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Gaolatlhe v The State (Criminal Appeal No. 1 of 1987) [1987] BWCA 5; [1987] B.L.R. 362 (CA) (30 June 1987)

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2
guilty of Murder.
The Appellant appeared in person before us and although he had appealed against sentence only it was suggested that he ought formally to have appealed against his conviction as well.
Miss Solomon who appeared for the State very fairly agreed that an amendment to permit of the Appellant appealing against his conviction be allowed. It is not necessary for the purpose of this judgment to set out the details of how the shooting took place. The Appellant had had trouble in connection with removing reeds in a river and a quarrel ensued during which the Appellant fired a shot from the rifle that had been handed to him, according to the person in charge of the boat, before the shot which caused the death of the deceased.
In a judgment given by the learned trial Judge on the question of extenuating circumstances there are certain observations which made it clear to this Court that the Appellant was not guilty of Murder. I refer particularly to page 19 of the record. Without reading the whole of that page I should deal with the paragraphs which seem to be of particular relevance to the present case. The learned Judge pointed out that it was only the evidence of of the first witness who was in charge of the boat and who was in charge of the rifle, that the deceased had loaded a bullet into the rifle and the learned Judge proceeded:
"        but in my view there
remains the possibility that the deceased when loading the rifle cocked it - possibly to check the action and then forgot to return it to the magazine."

3
To continue with the words used by the learned trial Judge:
"I say this despite the evidence of PW1 that the accused cocked the rifle before firing at the deceased."
And he continues:
"There is no doubt at all that the accused was criminally reckless in lifting the rifle and pointing it in the direction of the deceased but in view of the uncertainties which I have expressed I take the view that it is possible that the accused might have thought that the gun was unloaded and that this had a bearing on the accused's state of mind in doing what he did."
        When the learned trial Judge used the word 'possible' he
could only have done so in the sense of "reasonably possible".
There is no doubt that this is the correct interpretation to be
put on the word "possible" having regard to the subsequent
sentences on the same page.
Miss Solomon was in agreement with the proposition put to her that on the learned trial Judge's finding to which I have just referred the Appellant should not have been found guilty of Murder but should have been found guilty of Manslaughter. Again in agreement with the Bench Miss Solomon thought the sentence had to be substantially reduced.
In my judgment a sentence of 5 years' imprisonment would meet the justice of this case. This appeal is therefore allowed. The conviction of the Appellant of murder and the sentence of 15 years' imprisonment are set aside and there is substituted "guilty of Manslaughter and sentenced to imprisonment for 5 years."

A
In accordance with the practice almost invariably followed in this Court the sentence is to begin to run as from the 11th December, 1985, the date upon which the Appellant was taken into custody.

I. A. MAISELS, Judge President

I agree



A. N. E. AMISSAH Judge of Appeal

I agree
L. de VAN WINSEN Judge of Appeal

GIVEN at Lobatse this 30th day of June, 1987.