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Sharp v The State (Criminal Appeal No. 9 of 1987) [1987] BWCA 9; [1987] B.L.R. 395 (CA) (3 July 1987)
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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 9 of 1987
In the matter of:
KOSI SHARP
Appellant
vs
THE STATE
Respondent
Mrs. E. T. Malakaila for the Appellant Mr. N. Chadwick for the Respondent
JUDGMENT
Coram: Amissah, JA
Van Winsen, JA Doyle, JA
DOYLE, JA.
On the morning of the 22nd of May, 1986, Appellant and a
man named Fitus Sebogwe went off drinking at various places.
During the afternoon they met the deceased. They continued
drinking with him and as they left a bar deceased suggested that
they should go and steal. Appellant replied that he did not
know how to do so but that he would agree to beat up people in a
bar. Deceased then suggested they break into a house and
Appellant told him he was talking shit. A quarrel developed and
Fitus walked away.
Later the three men joined up again and as they were walking
along the Deceased said to the Appellant "If I wasn't afraid of
you, I would beat you up". This was in relation to the
Appellant's refusal to steal. Fitus and the Deceased both
laughed at Appellant whereupon Appellant punched the Deceased.
2
Fitus held Appellant and was abused for his powers. Deceased had fallen to the ground and Appellant kicked him once with his heel.
Fitus and Appellant left Deceased on the ground.
Deceased was later taken to hospital. He was unconscious on admission and died on 26th May.
The post-mortem showed certain facial abrasions and a contusion of the scalp 13 cm x 7 cm over the left parietal temporal bones.
There was no fracture of the skull. There was acute diffused sub-dural haemorrhage over the left half of the brain. Both parietal
and temporal lobes were contused. Death was due to acute sub-dural haemorrhage with cerebral contusion.
The medical evidence was that a blunt instrument or even a fist could cause the head injury. What had happened was that, because
of a blow to the head, the brain had moved within the skull and the motion had caused a rupture. The doctor did not accept a suggestion
that a great amount of force was needed but stated that a fairly hard kick would suffice.
The learned trial Judge was satisfied that death was caused by the kick to the head. He then stated that the issues he had to decide
were:
(1)
The Appellant's intent;
(2)
Whether there was provocation and,
if so, the extent of the provocation.
In dealing with (1) he said that he was sure that Appellant did not intend to kill but that he intended to cause really serious bodily
harm to the Deceased.
The only basis for this finding seems to have been the
3
delivery of a fairly hard kick to the head following on the punching incident.
On the question of provocation he held that there had been provocation when the Appellant was called a fool and later when he was
again laughed at. He found that there had been a delay between the latest provocation and the assault. In this he was in error as
the assault had immediately followed the incident when Fitus and the Deceased had laughed at him.
The learned Judge found that the provocation did not bear a reasonable relationship to the nature of the attack.
He found that the Appellant was under the influence of drink but not so as not to be aware of the nature of his act.
He found the Appellant guilty of murder. Having considered the circumstances he found that there were extenuating circumstances and
sentenced Appellant to 5 years' imprisonment.
The learned Judge gave no real consideration t.o the medical evidence as to the nature of the kick. In my view while a fairly hard kick to the head is certainly designed to cause pain and possibly
some injury, it is not possible to deduce from such a kick even if it followed a punch that a person doing so must intend to do really
serious injury. A moderate blow can cause death. In most cases it does not. Fairly hard kicks are certainly intentionally inflicted
during for instances, a Rugby match and sometimes such kicks are to the head. If on such an occasion the person kicked died, no doubt
the aggressor might be guilty of some offence. I do not think
•
it possible that such a kick per se even if it followed a punch must found malice aforethought to sustain a charge of murder.
I consider that in this respect there was a misdirection. In the circumstances it is not necessary therefore to consider whether the
Judge's finding that Appellant intended to do "really serious injury" sufficiently fulfilled the terms of the definition
of "grievous harm" in Section 5 of the Penal Code or to consider any question relating to provocation.
I would allow the appeal and substitute a verdict of guilty
of manslaughter contrary to Section 205 of the Penal Code. The sentence is reduced to 3 years imprisonment.
I agree
B. A. DOYLE Judge of Appeal
A.N.E. AMISSAH Judge of Appeal
I agree
L. de VAN WINSEN Judge of Appeal
GIVEN at Lobatse this 3rd day of July 1987.
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