You are here:
SAFLII >>
Databases >>
Botswana: Court of Appeal >>
1994 >>
[1994] BWCA 3
[Database Search]
[Name Search]
[Recent Decisions]
[Noteup]
[Help]
Gabaakanye v The State (Criminal Appeal No. 19 of 1993 ) [1994] BWCA 3; [1994] B.L.R. 17 (CA) (31 January 1994)
.PDF of original document
.RTF of original document
IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Criminal Appeal No. 19 of 1993
(High Court Criminal Trial No. F18 of 1992)
In the matter between:-
PATRICK GABAAKANYE
Appellant
and
THE STATE
Respondent
Mr. E.W. Fashole-Luke II for the Appellant Mr. M.K. Achiume for the Respondent
JUDGMENT
Coram- AMISSAH JP. AGUDA JA. SCHREINER JA.
SCHREINER JA:
The appellant was found guilty of two offences arising from the same incident which occurred on the 27th March 1991 at the Radisele Bar and Bottle Store at Radisele Village. He is alleged to have
murdered a night watchman, Boitumelo Phiri, and to have robbed the bottle store of P125 and a radio valued at P350.
At about 8 or 9 o'clock in the evening of the 27th March 1991 a man
2
entered the premises of the Radisele Bar and Bottle Store where the witnesses Oreeditse Puso and Gabobofane Tautona were on duty as bar ladies. The deceased was also present. He was the nightwatchman of the premises.
The man demanded money. He was carrying a shot gun which, while he was demanding money, he held with the barrel pointing upward. The deceased ran into the store-room which was situated inside the bar and shouted that the two ladies should give the intruder money. At this stage the intruder was pointing the gun at Oreeditse who told Gabobofane to give him money which she did. There was money hidden under the refrigerator and also in the till. Oreeditse says that the deceased then tried to run away and the appellant shot him. At this stage the two ladies were inside the storeroom.
An identification parade was held and only Gabobofane was able to pick out the appellant. Oreeditse says that she could not identify
him because of the shock from which she suffered when she was threatened with the gun.
There was a radio standing on the bar counter. The intruder, when he was demanding money took the radio to his side of the bar counter. It does not appear that at the stage when the intruder appropriated the radio, he was actually pointing the gun at one or other of the bar ladies. However the mere fact of his barging into the premises with a gun is enough to justify a finding of robbery of the radio.
3
A radio was found in the sleeping quarters of the appellant. There was some dispute as to whether this radio was the one which was taken by the intruder. However the radio which was found had no handle and bore the name of the proprietor Mr. Mmereki and was identified by him as being his. I do not think that it can be seriously contended that the State has not proved that the intruder on the 27th March was the appellant. The combination of the identification by Gabobofane and the finding of the radio stolen from the bar at the sleeping quarters of the appellant is conclusive.
The appellant gave evidence at the trial. His story was that he was one of two people looking for money on the night of the 27th March and that he remained outside while his companion went into
the bar and he does not know what occurred inside. This story is to be compared with the version of events which was given when he was asked to plead to the murder charge. At this stage he stated that he understood the charge and pleaded guilty and his counsel, on his behalf and in explanation of the plea said that "the person was indeed killed by the accused but it was not his intention to hurt but the gun went off in a struggle." This version had been given by the appellant in his statement to a magistrate in Serowe. The learned Judge can, under the circumstances, hardly be criticised for rejecting the appellant's evidence entirely and concentrating upon the reliability of the witnesses for the State.
4
Counsel for the appellant raised a number of issues which, he contended, should justify this court in upholding the appeal. He also contended that the apparent failure by the learned judge to observe the correct procedure in regard to the consideration of extenuating circumstances was an irregularity which would justify setting aside the conviction. I will deal with each shortly with some of the issues relevant to conviction because in my view, none of them has merit.
The judgment contains the following sentence:-
"The accused did not in any way justify the shooting, his defence
being that it was not done by him." It was argued that from this passage it would appear that there was an onus on the appellant to prove his innocence. I do not think
that this is the meaning of this passage. In the context of the evidence given by the appellant the learned Judge was merely commenting on the fact that the defence raised by the appellant did not put in issue between him and the witnesses for the State the question of whether, assuming he shot the deceased, there was some justification for his action. Because his ultimate defence was that he was not present when the shooting occurred (a defence which was quite correctly rejected) there was no need to consider the matter as if there were conflicting versions of what occurred at the time of the shooting. It would be surprising indeed if the learned Judge who has very considerable experience in trying criminal cases should suddenly forget the basic principle of criminal
5
procedure that the State must prove the commission of the offence beyond a reasonable doubt.
It was sought to point to inconsistences in the evidence of the two eye witnesses to the shooting and to persuade the court that they were of sufficient moment to justify a finding that the State had not proved its case. It seems true that there were some inconsistencies in the evidence but they were minor viewed against the background of a sudden and unexpected attack by the intruder creating fear and confusion in the bar with people moving in and out of the storeroom and either witness concentrating their attention on slightly different aspects of the scene. I can see no reason for criticising the learned Judge's acceptance of the evidence of the two bar ladies.
The State was criticised for not carrying out tests of the bullets which were found by the police in the bar and any that may have been found in the body of the deceased. The gun which was described
by the witnesses and which was found in the sleeping quarters of the appellant was a shot gun and the post-mortem examination report records
the cause of death as "Haemorrhage due to shot gun injury." Whether the "bullets" recovered by the police were bullets from a rifled weapon or were merely pellets from a shot gun cartridge is not clear. However, even assuming that there was no language problems, it does not seem to me
that there was any burden on the investigating officer to attempt to ascertain whether, instead of one shot being fired as deposed to by the eye
6
witnesses there could have been a number of shots fired. Even if the "bullets" were indeed bullets and not shot gun pellets the presence of other bullets in the bar would not, in view of the finding of reliablity on the part of the two eye witnesses, have affected the position
because it is clear that the deceased was killed by a shot gun. If they were shot gun pellets then they could have been from the same cartridge as the other pellets which killed the deceased.
A feature of the present case, if the record is to be believed, is the number of questions put by the learned trial Judge. Reliance was placed upon the judgment of Aguda JA in Lemme v. The State (1985) BLR 576 where he discusses the limits which must be placed upon questioning by the presiding judicial officer and sets out three limitations which a judicial officer should place upon his interventions while witnesses are giving evidence. The nature of the questions which seem to have emanated from the Bench might indicate that the shorthand writer or the person transcribing the notes did not at all stages indicate the point at which the questioning by the Court ceased and that by the State began. The questions attributed to the Court are, as far as can be judged, the kind of questions which would be put by counsel for
the State in eliciting the facts from a witnesss. They are not in the least hostile and do not do anything more than seek information. I do not think that even if all the questions are correctly allocated as between the Bench and Counsel for the State there could have been present in the
7
mind of the accused the impression that the learned Judge was being unfair or biased.
The adequacy of the identification of the accused as the man responsible for the killing was also questioned. This has been referred to above. Gabobofane identified the appellant as the man responsible
at an identification parade the procedure for which he has been criticised, while Oreeditse failed to do so. Identification was probably not easy in the excitement and confusion of the night of the robbery and it might be dangerous to rely purely upon identification by one person. However the radio which was clearly identified by the owner of
the bar was found in the sleeping quarters of the appellant. Furthermore, when called upon to plead the appellant initially pleaded
guilty to killing the deceased. This point has no merit.
In the result I am of the view that the verdict of guilty found by the learned Judge was correct and that there were no material irregularities in the conduct of the case up to the stage of conviction.
I turn now to deal with question of sentence and, in particular, of extenuating circumstances.
Section 203 (1) of the Penal Code (Cap. 08:01) provides that, subject to the provisions of subsection (2), any person convicted of murder shall be sentenced to death. Subsection (2) provides that where a court in convicting a person of murder is of the opinion that there are extenuating circumstances, it may impose any sentence other than
8
death. Sub-section (3) directs that the court in deciding whether or not there are extenuating circumstances, shall take into consideration the standards of behaviour of an ordinary person of the class of the community to which the convicted person belongs.
No specific procedure is laid down for the investigation of the question of extenuating circumstances. The usual procedure at the end of the trial and addresses in a murder case is for the court to deliver judgment on the issue of the guilt of the accused on the charge of murder. If there is a finding of guilty, the accused is then given an opportunity to lead evidence concerning extenuating circumstances. After addresses by Counsel for the accused and for the State directed to the question as to whether it has been established by the accused that there are extenuating circumstances, the court makes a finding
on that issue. If extenuating circumstances are not found the accused is then sentenced to death. If extenuating circumstances are found to exist the court may, if it thinks fit, impose any sentence which is appropriate in the circumstances.
In Mojagi v. The State [1985 ] BLR 560 Aguda JA, when dealing with the question of extenuating circumstances, repeated the Practice Direction of Maisels JA in Losang v. The State [ 1985J BLR 281 which was in the following term:-
"The learned trial Judge ... correctly decided to deal with the
question of extenuation circumstances as a separate issue.
9
This procedure ought to be followed in all cases of murder where the question arises as to whether the death sentence ought to be imposed or not. In some cases extenuating circumstances may become apparent in the course of the trial. In all others where there is a verdict of guilty to murder the accused should be permitted to lead evidence and to address the court in extenuation or merely if he so desires, to address the court in mitigation." Aguda JA. continues:-
"All trial Judges should have this procedure in mind. Not only must they permit the accused to lead evidence and address the court in respect of extenuating circumstances, they must indeed ask any person convicted of the offence of murder after pronouncing the verdict if he wishes to call evidence on the issue and in addition if he would like to address the court on the issue. I think that justice demands that this procedure be meticulously followed."
The judgment was concurred in by Amissah JA as he then was and Murray J. It constutes a clear and unambiguous direction as to the procedure to be followed and emphasised the great importance of following it. At this stage of a trial when the life of a person is in the balance every opportunity must be provided for facts which may justify the court in not applying the death sentence to be brought out and their significance argued.
10
There has been no application in the present case for any amendment or addition to the record and this court must therefore attempt from what is set out in the record to ascertain what occurred. It
appears that the evidence was completed on the 5th March 1993 and submissions were made by Counsel for the State and the accused. The matter was remanded to the 27th May for judgment on which date a written judgment was delivered finding the accused guilty of murder and robbery. The State then said that the accused had twelve previous convictions none of which related to the robbery. On the following day proceedings opened with the court putting to the appellant a large number of previous convictions. The appellant denied knowledge of them and, when the State was asked whether it wished to prove them, it replied that it was not thought necessary to do this. This was presumably because it was thought that the sentence on the charge of murder would render that on the robbery charge unimportant.
Thereafter the learned Judge asked the appellant whether there was anything he wished to say why sentence should not be passed "according to law". This question is not in its import unlike the question which is put to an accused person before sentence of death is passed asking him whether he has anything to say why that sentence should not be imposed upon him. However, when the appellant replied that he had nothing to say, his counsel said a few things in mitigation, namely, that he was young when he committed the offence, that he had an aged
11
mother and was unemployed at that time.
When the matter came before this court counsel for the appellant was asked whether he knew of any extenuating circumstances which might have been raised with the court. He replied that he did not know of any but indicated that communication between his client and himself
was not easy because of a language problem.
If the record is reasonably accurate concerning what happened after the learned Judge had delivered his judgment on the question of conviction, it does not appear to me that the admonitions contained in the judgments above referred to were followed. It would seem that both the court and counsel for the appellant treated the case as if it was an ordinary one where, after conviction, the accused adduces evidence and/or makes a statement in mitigation of sentence and the matter decided upon by the presiding officer. Mitigation is different from extinuating circumstances. For example previous convictions are not relevant to the latter. In my view it is important that the presiding
Judge should concentrate his mind specifically on the question of extenuating circumstances where there has been a conviction for murder. He must decide whether "there are circumstances as are connected with or have a relation to the conduct of the accused in the commission of the crime" which should carry weight (R v. Mfoni 1935 OPD 191). It seems to me that this did not happen in the present case. The court considered the question of mitigation which was relevant to the robbery
count but
12
did not go on to invite evidence and argument on the issue of extenuating circumstances.
I am therefore of the view that there was an irregularity at the trial of the appellant and that the irregularity was a serious one. The question now is whethere there is anything which should and
can be done about it.
By Section 7 of the Court of Appeal Act (Cap. 04:01) the Court of Appeal has the power, authority and jurisdiction vested in the High Court. By Section 10(1) (c) of the High Court Act the High Court
on hearing an appeal from the decision of a magistrate has the power to remit a case for further hearing with such instructions as in the opinion of the court may deem necessary. In terms of sub-paragraph (d) it may impose a punishment which may be more or less severe
than the sentence which had been imposed by the lower court and/or of a different nature. The proviso to sub-section (1) of section 10 is important in the present case. It is as follows:-
"Provided that notwithstanding that the Court is of the opinion
that any point may be decided in favour of the appellant, no
conviction or sentence shall be set aside or altered by reason
of any irregularity or defect in the record of proceedings,
unless it appears to the court that a failure of justice has
in fact resulted therefrom."
In the present case there is nothing at all to indicate that there
13
were circumstances which would fall into the category of extenuating circumstances" for the purposes of Section 203 (1) of the Penal Code. On the other hand the possibility exists that they were present. One can speculate concerning drink or mental imbalance of one kind or another.
In The State v. Moodie 1961 (4) SA 752 CA) at 758 Holmes JA points to the exceptional case where the irregularity consists of such a gross departure from established rules of procedure that the accused has not been properly tried. This, he holds, is per se a failure of justice where it is unnecessary to apply the test of an enquiry as to whether a reasonable trial court would inevitably have concluded if there had been no irregularity. Whether an irregularity falls within this exceptional category depends upon the nature and degree of the irregularity. I am of the view that the irregularity in the present case was sufficiently serious to warrant a finding that the accused was not properly tried after the stage of conviction had been reached.
In Moodie's case (supra) the conviction and sentence were set aside because the irregularity had occurred before conviction. Moodie stood trial a second time since the Appellant Divison had effectively held that the first trial was a nullity and the accused had thus not been in jeopardy. In the present case the conviction cannot be faulted and the failure of justice relates to sentence only. This being so, there are two possible courses open to this court. The first is to send the
14
matter back to the trial court with instructions concerning the steps to be taken in regard to sentence. The second is to give the appellant the benefit of any possible doubt as to the existence of extenuating circumstances and to pass an appropriate sentence on the assumption that such circumstances exist. Without actual evidence of any extenuating circumstances this is a somewhat speculative task. However the appellant has been under sentence of death since May of last year and I consider that it would be undesirable to extend the period of uncertainty any further. The crime was such that a sentence of less than fifteen years imprisonment cannot be justified.
The appeal against sentence succeeds and the sentence of the trial court is set aside. A sentence of fifteen years imprisonment is substituted.
Delivered in open court this 31st
day of January, 1994.
W.H.R. SCHREINER Judge of Appeal
I agree.
I agree.
15
A.N.E. AMISSAH
Judge President
T.A. AGUDA
Judge of Appeal
IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Criminal Appeal No., 19 of 1993 (High Court Criminal Trial No. F18 of 1992)
In the matter between:-
PATRICK GABAAKANYE and THE STATE POSTSCRIPT TO JUDGMENT DATED 31ST JANUARY 1994 The sentence of fifteen years imprisonment is to commence from the 31st March 1991 when the Appellant was taken into custody and to run concurrently with the sentence of ten years imprisonment in respect
of the conviction for robbery
Signed at Lobatse on the 31st January 1994.
A.N.E. AMISSAH, JP
T.A. AGUDA JA
W.H.R. Schreiner JA
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1994/3.html
