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Thebe and Others v The State (Criminal Appeal No. 2 of 1994) [1994] BWCA 22 (14 July 1994)

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IN rm cooRT ow APPEAL OF BOTSWANA
HEU) AT LOBATSE
In the matter between:   Criminal Appeal No. 2 of 1994
LESEGO THEBE     1st Appellant
KWENAETSILE SEBINYANE    2nd Appellant
0ALEB06A LESEGO  3rd Appellant
KEOAGILE KGAOGANO        4th Appellant
BAISI TSHIPANE   5th Appellant
THE STATE        Respondent
Advocate D. A. Bregman for the Appellants
Mr. L. Itacongco with Mr. P. K. Siele for the Respondent
Coram; Amissah, JP.
Lord Wylie, JA. Steyn, JA.
STEYN JA;
Appellants (hereinafter referred to as the accused) appeared in the Court below charged with the crime of murder contrary to the Provisions of section 202 of the Penal Code (Cap. 08:01). The particulars of the indictment aver that on the 24th of November 1992 and at the Broadhurst Police station, Gaborone, they murdered one Peter Mokgware. They all five pleaded not guilty, were found not guilty of murder, but convicted of manslaughter and sentenced to 5 years imprisonment of which 3 years were conditionally, suspended. They appeal both against their convictions and sentences.
All five of the accused were at the time of the alleged offence members of the Botswana Police Fore. The first accused, Ms Lesego Thebe, is an Assistant Superintendent of Police. She

2 was, at the time the deceased died whilst in the custody of the police, in charge of the Criminal Investigation Department at the Broadhurst police station, Gaborone. The second accused is Detective Sub-Inspector of Police, stationed at C.I.D. South Gaborone - so is the fifth accused. The third and fourth accused, a Detective Sergeant and a Detective Constable respectively, were stationed at Broadhurst Police station, with first accused Ms. Thebe as their immediate superior officer.
It is common cause that the deceased and one Yster Kentshitswe were arrested in connection with an armed robbery that occurred a the Metro Cash and Carry Wholesalers, at Broadhurst in Gaborone three days previously - i.e. on the 21st of November. Accused No. 1 was the investigating officer in charge of the enquiry into these events. A description and registration number of one of the vehicles used in the robbery duly became available. On the day of the death of the deceased and at about 5 am, the 1st accused, driven by the 3rd accused, set out in search of the vehicle and its two occupants. They spotted the vehicle they were looking for, attempted to stop it, but it eluded them and sped away. Their vehicle was fitted with communication equipment, and they were able to summon assistance of their colleagues, including PW1, who traced and arrested the two occupants. They were the deceased and his companion the said "Yster".
Two other police vehicles joined PW1 at the scene of the arrest. One of them was manned by the 2nd and 5th accused and the other by PW's 3 and 6. According to PW1 the deceased and his companion offered no resistance when arrested and he ordered the

3 deceased into his car. He and two other police officers were driven by the deceased to the Broadhurst police station. They arrived there at an undetermined time, but somewhere between 8 and 9.3 0 am. The two suspects were turned over to PW2, a detective sergeant who was the most senior C.I.D. officer on duty at the time. PW1 said that when he left to attend to another robbery at about 10.20 am the two suspects were uninjured and in good physical condition. When he left, the 2nd, and 5th accused persons were at the Police station.
PW2 testified. He, the 3rd and the 4th accused were working under the 1st accused at the Broadhurst Police Station at the time. He confirms that he was on duty when PW1 accompanied by the 2nd and 5th accused brought the two suspects to the Police station. In view of the fact that accused No. 1 had not yet arrived he and accused No. 4 took the suspects to the C.I.D. enquiry office,- they were accompanied by other C.I.D. officers including accused No. 2. They stayed at the office until approximately 10.30 am when accused No. 1 arrived. He left the two suspects in charge of accused No. 1 when he departed the scene. Present inside the office were accused Nos 3 and 4, whilst accused No. 2 was outside in the yard. PW3 was at the Police station when he left but the witness was uncertain whether he was inside the office or not. The deceased was normal and uninjured.
He returned at 12 noon to encounter a very different situation. The deceased was lying "supine" on the bare floor. He called him by his name but got no answer. He enquired as to what had happened and was informed by accused No. 3 who was alone

4
in the office, that the deceased had collapsed during interrogation. Accused No. 2, 4 and 5 were outside. Save for the fact that the deceased did not have his shoes on, he was fully dressed.
The office itself was in good order. He noticed injuries both to the wrist and the ankles of the deceased.
Upon enquiring as to why the deceased had not been taken to the hospital he was told that arrangements had been made to this end. The witness said that although he reported on the investigation into another matter to accused No. 1 who was in her office at the time, he did not discuss "anything about the deceased" with her. He left for lunch at 12.3 0 and when he returned at 13.45 the deceased was still lying "in the same way in the office". He left him there to go to court and when he returned at 3.3 0 pm he was told that the deceased had been taken to hospital.
The first witness who gave some direct evidence as to what
actually occurred between the deceased and his interrogators was
PW3. His verbatim evidence was recorded in the judgment of the
Court a quo and reads as follows:
"1st Accused - Ms Thebe then arrived at about 10 a.m. She was accompanied by the 3rd accused - Sgt. Lesego. The SSG men left office before the 1st accused arrived. First accused came to the enquiry office. She told the two suspects:"we are making some enquiries into a case of robbery which occurred on Saturday at Metro Wholesalers. So you are the suspects in our enquiry. I would like to question you one by one". She then ordered that the other suspect be taken into the police cells. The 4th accused escorted the other suspect into the police cells at Broadhurst Police Station. The deceased was left in the Inquiry office. The cells were about 30 metres away from the Inquiry room. The fourth accused returned to the Inquiry room to join us. The first, second, third and fifth accused were in the room when

5
the fourth accused returned into Inquiry room. I was there too; so were other officers. The 1st accused then told the suspect (deceased); "Now you will have to answer all questions which I put to you in connection with the robbery at Metro". The deceaased immediately retorted: "I am not going to answer any questions. You either take me to join my friend in the police cells or you bring him here so that both of us are questioned together. If you do not do so, I will go to the cells myself."
I interpose to say that at this time when acused No. 1 arrived, there were according to the witnesses, 12 - 16 police officers waiting at the inquiry office. Included amongst them were accused Nos 2, 4 and 5.
I return to the events that took place after the conversation between accused No. 1 and the deceased. PW3 says that after saying that he would himself return to the cells, the deceased stood up shouting and took three steps towards the door. The witness grabbbed him by putting his arms around him from behind, at the abdomen. The deceased then kicked him "by a donkey style." Some officers came to assist him. He heard someone say "where are the handcuffs?" The witness felt pain from the deceased's kicks and went and sat in his car for about an hour before returning to the inquiry office. On his return he found the deceased lying on the floor. The case docket was thrown "all over the office lying on the floor." The furniture was also disturbed. At this stage the deceased was still alive, but had been handcuffed with two pairs of handcuffs and he had leg-cuffs on as well. He observed injuries on the deceased. He was not speaking, "just spitting".
At this stage all five accused persons were present in the room. Apparently the witness suffers from an allergy and it being lunch time he and one Det. Inspector Tidimane (PW6) went

6 to collect his allergy tablets. When they returned they found the deceased still handcuffed and chained lying on the floor. He was no longer breathing "and he was stiff". Accused No. 3 was seated on the table "waiting over the deceased". When asked by PW6 why the deceased was not taken to the hospital No. 3 failed to respond. However PW6 went to Accused No. l's office and returned to inform PW3 "they were waiting for some officers from C.I.D. South". These two (PW3 and PW6) now went to buy food at the supermarket. Upon their return at about 2.3 0 they found the deceased lying in a Police land cruiser. The deceased was dead. He was taken to the hospital.
According to PW3 the deceased was not cautioned before the questioning by Accused No. 1. In cross-examination he confirmed that the deceased was not violent in his presence. He never jumped and fell on his face while in handcuffs. He admitted having said this in his statement to one Mr. Setiko "because that was what I heard from other police officers".
PW5 is a Superintendent of the Botswana Police Force. He is the Assistant Divisional Criminal Investigating officer, South. As a result of a telephone call at about 2.30 pm, he went to investigate the events at C.I.D. offices at Broadhurst. He was met by Accused No. 1. She told him the deceased had collapsed during interviewing by the police. The deceased had been violent and had to be handcuffed. He was led by accused Nos 2, 3,4 and 5 to the enquiry office where the deceased was lying. He appeared dead. He was fully dressed and had his shoes on. The furniture was undisturbed.
Sergeant Tidimane (PW6) was the next witness to testify.

7 He was one of the party who brought the deceased and his co-suspect to the Police station at Broadhurst. He denied being present at the interrogation. He had gone to the bank. Initially, and in evidence in chief, he confined his evidence to what he observed when he returned from the bank. This was that the deceased was handcuffed and leg-ironed and was being asked questions about the robbery. The deceassed said that he did not like to be interrogated alone. Although accused No. 1 had told him to remain there, he (the witness) asked permission to go to the bank. (Whether this was a second or only occasion is not clear.)
He goes on to say that when he returned from the bank (either on the first or a subsequent occasion) the deceased was being asked and was answering questions. He was asked by the 1st Accused where the money - the proceeds of the robbery was. The deceased said the money was in Tlokweng at his girl-friend's house. Accused No. 2, PW2, Accused Nos 3, 4 and 5 as well as he himself participated in the questioning. The deceased was cooperative in answering questions.
The witness confirms the fact that he went with PW3 to collect the latter's allergy tablets. It was about 12 noon when they left. They returned at about 12.30. They found the deceased lying on the floor presided over by accused No. 3. He was told by No. 3 that the deceased had fallen down. He says that he was told by PW3 that the deceased had kicked him. He denied being present when the deceased was handcuffed. Before he left with PW3 to get the latter's tablets, the deceased "looked frightened and was sweating" . He also said that they

8 normally handcuff and leg-iron suspects at interviews if the prisoner is violent. The purpose of interviewing is according to the witness "to get the truth out of him".
The next witness to be called was PW7 Dct. Constable Mogapi. When he came to the Police station at around 9 am he found the two suspects in the robbery case standing in the inquiry room. Shortly after his arrival Accused No. 1 came to the office. She ordered accused No. 4 to take the other suspect (not the deceased) to the police cells. He then went out to drink water. He was out for about two minutes. When he came back he heard the deceased making a request to take off his shirt. The 1st accused told him that he should also take off his trousers as he (the deceased) had said that he did not want to be dirty. The deceased then also removed his trousers and was ultimately dressed only in his underwear. He had no shoes on. The leg-irons were removed for this purpose but were restored after he had undressed. The deceased did not offer resistance when the leg-irons were restored. The witness also started to give evidence as to what had occurred during the handcuffing. He then began to relate a version which would at this point have removed him from the scene, when the Court intervened. Clearly dissatisfied with the way in which the prosecution was being conducted, the Judge a quo expressed the view that in order to enable the Court "to arrive at a just decision" a more senior prosecutor should be engaged to present the State's case. The case was then postponed for this purpose for 2 days. When the court reconvened the matter was by agreement postponed for three weeks, when the trial recommenced with the examination in chief

9 Of PW7.
The witness (PW7) re-affirmed that it was Accused No. 1 that asked the deceased to undress. He said that it took more than 30-40 minutes to handcuff the deceased. The latter was normal and not boisterous before she (No. 1) ordered him to be handcuffed. He had been put in leg-irons before being handcuffed. The deceased did not resist being interrogated. He positively identified the 3rd accused as the person who grabbed hold of the deceased with a pair of handcuffs in his hand. The witness then said that the deceased resisted being handcuffed and there was a struggle that lasted about 30 minutes. The policemen involved in the struggle were PW9 and accused Nos 2 to 5. Accused No. 1 was looking on and took no part in "the struggle she was supervising."
In cross-examination he said that he could not remember any one falling during the scuffle. He reconfirmed that accused Nos 2 to 5 all participated in the struggle with the deceased.
PW9 was another eye witness called by the State. He is also a detective Constable who had resigned from the force at the time he testified. He confirms the arrest of the two suspects at about 9 a.m. When accused No. 1 arrived she informed the suspects that they were going to be questioned in connection with the robbery but the suspects would be interviewed separately. Accused No. 4 took the suspect "Yster" to the cells. Both suspects denied involvement in the robbery.
After "Yster" had been removed from the scene, the deceased protested at being interviewed separately and said that "he would have nothing to tell us in the absence of his colleague." He got

10 up to follow his colleague and started walking to the door (at this stage all five accused were present) . PW3 barred his way-pushed him gently and asked him to go and sit down. The deceased still persisted in going out. The first accused then gave orders that the deceased should be "handcuffed" as he does not want to co-operate." The deceased would not submit to being handcuffed and accused No. 3 was not able on his own to handcuff him. "So we had to give him a hand." However it became clear from his evidence that the deceased had already been placed in leg-irons when an attempt was made to handcuff him. The witness says that he left whilst the handcuffing was taking place - he was only involved in the struggle with the deceased for about five minutes before he withdrew. The witness did not observe any donkey kick as alleged by PW3. When there was an altercation between the latter and the deceased "they were facing each other."
The State introduced the evidence of a forensic pathologist Dr. Maramreddy (PW8). He certified that the deceased died as a result of a "vagal inhibition due to sternoclavicular dislocation with resulting haemorrhage." He found the following injuries on the person of the deceased.
"1. An abrasion 1cm x 0.2cm on the forehead, right side, vertically placed.
2.       An abrasion 4.5cm x 0.5cm above the left buttock, obliquely laced.
3.       An abrasion 6.5cm x 3.5cm on the radial side of the left wrist obliquely placed.
4.       An abrasion 4cm x 3cm on the ulnar side of left wrist vertically placed.
5.       An abrasion 10cm x 6.5cm on the radial side of the right wrist obliquely placed.
6.       An abrasion 3.8cm x 1.5cm on the back of the
2.      

11
right knee, obliquely placed.
7.       An abrasion 1.5 cm x 0.7 cm above the right malleolus horizontally placed.
8.       An abrasion 3cm x 1.8cm horizontally placed 5cm above the left lateral malleolus.
9.       An abrasion 1.5cm x 0.5cm on the back of the left heel, horizontally placed."
The witness made the following additional observations.
"ADDITIONAL OBSERVATIONS: On internal examination there was dislocation of left sternoclavicular joint with haemorrhage 13cm x 10cm on the 1st and 2nd and 3rd ribs on the left side and the intercostal muscles. Haemorrhaage noticed under the collar bone, under the sternum in the superior mediastinum and also passing on to the C7, Tl and T2 vetebra on the left side. No alcohol found in the blood. All the above injuries were ante mortem in nature. Vagal inhibition was due to dislocation of sternoclavicular joint which is of traumatic in origion (Blunt trauma) resulting in cardiac arrest and death."
The injuries around the wrist and the ankles could have been caused by the victim struggling whilst being handcuffed and put in leg-irons. Injuries 1 to 6 could have been due to a fall or a blow with a blunt instrument such as a stick or a plank.
Concerning the dislocation of the left sternoclavicular joint which resulted in the haemorrhage, he was of the view that a blow with a fist or a kick or forcibly pulling of the arms backwards or even a fall backwards could have caused the dislocation. This occurred between the sternum and the collarbone at the joint of these two bones.
The Assistant Commissioner of Police testified. He confirmed that his enquiries revealed that the deceased was not cautioned before the interview. (This was common cause). He made it clear that an accused person has a right to speak or not to speak; he could not be forced to do so and a suspect should not be put into leg-irons or handcuffed if he decides not to say

12 anything.
Two of the accused, Nos 2 and 5 elected to keep silent and closed their cases. The 1st, 3rd and 4th accused testified. Accused No. 1 is an Assistant Superintendent of Police. She confirmed the arrest of the two suspects and how they came to be at the inquiry office. She says that she took down the particulars of both the suspects and informed them that they were suspected of being involved in the robbery at Metro Cash and Carry. She confirms that she ordered one suspect to be taken to the cells. Whilst this was taking place she started making entries into the diary of action column of the relevant police docket. She then proceeds to depose to a version which differed significantly from that given by the State witnesses. It went as follows:
The deceased suddenly stood up and walked to the door. PW3 who had been sitting on a bench next to him grabbed him from behind to stop him from going out of the office. The deceased had said nothing before attempting to go out. The deceased had said nothing before attempting to go out. The deceased then gave PW3 a "donkey kick" which sent him staggering. She proceeds to describe a violent struggle in which the deceased pushed the table at which she had been sitting and it caught her on her breast. At this point "someone" put the deceased in leg-irons. She then gave an instruction that he should be handcuffed, " because he was struggling and kicking people." She added that "he was kicking everyone around and even the table. She was called out of the office to attend to another matter and on her return "met the deceased pressing the handcuff against himself

13 and (he) was bleeding from the wrist." She said generally to the officers present that they should look for the key and loosen the handcuffs. "Thus said, the accused stood and fell to the floor." She then ordered the handcuffs and the leg-irons to be removed. She said she went to find a vehicle to take him to the hospital but there was no vehicle available.
She said that she never questioned the deceased in connection with the robbery and never cautioned him. Although she admits being present during the attempted handcuffing, this step was necessary because the deceased was very violent. At one time she was even struggling to get out from underneath the table the deceased had pushed against her. She denied that a black plastic bag had been placed over the deceased's head and that he bit himself on the arm in an attempt to bite his way out of the bag. She said that she had secured the transport of the deceased within 20 minutes after his collapse. The reason for handcuffing the deceased was "because he was committing another offence by kicking."
Accused No. 3 gave evidence and distanced himself from the events. He said he was not there at any relevant time prior to the deceased collapsing. Indeed "immediately I entered.... the deceased stood up and fell down and collapsed.
In cross-examination however he conceded that he was present when the deceased was being questioned by PW6 and PW7. However he denied being involved in the struggle or that he produced handcuffs as alleged.
Accused No. 4 a detective constable also distances himself from any struggle with the deceased. He took 10-30 minutes to

14 take "Yster" to his cell and to attend to the necessary formalities associated therewith. When he returned a struggle was going on involving PW3, PW6, PW7, PW9 and PW2. Deceased was finally handcuffed, but he does not know who did. He did not find it necessary to join in the struggle. The leg-irons were not put on the deceased in his presence.
That was the evidence upon which the trial Judge had to make his findings.
In its judgment the court a quo rejected the evidence of PW3 and accused No. 1 that the order to handcuff the deceased issued by accused No.l, was made as a result of the "donkey kick" administered by the deceased. Gyeke-Dako J. who presided found that "the object of keeping the deceased in the room was not merely to interrogate him about the robbery, but to compel him by hook or by crook, to tell them all that he knew about the robbery and where the money was."
This finding was attacked by Mr. Bregman who appeared on behalf of all five appellants on several grounds. The first of these was that the record demonstrated what he called "a very severe attitude" towards the matter by the presiding judge. In substantiation of this contention he directed our attention to two matters. The first of these was that an application was made by the accused to be released on bail which was refused by Gyeke-Dako J. When he refused the application he said that he would only do so if the trial could be expedited and he directed that the trial should receive priority on the Court list. This was indeed done. Whilst not suggesting that there was anything improper in this ruling, Mr. Bregman argued that this was the

15 first indication of what he called a severe attitude and which he contended inhibited the presiding officer from adjudicating upon contentious issues with the requisite objectivity and detachment, such as e.g. whether it was a "donkey kick" that triggered the handcuffing of the deceased.
He next referred to the somewhat unusual occurence during the course of the hearing referred to above, when the Court intervened in order to secure more experienced prosecuting counsel. The presiding judge clearly became concerned at the manner in which the State case was being conducted. He believed, and on the record with some justification, that the lack of experience of prosecuting counsel was inhibiting the State from presenting its evidence with the necessary clarity and determination. He therefore postponed the case for a few days in order to enable more senior counsel to be engaged thereby hopefully enhancing the quality of the prosecution.
Again Mr. Bregman did not challenge the right of the presiding officer to act as he did. His argument once again was that it waas but another demonstration of a severe attitude which impacted on the Judge's ability to come to dispassionate conclusions on the evidence before him and ultimately also led to the imposition of unduly severe sentences.
I think it should be clear that judicial officers should refrain from interventions in the conduct of a trial which may create an impression that they have forteited their objectivity and impartiality. It is trite, but nevertheless true, that justice must not only be done, but must be seen to be done. Havig said that however, it is also important to recognise the

16
right and the duty of the judge to ensure that proceedings before
him are conducted in such a manner that a just outcome is likely.
In a thorough and comprehensive argument Mr. Ngcongco for
the State referred us to a number of decided cases in which this
overiding obligation has been affirmed. Thus e.g. in Hepworth
1928 AD 265, Curlewis JA formulated a Judge's duty in the
following terms:
"... a criminal trial is not a game where one side is entitled to claim a judge's benefit of any omission or mistake made by the other side, and a judge's position in a criminal trial is not merely that of an umpire to see that the rules of the game are observed by both sides. A judge is an administrator of justice, he is not merely a figure-head; he has not only a duty to direct and conduct the proceedings according to the recognised rules of procedure, but to see to it that justice is done..."
Counsel also in my view correctly pointed to the danger that where ineptness prejudices the proper presentation of a party's case, a real risk arises that the Court, in attempting to determine the facts, takes upon itself the responsibility to elicit evidence and thus, by entering the fray creates an impression that it is a contestant rather than an arbitrator. The alternative of through the adoption of a laissez faire attitude, permitting the search for justice to be subverted, is kan equally unacceptable premise.
It is against this background that the conduct of the presiding officer must be judged.
In view of the serious nature of the contentions advance, I have scrutinised the record in this matter with great care. I beleive that the learned Judge conducted the trial impeccably. His rulings were fair and appropriate. He did not "enter the arena" himself, nor did he make findings which were not supported

17
by prima facie credible evidence.
I must emphasise that Mr. Bregman did not suggest that the trial Judge was unfair or that he conducted himself in such a manner that the outcome was unjust. However it is important that this court should affirm that the proceedings were conducted strictly in accordance with justice. There is in my view no subsance in the contention that the approach of the judge was flawed in any way.
Mr. Bregman proceeded to analyse the evidence and to challenge the key finding of the Court a quo that it was not the
donkey kick that prompted accused No 1 to order the handcuffing
o of the deceased. A reading of the summary of the testimony
recorded above reveals that there was ample evidence to sustain
the findings made in this regard by the Court a quo. More
particularly, the evidence of PWs 7 and 9, whose versions were
preferred by the court is completely inconsistent with the
version deposed to by PW3 and accused No 1 in this respect.
Moreover accused No. 1 was clearly a lying witness upon whose
evidence no reliance can be placed, whilst PW3 was determined to
understate his own role and participation in the assault.
It is my view that the court was right when it found that
accused No 1 who was in charge of the investigation embarked upon
a number of courses of action compatible only with an intention
to intimidate and harass the deceased into "cooperating" with his
inquisitors. She separates him from his companion, she has him
placed in leg-irons, when he removes his shirt, she also orders
him to take off khis trousers, and when he declines to answer
questions she orders him to be handcuffed. When he resists, he

18 is assaulted over a considerable period of time, which she herself estimates must have taken a half an hour.

All these events take place against a backdrop of a suspect who has evidenced no resistance to arrest, who was on the evidence accepted in the Court below not boisterous or difficult but docile. Moreover, he is alone in the presence of at least 10 police officers who are involved in his interrogation. He is in police custody for at least 2-3 hours before he dies - clearly as a result of violence applied to his person by those in whose power he finds himself. It takes a further 3 hours before he is removed to the hospital.
Mr. Bregman also argued that the state had not proved that the accused, although acting in concert and with common purpose, were guilty of the crime of manslaughter. In this regard he contended that they could not reasonably have foreseen that the probable outcome of their actions would be that the deceased would die. The manner of his demise was so unusual and unexpected that they could not be held accountable for it.
Had the five accused or any one of them been held to have foreseen the death of the deceased as a probable outcome of their assualt upon him, they would have been convicted of murder, not of manslaughter. It is the fact that they were found not to have intended or desired the death of the deceased that prompted the Court to find them guilty only of manslaughter. However, the question is, when they jointly embarked upon their assault of the deceased can it be held that they foresaw that they would probably cause him serious bodily injury? If they did, they were rightly convicted of culpable homicide.

19 Section 200 (1) the Penal Code defines the offence of manslaughter in the following terms: "Any person who by an unlawful act or omission causes the death of another person is guilty of the offence of manslaughter". Manslaughter may, accordig to "The Criminal Law in Botswana by Kwame Frimpong kand Alexander McCall Smith be voluntary or involuntary. They define these two manifestations of the crime as follows:
"Voluntary manslaughter is the offence committed by one who kills another with malice aforethought but where a recognised mitigating plea is accepted, such as in a case where the accused has killed under provocation. Involuntary manslaughter occurs where there is no intention to cause the death of another."
(p.79)
However, the unlawful act must be one which is dangerous and likely to cause injury to another. See in this regard DPP v. Newbury 1976 2 All E.R. 365, R v. Barry Reid 1976 CAR 1976, 109 and Frimpong et al op cit pp 79-80.
Mr. Bregman contended that the evidence did not support such a finding. The post morterm examination did not reveal such an extensive assault on the deceased as to warrant a decision that they actually would have perceived the probability of serious bodily harm; or differently put, that they should have apprehended that what they were doing was dangerous.
I do not agree. Whilst it is true that the death of the deceased was unexpected and some of the abrasions superficial, considerable violence had to have been used in order to inflict them. The numerous injuries found on the deceased as contained in the forensic pathologists report is ample confirmation of this fact. When ten police officers embark upon a serious assault perpetrated upon a defenceless detainee over a protracted period

20 of time, those who participate therein can hardly be heard to contend that they did not intend to do him serious bodily harm.
It was also argued before us that the instruction given by accused No. 1 to handcuff the suspect was not unlawful and that therefore those who carried it out could not be held to have acted unlawfully. In order to adjudicate upon this contention it is necessary to examine the circumstances in which this intrisction was given. The deceased was in leg-irons. He had up to that point offered no resistance. He objected to being separately questioned and - as he was in law entitled to do, declined to answer any further questions unless he was interrogated together with his joint suspect. Why was it necessary to order that he be handcuffed? What possible justification could there be for a police officer in pursuit of a lawful discharge of his or her duties to issue such an order? In my view the order was unlawful and its execution was an assault upon the person of the supect as a result of which he died. This is the more so in view of the fact that there had been a clear and admitted failure to comply with the Judge's Rules.
Moreover, as Mr Ngcongco points out in his heads the failure to observe the Judges Rules undermines vital procedural safeguards of great importance in ensuring that the rights of suspect are not violated and that incidents such as occurred in the present case are avoided. A constitution such as that of the Republic of Botswana which gurantees a defendant a fair trial must voch-safe no less to a suspect in the custody of the police. See in this regard the exposition of Warren C.J. in the well

21
known decision in Miranda v. Arizona 384 US (1965) where the
learned Chief Justice said:
"Prior to questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him... If however he indicates in any manner and at any stage of the process that he wishes to consult an attorny before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the poliice may not question him..."
Some attempt was also made to argue that the evidence fell short of proof that the individual accused had each of them participated in the assault upon the deceased. A scrutiny of the evidence reveals the complicity and participation of each one of them to a degree sufficient to sustain a conviction it being conceded that they acted in concert.
In my view all five accused were rightly convicted.
In challenging the sentences imposed upon the accused Mr. Bregman advanced the following contentions.
The trial judge in passing sentence referred to evidence that torture as a means of extracting information from suspects is not part of the police investigatory procedures in this country. Accordingly, he went on to say, if an officer uses torture or any form of violence as a modus operandi in the performance of his or her duties, the Court should be quick to nip it in the bud before it becomes infectious and "assumes uncontrollable ramifications". This, so it was contended, amounted to a misdirection because there was no evidence of "torture" by the accused.
I think that this is an overstatement. The Judge a quo clearly qualified his finding by the use of the words "or any

22 form of violence." In any event the senseless assault upon the deceased in order to intimidate him can with some justification be described as torture. There was in my view no misdirection on the part of the learned Judge - especially if his judgment is read as a whole. It was a balanced evaluation of the relevant factors to be taken into account in assessing an appropriate penalty.
It waas also suggested that there shoud have been a differentiation in the sentences imposed on the five accused in accordance with the role of each one of them. Whilst this is true as a matter of principle, this does not appear to have been the case presented in the Court below. However that may be, and except that the guilt of No. 1 accused may well have merited a more severe penalty than she actually received, I believe that any discrimination between the accused in respect of sentence was unwarranted.
Finally, as I indicated earlier in this judgment, Mr. Bregman contended that the sentences reflected the severe attitude of the Judge in the Court below and was unduly severe.
The five accused have been punished not only by the Court also by society. They have lost their employment and I am sure will forfeit considerable benefits from their employer. They will come out of prison having suffered the inevitable indignities associated with imprisonment. They could well find it difficult to secure employment - especially jobs with the standing, remuneration and privileges of a police officer.
However, the gravity of the offence may not be underestimated. The sentence must at least in part be a

V ,
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reflection of society's abhorrence of the abuse of authority of which their crime speaks. The deceased was defenceless in their hands. It was a gross violation of his rights and his dignity to have treated him as they did. That he died was not anticipated or foreseen, but when a police officer embarks on a course of action which he or she knows is unlawful and in the process assaults a suspect and causes his death, imprisonment is not an inappropriate sentence. Indeed, more often than not, and always depending on the circumstances of each case, imprisonment may well be the rightful penalty.
I share the view of the Court a quo that it is our duty also through the sentences we pass to check all actions that exhibit a tendency towards the abuse of power, especially on the defenceless. Botswana has a proud record in respect of its observances of the rule of law and tradition which reflects a human rights culture. Its constitution expresses the desire of its people to live under the law and seeks to ensure the protection of the fundamental rights and freedoms of each individual.
Fundamental to these values is a system which in all its facets, pays homage to these principles. Those who do not observe them, may well be called upon to pay the price in the hard coinage of punishment.
I have great understanding and empathy for the plight of the accused. In my view however, they received the punishment which their offence merited.

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I would dismiss the appeal and confirm the convictions and sentences.
Delivered in open court at Lobatse this 14th day of July, 1994.
STEYN    v
JUDGE ^P-APPESir
/ i
A. N. E. AMISSAH JUDGE PRESIDENT
LORD WYLIE
JUDGE OF APPEAAL

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