conclude therefore that the trial Court erred in drawing the inference that appellant committed the crimes with which he is charged. The appeal is accordingly allowed. Appellant is found not guilty on both counts and discharged.