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Scotch v The State (Criminal Appeal No. 3 of 1991) [1991] BWCA 5 (1 July 1991)
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IN THE COURT OF APPEA1 OF BOTSWANA
HEID AT LOBATSE
Criminal Appeal No. 3 of 1991
In the matter between:
KEBONYENG SCOTCH
VS
THE STATE
Mr. M. letsididi for the Appellant Mr. S. Afful for the State
JUDGMENT
Coram: A. N. E. AMISSAH, JP T. A. AGUDA, JA B. DOYLE, JA
DOYLE, JA.
The Appellant was convicted of the offence of manslaughter contrary to section 200(1) of the Penal Code and was sentenced to three
years imprisonment of which two years was suspended. He appeals against conviction and sentence.
The Appellant is a priest who is accustomed to healing persons who come to him for healing. His treatment is to ask the patient to open a bible at random; the Appellant reads from the bible from where it has been opened and prays. This enables him to diagnose the illness.
In June 1986 the deceased became ill and his grandmother
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brought him to the Appellant. The latter went through his usual ritual. There is some dispute as to what was his diagnosis. According to a State witness it was bleeding from the head into the kidneys. According to the Appellant it was a venereal transmitted disease which was confirmed by the deceased as being long term.
In any event the deceased was told to come back next day which he did. He was given a bath with some concoction in it and told to come back again next day.
When the deceased returned about 6 a.m. next day there were two other patients. All three were given enemas from an apparatus, Ex. C, constructed by the Appellant. This apparatus consisted of a metal case to which was attached a piece of a hose. At the other end of the hose was attached the empty body of a ball point pen. The mode of operation was the insertion of the ball point pen into the anus of the deceased and
the enema given from the metal case by force of gravity. After the enema has been given the deceased went to the toilet and then left on his bicycle.
At about 11.30 a.m. the Appellant was informed by a girl that the deceased had collapsed on his way home. Appellant went to look for deceased and found him about 400 metres away. He told Appellant that he was feeling dizzy. The Appellant accompanied
him back to his house. According to the grandmother Appellant told her he had given an enema to the deceased and did not know what was happening to him. Sometime in the night the deceased died.
3
Dr. Maramreddy performed a post-mortem examination.
1/ He found that there was a perforation 2 centimetre in length
in the rectum. The peretonium (abdomen) was inflamed and
there was prudulent fluid in the peritoneal cavity. The
intestines and mesentary were also inflamed.
Death was due to peritonitis caused by bacteria from the rectum and fluid (possibly water) used in the enema which had entered the
abdominal cavity through the hole in the rectum. In his opinion the perforation could have been caused by the empty body of the ball
point pen in the apparatus Rxhibt C. which was used.
In his opinion the use of the apparatus was dangerous because the empty body of the ball point pen could easily perforate the intestine.
In cross-examination he said that if there were no perforation of the rectum the deceased would not have died. If the ball point pen
was well lubricated it could easily enter the rectum. But as the empty body was not flexible if it got caught in between the mucosal
and the fold and if force was used to push it, it would perforate the rectum.
If the apparatus Exhibit C were properly lubricated it
would reduce the danger but would not completely eliminate
it.
The Appellant gave evidence. Generally he confirmed
the facts led by the State. However in relation to the
administration of the enema he said -
"The deceased met me with two other patients I then administered the enema to the deceased and the two patients.
4
I put some water in a container I then ordered each of them to lie down and administer the enema himself by use of exhibit C. After I had administered the concoction to a patient I made sure that the enema was clean before administration to the next patient. The deceased and one of the patient left on their bicycles. I now say that the
deceased himself inserted the edge of the enema set i.e. the biro pen into his anus".
In cross-examination he said he had been a priest for the past 8 years and for the past seven years had been giving enema treatment with Exhibit C. He did not take the instrument to be dangerous for administering the enema to patients.
Appellant was not cross-examined on his statement that he had been giving the enema treatment with Exhibit C for seven years.
On the question as to whose hand had actually inserted the instrument Exhibit C into deceased's anus, the learned judge found that
it was the Appellant not the deceased who had done so. This in fact was a finding in favour of the Appellant. Whatever was the degree of negligence in the use of Exhibit C,the substitution at the instigation of Appellant of an unskilled hand for his skilled or semi-skilled hand would be a further degree of negligence.
The learned judge in a careful judgment considered a
number of authorities on the nature of gross negligence.
Clearly he had the right test in mind. The question was
determined by him in the following passage -
"In my view, by inserting the highly dangerous instrument with a sharp pointed edge as the hard and inflexible ball-pen into the anus of the deceased, and thereby perforating the rectum resulting in peritonitis from which the deceased died, the accused committed an unlawful omission
5
amounting to culpable negligence to discharge a duty tending to the preservation of life or health of the deceased, and it is immaterial
whether such omission is or is not accompanied by an intention to cause death or bodily harm to the deceased".
Clearly he was relying solely on the doctor's
evidence. I here repeat that evidence on the relevant point
verbatim.
"It is dangerous to use Id I (Exhibit C) on any person because the ball pen (Id I) can easily perforate
the intestines
If Id 1 is lubricated
well the tip made of biro pen could easily penetrate. But since biro pen is not flexible, if it is caught between the mucosal and the fold and if force is used to push it, it will perforate the
rectum
Yes I agree that Id I if properly
lubricated would reduce the danger. But the danger would not be completely eluminated".
The doctor was not asked any question relating to what
were the chances of the pen being caught between the mucosal
and the fold or, if such event occurred, what degree of force
would necessarily be used to perforate the rectum.
The doctor did not in terms describe the use of exhibit C as highly dangerous. Nor was he asked what his view would be if he had known that the instrument had been used on numerous occasions over a period of seven years without adverse effect. The omission to obtain this opinion is explainable by the fact that,
it was only in the Appellant's evidence that this widespread use became known.
However the fact remains that medical evidence on this aspect was not obtained.
The learned judge in my opinion erred
(a) in evaluating the danger of the mere use of
Exhibit C at a higher degree than was warranted by the doctor's evidence.
6
(b) in giving no consideration to the evidence given by the Appellant that he had been using Exhibit C on numerous occasions over
a period of seven years without adverse effect and that therefore Appellant did not take the instrument to be dangerous.
If the learned judge had not erred in these respects,
he might not have come to the conclusion that Appellant had
been guilty of gross negligence.
I consider that the appeal should be allowed and the
conviction and sentence should be quashed.
DELIVERED IN OPEN COURT IN 10RATSE ON THE
DAY OF JUIY,
1991
B. A. DOYLE JUDGE OF APPEAL.
I agree:
AMISS^FT
JUDGE OF APPEAL _
I agree:
T.A. AGUDA
JUDGE OF APPEAL
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