You are here:
SAFLII >>
Databases >>
Botswana: Court of Appeal >>
1994 >>
[1994] BWCA 23
[Database Search]
[Name Search]
[Recent Decisions]
[Noteup]
[Help]
Tlhalefang v The State (Criminal Appeal No. 24/94 ) [1994] BWCA 23 (14 July 1994)
.PDF of original document
.RTF of original document
IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Criminal Appeal No. 24/94
High Court Criminal Trial No. 19/93
In the matter of •.
SHUBILE TLHALEFANG
Appellant
and
THE STATE
Respondent
Mr. Dahanayake for the Appellant Mr. Ngcongco for the Respondent
JUDGMENT
CORAM: AMISSAH J.P.
LORD BRAND J.A. LORD WYLIE J.A.
AMISSAH J.P.
The appellant was charged with murder before Barrington-Jones J. in the High Court. He was on the evidence convicted of the lesser offence of manslaughter. He was sentenced to 10 years' imprisonment on the 16th of February, 1994, but the sentence was made to run from the 11th of December, 1992, the date on which he was taken into custody by the police.
The record of the sentence appears in the words:
"It was in the circumstances a shocking thing for the accused (a well-built man) to do to a moderately built woman; and I consider a sentence of 10 years' imprisonment to be condign sentence; but order that such sentence be reckoned from the 11th December, 1992."
The appellant was then informed of his right to appeal to this Court.
After this sentence had been imposed and the learned judge had risen for the morning, he returned in the afternoon of the
2
same day, namely the 16th of February 1994, and added this
revision to the record:
"3 p.m. By Court: It is a matter of grave disquiet to be informed after the rising of the Court that the accused in this trial does not have a clear record as indicated to me by Mr. Sebotho this morning before I delivered judgment but that he has a previous conviction for Arson when he was sentenced in Kanye on the 2nd March, 1993 to 3 years' imprisonment of which 18 months was conditionally suspended. I therefore feel bound to vary the terms of the sentence I imposed this morning by ordering that the sentence of 10 years which I imposed be made consecutive to any sentence the accused is currently serving."
The note does not say whether the appellant was present when this variation to his sentence was made. But whether he was present or not, Counsel for the State concedes that the alleged previous conviction was neither proved nor admitted as required by sections 286 and 287 of the Criminal Procedure and Evidence Act (Cap 08:02). I am of the opinion that it is a misdirection on the part of a judge to take into account for the purpose of sentencing a previous conviction which is not proved or admitted as required by the Act.
This is not all. There are even more disturbing aspects to this case. The learned judge's purported variation of the sentence was based on some information, the source of which he did not disclose, which appears to be outside the course of the normal proceedings in the case. And he accused one Mr. Sebotho of having misled him by saying that the appellant had an unblemished record, when in fact he had not. We asked during the submissions of Counsel in this Court, who Mr. Sebotho was and were told that there was a Mr. Sebotho who was a State Counsel in the Attorney-General's Chambers but his connection with this case was a puzzle to Counsel appearing before us. The name of
3 the State Attorney who had been referred to in the record of the trial on two occasions was not Mr. Sebotho but Mr. Motsamai. In the circumstances, the identity of the person whose statement led the learned judge to believe that the appellant had no previous record is unclear and the source from which he obtained the information that the appellant had such a record also appears to be extra-judicial. Nevertheless, the learned judge acted upon this information in varying the sentence. That in itself is a serious error.
But the most crucial question which falls for consideration by this Court is whether the learned judge had jurisdiction to vary the sentence he imposed. The appellant had been tried, convicted and sentenced after the trial. At that point in myview, the learned judge became functus officio. A court retains jurisdiction over all matters in a case until sentence. See: R. v. Midhurst Justices exp. Thompson [1974] Q.B. 137 and S (An infant) v. Manchester City Recorder [1971] AC 481. The judge in this case, ceased to have jurisdiction over the case when he imposed sentence at the end of the trial. The law would permit him to make formal corrections and obvious errors appearing on the face of the record in his judgment. But any "corrections" of substance can only be made in review proceedings, where a power of review is conferred on the judge, in which case he would have to follow a prescribed procedure or such procedure as conforms to the rules of natural justice, or failing such power, only by an appellate court. The variation which the learned judge made in this was neither formal nor was it an obvious error on the record. There is, as far as I know,
4 no power in a judge to vary the sentence he himself has imposed upon a conviction after a criminal trial. And the sentence in this case was not left for correction by an appellate court.
Consequently, I find myself in agreement with learned Counsel for the State when he says that the trial judge cannot properly recall or vary his earlier sentence once the accused person leaves the dock. The learned judge in my opinion, had no power to review his own decision. I think that the order varying the sentence cannot stand and should be cancelled.
On behalf of the appellant, it has been argued that quite
apart from the irregularity in the variation of the sentence, 10
years for a conviction for manslaughter in the circumstances of
this case was too harsh and should be reduced. If the evidence
which the learned trial judge accepted at the trial is
considered, the conclusion that this was really an unfortunate
case deserving a relatively lighter sentence cannot be avoided.
The pathologist who conducted the post-mortem examination was of
the opinion that the injuries to the head of the deceased which
resulted in the haemorrhage from which the deceased died could
have been caused by a blow with a blunt instrument, such as the
shoes of the deceased shown to him, when worn and used in a hard
kick to the head. The appellant himself made a statement which
said that:
"On a Monday when we left a shebeen where we had been drinking, we went to my girlfriend's [deceased] place to sleep. While we were asleep somebody knocked at the door [of the house] and I asked my girlfriend [deceased] as to who was knocking. My girlfriend [deceased] responded in an abusive way, and I told her that I was asking so that we could reach an understanding. She [then] went out of the yard. I had to hold her so that she should go back [into] the yard, but she headed me in the chest. I hit her with
5
a fist on the eye, and kicked her on the head. She went to her sister crying. I then left for my mother's place to sleep. That's all."
There was no evidence to the contrary on how the deceased
came to meet her death. In fact the statement of the appellant
that he gave the deceased a kick to the head is not inconsistent
with the finding of the pathologist. Although it is not spelt
out clearly by the statement that the appellant suspected that
the knock at the door while he and the deceased were sleeping was
made by another man, the injury which he said he made from his
girl friend indicates that he had some such suspicion and the
submission was made to our court that the appellant so suspected,
and was very upset by it. There was also the statement by the
appellant that the deceased butted him in the chest with her head
at one time during their obvious quarrel after the knock on the
door. Nevertheless, the learned judge's consideration of factors
affecting sentence after the conviction for manslaughter took no
account of these matters. What he said was:
"I have taken into consideration all that Counsel has
said in mitigation of sentence in this trial; and have
paid particular attention to the fact that the accused
is a first offender [this was before the variation
order] who, but for this offence, has not had any
earlier brush with the law. But even taking account
of the accused's rustic background there is, in this
trial, little to indicate how it was that the accused
came to take the life of the deceased; but there is no
doubt that he ended her life with what must have
comprised at least one vicious booted kick to her head
which caused her death
"
I have already quoted the learned judge's observations and sentence which followed these remarks earlier in this judgment. There may have been no explanation coming from prosecution witnesses of how or why the deceased met her death. But there
6 was on record the appellant's statement, which I have said stood uncontradicted. As I have already said, that statement was not inconsistent with the pathologist's finding on the cause of death. To say therefore, as the learned judge did, that there was little to indicate how it was that the accused came to take the life of the deceased, is with due deference, not quite correct. The learned judge made no reference to the suspicion that the appellant might have had of the identity of the person who knocked at the door when appellant and deceased were asleep. He made no reference to the possible provocation from the headbutt by the deceased. He took into account the viciousness of the kick which was administered but not the fact that the attack by the appellant on the deceased did not involve an onslaught of
several kicks, or the fact that a single kick to the head resulting in death must have been unexpected.
Homicide however caused is a grave matter and I do not in this judgment seek to diminish the seriousness of that factin this case. But having regard to the level of sentences imposed by the courts in this jurisdiction in murder conviction in cases where extenuating circumstances exist, I find the sentence of 10
years upon a conviction for manslaughter in the circumstances found in the appellant's uncontradicted statement, out of proportion with the offence he committed . I would, accordingly, set aside the sentence of 10 years and substitute therefor a sentence of 3 years starting from the 11th of December, 1992, that is, the date on which the appellant was taken into custody
V.
in this case.
Delivered in open court at Lobatse this 14th day of July 1994
A.N.E. AMISSAH JUDGE PRESIDENT
I agree
I agree
LORD BRAND JUDGE OF APPEAL
, ^
Xb WYLIE
JUDGE OF APPEAL
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1994/23.html
