You are here:
SAFLII >>
Databases >>
Botswana: Court of Appeal >>
1988 >>
[1988] BWCA 11
[Database Search]
[Name Search]
[Recent Decisions]
[Noteup]
[Help]
Hoseah v The State (Criminal Appeal No. 9 of 1988 ) [1988] BWCA 11 (4 July 1988)
.PDF of original document
.RTF of original document
IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 9 of 1988 High Court CTF No. 14 of 1987
In the matter of:
TJIVATU HOSEAH
TIMOTHY LEEPILE MORAPEDI
Appellants
GAEKGAKALA NDIANE
ANDREW SEBOPENG LESETEDI
vs
THE STATE
Respondent
Mr. P. Phumaphi for the Appellants Mrs. L.I. Dambe for the State
JUDGMENT
Coram: L. de V. Van Winsen, JA. B.A. Doyle, JA. G. Bizos, JA.
L. DE V. VAN WINSEN JA.
All four accused, prison warders employed at the Maun State Prison, were on 16th March, 1988 found guilty of contravening section 202 of the Penal Code. Accused numbers 1 and 4 were each sentenced
to 3 years' imprisonment and accused numbers 2 and 3 were each sentenced to 18 months' imprisonment. They all appeal against their convictions and sentences.
One Mongedi Ndala had the misfortune to be arrested on 24th December, 1986 on suspicion of having stolen stock and he was detained in the Maun State prison. On the afternoon of the same day he escaped from the prison but was later on that day re-arrested by two teams of warders from the Maun prison amongst whom were numbered the accused.
2
After his re-arrest he was savagely assaulted by some members of the prison staff, sustained grevious injuries as a result of the assault and died on the 26th of December, 1986.
Evidence resulting from a post-mortem examination conducted on the body of the deceased disclosed that he had died as a result of generalised peritonitis due to intestinal perforation. The State's case is that the deceased received injuries during an extensive assault on him by, amongst others, the four accused. The
issue before this Court is whether the State has succeeded in establishing beyond reasonable doubt that the deceased was in fact assaulted by the four accused. As pointed out by the trial judge, the real issue between the State and the defence was how the deceased came to sustain his injuries. That he was assaulted is not in dispute.
One version as to how the deceased sustained his injuries is that in endeavouring to escape from his captors the deceased came into violent collision with a standpipe which stood embeded in a concrete block which in turn was itself surrounded by a low concrete wall. It was as a result of this that the deceased was supposed to have sustained the injuries found on his body by the doctor conducting the post-mortem examination.
This suggestion as to what happened to the deceased before he was taken to the prison requires closer examination since it has a direct bearing on the credibility of a number of the witnesses. The possibility that the deceased might have sustained his injuries in the manner aforesaid was first raised in cross-examination of Dr. Kruizinga. He was asked if the
3
deceased might have received his injuries while "running at high speed and perhaps tripping and falling on a hard object.
The doctor said he would in such event have expected internal injuries caused by the deceased's collision with the standpipe to have been visible. He testified that the several bruises found on the body were not consistent with this hypothesis.
Each of the accused numbers 1, 2 and 4 in the course of their evidence stated that the deceased in the course of running away from his captors had collided with the standpipe and had fallen next to it, after which he was arrested and taken to the prison.
Accused number 3 said that he heard a banging noise and that when he arrived at the scene he found that the deceased had been arrested next to the standpipe.
The evidence given of such a collision appears to have originated in a conspiracy amongst the accused and certain of the State witnesses to mislead the police as to how the deceased came by his injuries. The state witness Nnosang testified that he originally took part in the conspiracy to tell the police that the deceased had collided with the standpipe. He had qualms of conscience about his evidence and he subsequently retracted his statement to the police. In fact there is ample evidence that the deceased suffered no damage to his person when being conducted from where he was arrested to the prison. This is testified to by Bufelo Bolotsang, Minors Magwegwe, Ansley Gaetshetse and Thamatsi Modise.
Apart however from this evidence and that relating to the
4
abortive attempt to mislead the police as to the cause of the deceased's injuries, it seems clear that the probabilities of the deceased's
injuries having been incurred in the manner testified to by the accused is remote. The standpipe and the concrete structure associated
with it would have been obvious to anyone even if he was in the act of fleeing. It must also be remembered that the structure stood
on the deceased's home ground. The fact that the accused chose to advance this concocted story raises serious doubts as to the credibility of their evidence generally.
I turn now to a consideration of the events that took place after the deceased had been taken by his captors to the storeroom in the prison. It is not in dispute that he was there assaulted
by a number of persons. The question is whether it has been proved that the accused were among those who took part in assaulting
the deceased. There is ample evidence that each of the accused took part in the assault on the deceased.
The witness Bolotsang includes accused number 1 (Hoseah), number 2 (Morapedi), and number 3 (Ndiane). The witness Obenne Nnosang includes among those participating (No 4) Lesetedi, (No 2) Morapiedi, (No 3) Ndiane, (No 1) Hosea.
One or more of the accused are identified by the witnesses Magwegwe, Gaetshetse, Thamatsi Modise, Rantebe, Diletsang and others as joining in some way in the assault on the deceased.
The reliability of this evidence implicating the four accused was however called into question by counsel for the accused. He pointed to certain discrepancies disclosed in the
5
evidence of the witnesses Nnosang, Bolotsang, Magwegwe Gaetshetse and Modise which in his submission would render it unsafe for a court to rely on their evidence. He pointed, for instance, to discrepancies in the evidence regarding the question of the sobriety of the deceased at the time of his arrest and when
he left the storeroom after the assault upon him; and regarding the nature of the assault on him by each of the accused.
There are undoubtedly numerous inconsistencies in the details of the evidence of the various State witnesses as to what each of the
accused had done to the deceased. It can be accepted that the trial judge was well aware of these inconsistencies and would obviously not have overlooked them in his careful weighing of the various factors relevant to a decision as to the proof or otherwise of the guilt of the accused. Regard being had to the fact that the events in the storeroom lasted for some 15 to 20 minutes and during that time the room was occupied
by the deceased, the four accused and some eleven
warders, "milling around" (to use the phraseology of the trial
of judge) in the course/the execution of a savage assault on the
the deceased, it is little wonder that considerable confusion
would exist, making it difficult even for the keenest of
observers to see and recall all that was happening. It would
indeed be a cause for suspicion if under such circumstances
there was a consistency disclosed between the various versions
of the events.
Some suggestion eminated from the defence to the effect that
the police played an active part in the course of the investigation and applied pressure to the accused in connection with the evidence that they should give. This matter was considered by the trial judge and he said that the police impressed him favourably
and displayed no excess of zeal in their handling of the investigation.
I have scruitinised the trial judge's reasoning in arriving at his conclusion and can find no evidence of any misdirection on his part which would justify an interfereence by this Court in his
conclusion that the State has proved its case against each of the accused.
As to the sentence I am unable to find that the factors mentioned in defence Counsel's heads of argument were not adverted to by the trial court. The offence was a particularly repulsive one, grevious hurt was inflicted upon a person not able to defend himself against the combined efforts of the four accused and it constituted a breach of accuseds' duty to guard and protect a citizen entrusted to their custody.
Appeal is accordingly dismissed.
L. DE V. VAN WINSEN Judge of Appeal
'VY
^y^
I agree B.A. DOYLE
Judge of Appeal
I agree G. BIZOS
Judge of Appeal
GIVEN at Lobatse this 4th day of July, 1988.
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1988/11.html
