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Peloyang v The State (Criminal Appeal No. 15/88 ) [1988] BWCA 2 (1 January 1988)
.PDF of original document
.RTF of original document
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 15/88 In the matter between:
BOTLHALE PELOYANG
- APPELLANT
vs.
THE STATE
- RESPONDENT
JUDGMENT
CORAM: A.N.E. AMISSAH, J.P.
T.A. AGUDA, J.A.
B.A. DOYLE, J.A. DOYLE J.A.:
The Appellant was convicted of murder with extenuating circumstances. The Appellant appealed against his sentence. At the hearing
before this Court Appellant was given leave also to appeal out of time against his conviction.
It was common cause that the Appellant had struck the deceased on the head with a piece of wood which he had plucked from the fire
which was subsequently thrown back on the fire and burnt. The Appellant claimed that he had used a stick two or three inches thick,
had not intended to kill him but merely to teach him a lesson to keep away from Appellant's house and wife.
The medical evidence was that death was caused by an EXTRA-DURAL HAEMOTOMA with cerebral contusion. A blunt instrument such as a
piece of wood used with moderate force could have caused the injuries.
2
In dealing with the question of intent the judge had this to say -
"So, I am satisfied beyond reasonable doubt that the said blow was intentionally struck. However, I do not consider that the
Accused intended to kill the deceased but I am satisfied that he intended to cause really serious bodily harm, so that the deceased
would be taught a lesson and keep away from the Accused's yard and his wife. In my judgment, anyone who strikes anyone on the back
of his head with a stick, albeit not a large stick, with moderate force must intend to cause really serious bodily harm and I so
find in this case."
The criteria laid down by the learned judge in this last sentence was in my opinion incorrect. The intention of a person must be
judged from all the varying circumstances of each individual case.
It cannot be inferred that a person who strikes anyone on the back of the head with a not large stick with moderate force must necessarily
have the intention to cause really serious bodily harm. The correct expression for the purpose of malice aforethought is of course
"grievous harm" see Section 209 of the Penal Code. The latter expression is defined in Section 5 of the Penal Code as follows
-
"grievous harm means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which
is likely to injure health, or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, membrane or sense."
Had the learned Judge approached the matter correctly he might well have found the Appellant guilty of manslaughter.
The appeal is allowed by the substitution of a conviction of manslaughter contrary to Section 205 of the Penal Code. A sentence of
three years imprisonment is substituted for the sentence of five years imposed.
B. A. DOYLE JUDGE OF APPEAL
I AGREE
A.N.E. AMISSAH JUDGE PRESIDENT
I AGREE
T. A. AGUDA
JUDGE OF APPEAL
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