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Shimane v The State (Criminal Appeal No. 29 of 1989) [1990] BWCA 2; [1990] B.L.R. 256 (CA) (3 June 1990)
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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Criminal Appeal No. 29 of 1989
In the matter between:
MOMPATI SHIMANE
Appellant
vs.
THE STATE
J. R Malatsi for the Appellant N. Chadwick for the Respondent
Respondent
i
JUDGEMENT
Coram: A. N. E. Amissah, JP: T. A. Aguda, JA: C. E. Puckrin, JA:
PUCKRIN, JA:
At the previous session of this Court we postponed the Appeal to
allow for the hearing of further evidence from a Specialist
Psychiatrist, Dr. Subramanian, on the issue of the prognosis of the
Appellant's mental condition. Our reasons for doing so are contained
in our previous judgment and we do not repeat them herein.
Dr. Subramanian explained that she had previously been the Medical
Superintendant of the Mental Hospital situated at Lobatse. She had
examined the Appellant on a number of occasions, the last two of which
occurred on the 15th and 28th December 1989 respectively. On the 3rd
September 1985 she had compiled a written report, which report was
handed up to this Court as an exhibit. During her examination she
explained certain of the opinions expressed in her report. I point
out hereunder certain of the salient features of her report:
(i) The Appellant exhibits signs of having a psychopathic personality;
(ii) The aforegoing manifests itself in anti-social behaviour which results in impulsive and often criminal conduct on his part;
(iii) He has a history of criminal conduct, including two incidents of violence committed against policemen, one of which resulted in the death of a policeman;
(iv) One of the manifestations of a psychopathic personality is the telling of lies;
(v) The appellant is reported to have a history of epileptic seizures, although since his incarceration in 1985 no such seizure has manifested itself. This is not unusual;
(iv) The afore defined anti-social behaviour is always latent in a psychopathic personality and it is extremely difficult to cure such a condition;
(vii) At the examinations conducted during December 1989 no signs of psychiatric illness could be observed.
The witness was then questioned on the source of her evidence relating
to the appellant's history contained in her report. Of particular
importance is her evidence that the facts pertaining to the alleged
assaults on the two policemen were derived from the Appellant himself.
The record of the trial shows that no evidence of any such assaults
having taken place exists and that this incident must therefore have
been a fabrication on the part of the Appellant. When questioned on
this aspect Dr. Subramanian expressed the opinion that this bizarre
revelation on the part of the Appellant must have been due to a delusion
on his part. She stated further that this exacerbated the situation
because it was a further indication of the Appellant's mental
instability and that a real danger exists that he might try to enact
his delusions in the future.
Upon a series of questions by the Court the witness conceded that
the Appellant's psychopathic personality might be either the consequence
of epilepsy or might exist independently therefrom. In the event of
IS
the former the condition is controllable whilst in the latter it is not. Obviously it is essential to know which of the two prevails in order to assess whether or not the Appellant will forever constitute a danger to the public.
Dr. Subramanian indicated that sophisticated tests exist which would indicate whether a history of epilepsy is present, but facilities for these tests do not exist in Botswana. Alternatively, a controlled regimen of medication for a period of two years would allow
for a similar assessment.
In my view the aforegoing set of facts is exemplary of the circumstances which must be examined and which must be found to exist before
an indeterminate sentence is imposed. This appears to me to be consistent with the views expressed in the cases of Pither, Bogosi and Wilkinson referred to in our previous judgement.
Accordingly the Appeal against sentence is dismissed and the sentence imposed by the Court below is confirmed. For the assistance
of the officials who have to administer the functions set out in Section 82 of the Prisons Act (Cap 21:03) we recommend that the Appellant
should be placed on a regimen of medication comprising carvalazepine ("Degredon") (this being Dr. Subramanian's suggestion) or
other similar medication for a period of two years to assess whether his condition is curable or susceptible to palliative treatment. We further recommend that this assessment be used as a basis for any determination
which they may make. We order that this recommendation be brought to the notice of the responsible prison authorities.
GIVEN at Lobatse this ..3rd.... day of June, 1990
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C. E. PUCKRIN JUDGE OF APPEAL
A. N. E. AMISSAH
JUDGE PRESIDENT
T.A. AGUDA JUDGE OF APPEAL
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