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Motalaote v The State (Criminal Appeal No. 1 of 1991 ) [1991] BWCA 7; [1991] B.L.R. 275 (CA) (2 July 1991)

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IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 1 of 1991 High Court Crim. Trial No. 33 of 1990
In the matter of:
BADIRI MOTALAOTE         Appellant
vs      
THE STATE        Respondent
Miss P. Chibanda for the Appellant Mr. S. A. Afful for the State
JUDGMENT
Coram: A.N.E. AMISSAH, J.P.: G. BIZOS, J.A.: W.H.R. SCHREINER, J.A.:
BIZOS, J.A.:
The Court summarily dismissed the appeal on sentence at the end of the hearing and indicated that reasons would be given later. These are the reasons. I find it necessary to deal with the matter more fully than I would have done if the appellant himself had not taken the unusual step of coming before us the following day to complain that pro deo Counsel who argued his case had not done it to his satisfaction.
The appellant was charged before Gyeke-Dako, J. with the murder of Johannes Mopale. A plea of guilty to manslaughter was accepted by the State and confirmed as a proper plea in the circumstances of the case by the learned Judge a quo. He was found guilty and sentenced him to five years' imprisonment, 2 years of which was suspended for 3 years on condition th'at during the period of suspension, the accused is not convicted of the offence of manslaughter

m
or any offence involving violence to the person of another.
The appellant had been referred to the Lobatse Mental Hospital where a specialist psychiatrist had examined him in terms of Section 161 of the Criminal Procedure Act. His report was handed into Court by agreement between Counsel representing the appellant and the State. It contains the personal circumstances of the appellant and refers to the quarrel between the appellant and the deceased. The deceased threatened the appellant and one of his friends. He also threw them out of the yard where they were drinking. In the appellant's version to the psychiatrist he continues:
"By now the accused was annoyed and according to him, 'I decided to immobilise Johannes'. He then picked a metal pipe from nearby in the yard and approached the deceased from behind while the deceased was still arguing with Gasegaope. The accused hit the deceased on the head with the pipe and the deceased fell down between a bench and the wall of the house. As the deceased tried to stand using the bench, the accused hit him again on the left elbow with the same mental pipe. The deceased went down again. The deceased struggled to stand using both hands but the accused hit him on the left hip, and he went down again. As the deceased tried to move his legs, the accused hit him on the left knee, and by now - "he was completely immobilised", the accused says.
Seeing the deceased in that condition, the accused went to a nearby yard belonging to RABASHI and asked for a vehicle. He drove to Broadhurst Police and informed them about the incident. He says he could not drive the deceased to hospital alone as at the hostpital they would need the Police statement. He says he drove back to the scene of the assault with the Police following behind. When they arrived at the yard they found the deceased still alive but bandaged up in torn T-shirts. The deceased was then rushed to hospital and arrived at Princess Marina Hospital still alive. He died in Hospital 10 days later.
The accused had known the deceased for 4 months.

They came from the same home area and the deceased shared same accommodation with the accused's cousin. The accused says he was in good terms with the deceased and that the deceased had turned up at Gasegaope's yard by mere coincidence. The accused describes the deceased as a huge imposing man who was always looking for trouble. The deceased had earlier been hit on the head with a car jack by someone and he (deceased) had a case pending with the Police.
On Psychiatric examination, the accused was calm and composed. He gave a clear account of events surrounding the alleged offence. He says he feels very sad about the way things ended but he maintains that he was provoked. Detailed mental state examination revealed no Psychopathology. Physical examination was also normal."
The learned Judge a quo says that he received the facts and
satisfied himself that the accused plea of guilty to a lesser offence
was not an attempt to circumvent a proper punishment which the original
charge would attract, but also that the facts as narrated by the
prosecution and agreed upon by the accused support a charge of
manslaughter. The reasons for the sentence in the Judgment are:
"On the issue of sentence, the accused has four previous convictions of which only one of an assault committed in 1977 was of some moment. After allocutus has been received, the Court in its endeavour to impose an appropriate sentence on the accused, gave deep and anxious consideration to the matters of mitigation of sentence advanced by Mr. Sebotho, learned Counsel for the accused, especially the accused's age, his personal circumstances, the circumstances surrounding the commission of the offence, the previous friendly relationship which existed between the deceased and the accused and the remorse shown by the accused."
The appeal on sentence was noted by the appellant himself and not
by pro-deo counsel who represented him in the court below. The
appellant filed no less than 5 pages of single spaced typing setting
out various reasons why his sentence of 3 years imprisonment was

too severe.
Pro-deo counsel was appointed to represent him in his appeal before us. Miss P. S. Chibanda filed heads of argument. She submitted that we should interfere with the sentence imposed on the grounds that:
1.       No account was taken of the manner in which the appellant was provoked;
2.       The full facts relating to his degree of intoxication were not taken into account; and
3.       The appellant's personal circumstances and aspirations for the future were not considered or at least they were not given proper weight.
The grounds were fully argued by her in the presence of the appellant. He raised no objection or disatisfaction of his counsel' handling of his case on appeal.
Miss Chibanda said everything that could be said on behalf of the appellant with confidence and presented the appellant's case as well as any more senior or experienced member of the Bar may have been able to do.
Counsel could not, however, overcome the inevitable conclusion that there were no grounds upon which the Court of appeal could interfere with the sentence passed by the Court a quo.
The provocation was obviously taken into account both by confirming the acceptance of the plea of guilty to a lesser offence and on sentence. The full circumstances appeared in the psychiatric report which was based on the appellant's version.
The degree of intoxication was similarly considered. In my view if the learned Judge a quo erred at all in this respect it was to the benefit of the appellant. He drove a vehicle in the

         j

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presence of the police without interference. He could not have ! been as drunk as he contended.
His personal circumstances were considered. They were fresh in the mind of the Court a quo when passing sentence.
The instrument, a thick and heavy pipe of approximately lm length that was used to kill the deceased exhibited before the learned j Judge a quo and us was indeed an appropriate instrument which would "immobilise Johannes" in the words of the appellant.
As there was no misdirection nor any other principle upon which i this Court could interfere the sentence was confirmed by us.
The appellant wrote a letter to the Registrar which was brought to our attention the day after his appeal was dismissed. He complained; that there was no consultation between him and counsel that argued i his appeal and expressed a belief that he would have done better if he had argued it himself. He insisted that he should again appear
before us.
I
Although a party is not generally entitled to re-argue a case '
once an order has been given, we decided to let the appellant have
i
his say. He repeated what he had written in the five pages referred i
i i
to above.        i
i The President of the Court advised the appellant that the Court's !
Order made on the previous day dismissing his appeal stood.      <
The appellant was heard in the absence of counsel. When Miss
Chibanda appeared before us in another matter the following day
we asked her if the appellant's letter to us had come to her notice
and if so what comment she had to make. She informed us that she j
had indeed not consulted with the appellant but that she prepared ;

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the argument on the basis of the record including the lengthy letters written by the appellant.
The appellant in his letter to the Registrar says that lack of consultation between pro deo counsel and clients is a general practice and refers to a number of cases. We do not know if what he says is correct or not. We hope that it is not correct.
Strictly speaking a consultation is not necessary for the preparation of the argument to be presented to a Court of appeal which generally is bound by the record of the proceedings in the Court below. But as the appellant's presence is required when the appeal is argued and would in any event be in the vicinity of the Court before it is called the opportunity to consult ought not to be missed.
Legal practitioners whether acting lucri causa or pro deo at the request of the Court should always bear in mind that proper communication between them and their clients creates greater confidence between them. Experience has also taught us that at times even persons without formal education may have helpful suggestions to make relating to the litigation which may vitally affect their lives. Consulting with them, explaining the issues and advising them of the probable outcome can only enhance the reputation of the profession and assist in the administration of justice.
G. BIZOS
Judge of Appeal

. v.

I agree
A.N.E. AMISSAH Judge President


I agree
W.H.R. SCHREINER Judge of Appeal

GIVEN AT LOBATSE this 2nd day of July, 1991
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