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King v The State (Criminal Appeal No. 5 of 1993 ) [1993] BWCA 4; [1993] B.L.R. 274 (CA) (14 July 1993)
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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 5 OF 1993 (HIGH COURT CRIMINAL TRIAL NO. F38 OF 1991)
In the matter between:-
SISCO KEDIRENG KING
Appellant
and
THE STATE
Respondent
Mr. E.W. Fashole-Luke II for the Appellant Mr. K. Kapinga for the Respondednt
JUDGMENT
CORAM:- A.N.E. Amissah, JP. T.A. Aguda, JA. G. Bizos, JA.
BIZOS JA:-
The appellant a 26 year old male and a trainee teacher was convicted of murder and sentenced to death by Aboagye J sitting in Francistown. The deceased was the appellant's lover who died of
asphyxia as a result of suffocation.
The only evidence of the circumstances in which she died is
contained in what is described as a "Confession" which was admitted in
evidence without objection at the trial. It was signed in Setswana and
translated into English by the Magistrate who took it Mrs. Ewetse
Malakaila. In view of its importance I set it out in full:-
"On the evening of the 13th May 1991, I left for Nswazwi from Matobo, on foot.
I arrived in Nswazwi at a time past eight. I knocked at the house of my girlfriend Margaret Moyo. She opened and I went inside. We exchanged greetings and slept.
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Whilst we were (sleeping) in bed she told me that during the Easter Holidays she had gone to visit her sister in Gaborone.
After a while I realised that I had throttled (strangled) her. Even I don't know why I did so. She had not said or done anything to annoy me.
When she was silent I went out of the house leaving my jacket in her room. I left the bag outside.
When I left the place it was after 12 midnight and I hung around the village.
On the 14th I spent time in the bush in Nswazwi and slept there. On the morning of the 15th I left for Matobo.
I arrived in the afternoon and did not go home. In the evening I went to my aunt's. I did not tell her anything. She however, told me that the word was out that the police should be informed should I be sighted.
My aunt left me in her home and went to summon a certain man an SSG officer. This man came and took me to the Tutume police. I was detained where I was informed that Margaret had died."
The appellant gave evidence in his defence. He said that he
left his village Matobo to the deceased's village Nswazwi on a bicycle
to visit the deceased whom he variously described as a lover and a
friend after an arrangement had been made. There was no quarrel nor
even any misunderstanding between them. The day after his arrival and
at about 9 o'clock in the evening they went to bed and had sexual
intercourse. He was asked by his counsel how they went about having
sexual intercourse. He replied that "the deceased was under and I was
on top." When asked whether or not it was "fast and furious" he said
it was fast. When they were finished he turned over and slept. In the
middle of the night he woke up when he felt the deceased. She was cold
and stiff. He tried to wake her up without success. He did not know
why she failed to respond. He was confused, he panicked and he ran away
as he had not seen a dead person before. He went into hiding in the
H
bush and then to his village where he was apprehended by the police
before he could go to them with his parents.
j
!
When he was asked to explain the death of the deceased as the j
indications were that it occurred whilst he was with her his answer was j
i
that he did not know what might have caused the death of the deceased.
i
asked by the learned judge a quo whether he did not press his hand over j
the deceased's nostrils or mouth he replied that he could not say
"because when you are having sexual intercourse you cannot notice many
things that are taking place."
Dr. Tiukov Anatoli the pathologist who performed the post
mortem described his findings in his report:-
"The body of female, African, adult. The height is about
170 cm. The constitution is normosthenic, the body build
is regular, the degree of nourishment is moderate, the
skin integument is normal, the external apertures are
clean. There is no any external damage or injury.
Public hair is shaved. The mouth (the lips) is closed.
The tip of the tongue is squeezed between teeth and
bitten up to 0.5 cm. long with haemorrhage in the
muscle. On the mucous membrane of the inner surface
of the upper lip there are multiple petechial haemorrhages.
On the mucous membrane of the inner surface of the lower
lip there are multiple petechial and small spotted
haemorrhages, on the right half of the mucous membrane
of the inner surface of the lower lip there is
abrasion with haemorrhages 1,5 x 1,0 cm. On the
mucous membrane of both eyelids of both eyes (inner
surface of the eyelids conjunctive) there are
multiple widespread asphyxial petechial and mottled
j
spotted haemorrhages. The mucous membranes of larynx,
:
trachea aand large bronchi are congested. Inside
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trachea and large bronchi there is abundant fine froth.
i
Under lung pleura there are multiple widespread
petechial and haemorrhagic spots ("Tardiv spots").
i
There is marked degree of the congestion and cyanosis
i
of the inner organs and liquid condition of the blood.
CONCLUSION
I
The main reason of death is asphyxia as a result of
j
suffocation by closure of the nostrils and mouth by hand I
or some soft object."
I
!
I
IT]
It is abundantly clear that there was no injury to the deceased's throat nor indeed any other external injury that would tend to show
that the statement of the appellant to the effect that "after a while I realised that I had throttled (strangled) her" was correct. According to the Oxford Dictionary to "throttle" means "to stop the breath of (a person) by compressing the throat, to strangle, to kill in this way." Clearly therefore on the medical evidence the appellant on the face of the statement made an admission against himself which was factually incorrect. The cause of death was suffocation and
not throttling. The Setswana word used by the appellant in his statement was "kgamile". There was consensus amongst a number
of Setswana speaking counsel at the bar whilst the matter was being argued that the word may mean throttle, strangle or suffocate depending on the context in which the word is used. This may explain how the unfortunate
error crept into the proceedings in the court a quo which led to the appellant's conviction of murder.
The cross-examination by counsel for the state and the questioning of the appellant by the learned judge a quo proceeded on the basis that there was an admission by him that he had throttled or strangled the deceased. His explanation that he was told by the police
that he had done so before he made his statement led to his giving evasive and otherwise unsatisfactory answers.
The learned judge a quo clearly misdirected himself in
holding:
"By the accused's person's confession statement and the evidence of Dr. Anatoli as to how the deceased could have been suffocated
the prosecution established a prima facie case that the accused had strangled (sic) the deceased to death."
Throughout the judgment there are references to the accused
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having admitted that he had throttled the deceased.
The evidence of Dr. Anatoli in chief and in answer to the
court was:-
State:
Ai Court:
What could have brought such suffocation, in your own opinion?
Suffocation in my opinion I write in my conclusion as a result of suffocation by closure of the nose or mouth because I found some injuries.
You say in your opinion the suffocation by what?
By closure of the nostrils and mouth by hand or some soft object like a pillow or bed linen or bedding; something like that.
Where the mouth and nose are blocked during a rather vigorous act of sexual intercourse death will occur within seconds. Yes if mouth and nostrils are blocked."
The manner in which the evidence in this case ought to be approached is to be found in the cases of The Queen v. Sharmpal Singh 1962 AC 188 at 197 et seq and Mancini v. The Directorate of Public Prosecutions 1942 ACI, and R v. Wallett 1962 All ER 296 which were brought to our attention by Counsel for the appellant but not to the court a quo..
In Singh's case the accused wife died due to asphyxia caused
by pressure on the chest neck and throat during sexual intercourse.
At page 197 - 8 Lord Devlin says:-
"Their Lordships have therefore to ask themselves whether they are satisfied that the degree of force used was so extreme as to be consistent only with an intent to do serious harm. They are
not so satisfied. Mr. Brabin rightly submits that the Crown is not obliged to prove a motive; but just as the presence of motive
can greatly strengthen the case for the prosecution, so its absence can weaken it. There is here a complete absence of motive. The
marriage was a new and happy one. Only an abnormal man could intend to strangle his wife while making love to her, and there is no
suggestion of known abnormality. The medical witness
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accepted that an inexpert stranger generally uses much more violence than is necessary to cause death; and the fact that there were no external signs of violence or of any struggle create, like the absence of motive, a weakness in the prosecution's case. These considerations are of themselves enough to induce in their Lordships' minds, as they did in the minds of the judges in the Court of Appeal, a real doubt about the accused's guilt of murder.
Their Lordships have next to ask themselves whether they are satisfied that the degree of force used was unlawful. The question is whether what was done was within the limits permitted by the wife's submission to intercourse and its normal accompaniments or whether it went beyond those limits so as to constitute
an assault upon her amounting at least to a matrimonial offence. Mr. Dean has argued that a verdict of manslaughter should not be
returned unless it is proved that the accused knowingly acted with reckless disregard for his wife's safety. That may be the proper
test under the Code when the accused is guilty of omission or where the unlawful act is not aimed at the victim, as in the case of careless driving; see per Viscount Kilmuir L.C. in Smith's case. But where there is an act done by the accused, such as the squeezing of the neck, the
only question under the Code is whether that act is unlawful.
If death had been caused solely by the pressure on the chest, it would have been quite consistent with accident and the contact would
obviously have been within the permitted limits. The difficulty in the way of the defence is to find a plausible explanation for
the handling of the neck; the internal injuries suggest at least extensive pressure. Since an expert can cause death with very little
force, it is conceivable that a husband might accidentally hit upon the same means. But death caused accidentally in sexual intercourse when the wife has ordinary health must be very rare indeed. The natural inference from the medical evidence is that the accused pressed much too hard. It is possible that, as the Court of Appeal thought, the accused was "applying pressure "in an excess of sadism to frighten or torment her, or to over come resistance." But it is unnecessary to say more than proved that the accused had gone well beyond the limits.
This is the sort of case in which a not incredible explanation given by the accused in the witness box might have created a reasonable
doubt. But there is no explanation; and the prisoner's silence is emphasised by his consequent conduct. How did he come to squeeze his wife's throat? When the prisoner, who is given the right to answer this question, chooses not to do so, the court must not be deterred by the incompleteness of
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the tale from drawing the inferences that properly flow from the evidence it has got nor dissuaded from reaching a firm conclusion by speculation upon what the accused might have said if he had testified. On the evidence they have their Lordships
are left with no reasonable doubt that this was a case of manslaughter."
In fairness to the learned Judge a quo in an earlier passage
the learned Law Lord said at page 195:-
"Their Lordships agree with the Court of Appeal that the trial judge fell into error (a very natural one considering the nature
of the defence that was pressed upon him) in that he overlooked that the Crown not only had to dispose of the defence set up but
had also to prove that the evidence adduced by the prosecution was consistent only with murder. In their Lordships' opinion the inability
of the medical evidence to speak with precision about the degree of force used, together with other circumstances in the case to which they will later refer, opened up both manslaughter and accident as alternative possibilities requiring consideration. It is now well established by a series
of authorities, in which Mancini ; v. Director of Public Prosecutions is the first and still the best known, that it is the duty of the judge to deal with such alternatives if they emerge from the evidence
as fit for consideration, notwithstanding that they are ' not put forward by the defence. This may impose a heavy j burden on the judge when, as in the present case, attention is concentrated by the defence on quite different issues. The use of the word "strangle" in the passage with their Lordships have quoted is criticised by Mr. Dean, and it does seem to suggest that the judge was taking it : as proved that the accused's object, once the act was admitted, was to cause death."
The appellant throughout his evidence denied that he throttled
i strangled or suffocated the deceased. He was convicted by the court ;
a quo mainly because of what was thought to be an admission and the fact
that he had run away and abandoned the deceased when he saw that the
deceased had died. The learned judge a quo ignored the fact that he ;
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left his jacket and bag behind which would have identified him as having \
been present and which he would have taken with him if he thought he |
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would be blamed for her death.
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The submission made by appellant's counsel that the death i
may reasonably have been accidental was rejected. The learned judge was
inclined to the view that the appellant must have pressed his hand on
the mouth and nose of the deceased. There was no evidence to this
effect. This does not, however, mean that the death of the deceased
came about by an accident within the meaning of the word in section
8(1) of the Penal Code which provides:-
"Subject to the express provisions of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the excercise of his will, or for an event which occurs by accident."
The question still remains as to whether or not the appellant is guilty of any unlawful act or omission which caused the death of the deceased which would make him guilty of mansualghter as envisaged
in section 200 of the Penal Code.
Having found that it was not murder does not conclude the matter. Appellant's counsel submitted that it was an accident and not manslaughter.
He submitted that death may have come about by the upper part of an admittedly big man covering the deceased's mouth and nostrils during sexual intercourse, that he may have covered her nose and mouth with his hand, or a bed cover or by pillow or the bed linen
especially if she was facing down. As the appellant was unable or possibly unwilling to say how it happened the matter must be left to either an inference to be drawn on insufficient facts or speculation. However
none of these hypotheses can be elevated to a proved fact.
The one inference which on the evidence as a whole is inescapable is that it was pressure imposed by the appellant on her nose and mouth which caused her death.
The next question is whether the pressure was such as his
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sexual partner expressly or impliedly agreed to undergo or did it exceed the bounds of generally accepted human behaviour.
The nature of the injuries to the tongue and particularly inner surface of the lips and mouth are consistant only with excessive pressure being applied. The deceased must of necessity have moved, twisted and struggled to free herself from this unusual and dangerous pressure. She probably made death like noises when there must have been momentary slight withdrawals or decrease of the pressure.
The appellant must have become aware of the dangers inherent in putting such great pressure on the life giving parts of her body that enabled her to breath. It was contended that if there were such agonising movements or sounds the appellant in his moment of gratification
may have mistaken them as the natural behaviour during sexual activity. He described the deceased as his lover. The evidence indicates that they had been lovers for some time. He did or at the very least should have recognised the difference from prior occassions.
I have come to the conclusion that the death was not accidental. The appellant's act, however it may have been committed was grossly
negligent and therefore culpable. I would find him guilty of manslaughter.
The state during the course of argument conceded that even if the appellant had been correctly convicted of murder the death sentence
ought not to have been imposed. Before the Court adjourned the Judge President for humanitarian reasons informed the appellant that whatever the outcome of this appeal might be the death sentence would not be imposed. He had been in the shadow of the gallows since the 14th
October 1992, for almost 9 months. He has been in custody since the 13th May 1991 that is for two years and almost two months.
Although manslaughter is a serious offence and punishment for
r—i
>'
EQ]
the crime must of necessity vary depending on the degree of culpability. The circumstances of this case are such that the sentence must be on the lower level of the length of the term of imprisonment to
be imposed. Having regard to the harrowing experience the appellant has already undergone I am of the view that the only term of imprisonment
to be imposed by this court should be two years to be deemed to have commenced on the 13th May, 1991.
In the result the conviction for murder and the sentence of death are set aside. The appellant is found guilty of manslaughter contrary to the provisions of Section 200 of the Code and is sentenced to 2 years imprisonment deemed to have commenced on the 13th May, 1991.
G. BIZOS
JUDGE OF APPEAL
I agree.
A.N.E. AMISSAH
JUDGE PRESIDENT
I agree.
T.A. AGUDA
JUDGE OF APPEAL
DELIVERED IN OPEN COURT on this 14th day of July, 1993.
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