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Olesitse v The State (Criminal Appeal No. 36/94 ) [1995] BWCA 13; [1995] B.L.R. 128 (CA) (30 January 1995)
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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CRIMINAL APPEAL NO 3 6/94 HIGH COURT CRIMINAL TRIAL NO. 55/93
In the matter between:
SEBANYATSE OLESITSE
Appellant
and
THE STATE
Respondent
Mr. E. Fashole-Luke II for the Appellant Mr. L.I. Dambe for the Respondent
REASONS FOR JUDGMENT
CORAM: AMISSAH J.P.
TEBBUTT J.A.
COWIE
J.A.
AMISSAH J.P.
On the 20th of January we allowed the appeal of the appellant, quashed his conviction for manslaughter and set aside his sentence, but reserved the reasons for our judgment. We now give those reasons.
The appellant was tried on a charge for murder before the High Court presided over by Barrington-Jones J. The substance of the charge was that on or about the 16th of August, 1992 at
2 or near a place near Mosi lands in the Southern Administrative
District, he murdered one Sebina Dingalo Oreeng. The deceased
was the wife of the appellant.
The case made by the prosecution was that the appellant and
deceased lived together. Witnesses who were neighbours gave
evidence to the effect that on the 16th August, 1992 they visited
the home of the deceased. They found both appellant and deceased
in. The deceased came out of the house followed by the
appellant. The deceased was wearing only a panty and she was
crying. One of the visitors asked the appellant whether he had
been beating the deceased. To this question, the appellant said
the questioner should ask the deceased. The deceased answered
that she had been beaten because of the pastor, one Nkatlolang,
with whom the appellant claimed she was in love. The witness at
the time noticed what could have been the result of a beating on
the face of the deceased as her left eye was swollen. The
witnesses did not notice any other marks of beating on the
deceased's body. The deceased later got dressed. The appellant
and deceased were going to feed the goats. The visitors then
left. At that time the appellant and deceased appeared
reconciled. On the following day, the body of the deceased was
seen by the witnesses in the bush somewhere outside the home of
the appellant and deceased. The deceased was once more only in
3 her panty.
The police Inspector who arrested the appellant said that on the day after the discovery of the deceased's body, he went to Musi and when he confronted the appellant with the information he had received, the appellant admitted that he had assaulted the deceased with a thing he described as a pump connection. The appellant produced this pump connection which was in turn produced in evidence. It was put to the Inspector that the appellant made no such admission; and the pump connection produced was not given by the appellant to the Inspector, but taken by the Inspector from a bag in the appel1ant s' room.
The medical evidence was that the deceased died from shock due to multiple injuries. The pathologist listed no less than 22 injuries consisting of abrasions and contusions on all parts of the deceased's body. There was some evidence that the deceased had said that the appellant had used his fists and kicks in assaulting the deceased. There was also some evidence that the appellant was at some stage carrying a stick, the size of which was not clear, it being likened by one witness to an electric wire and by the other to a fluorescent tube. In cross-examination the Pathologist said that the multiple injuries could have been inflicted by a blunt instrument. He was not shown the
4
pump connection which was admitted as evidence nor asked whether
such an instrument could have caused the injuries described by him. Nor was he shown the stick or a stick like the one alleged by the two neighbours who came visiting the home of the deceased which they claimed the appellant was then carrying, nor asked about the possibility of such a stick producing the results he, the pathologist, had found on the deceased's body.
The appellant made a statement to a judicial officer which was admitted in evidence without objection. In the statement he admitted assaulting the deceased on the day the two women neighbours visited his home. He had assaulted the deceased because he felt hurt by the confession that she had been having an affair with her pastor boyfriend. According to the statement, the appellant and deceased were reconciled when the deceased later on in the evening went out. When she did not return after some time, the appellant went out looking for her but could not find her so he returned home for the night. In the morning he continued looking for her, checking at different places to find whether she was there without success. The statement narrates in detail the frantic efforts that he made to find his wife, until he was told that the police had come to his house, and that the wife had been found dead in the bush.
Apparently, the body of the deceased was found some twenty
5 four hours after she was last seen by the women neighbours who
gave evidence.
The appellant was acquitted of the charge of murder at the trial, but found guilty of manslaughter on account of the provocation which preceded the offence.
The appellant appealed to this court against his conviction
on the grounds that:
"(i) The verdict was unreasonable, and cannot be supported having regard to the evidence;
(ii) The learned judge failed adequately to
consider the nature of the appellant's defence;
(iii) By reason of the foregoing, and in all
circumstances of the case, the conviction was unsafe and unsatisfactory."
Against sentence the appellant's ground of appeal was that:
"The learned judge failed to backdate the sentence of imprisonment to commence on the date when the appellant first went into custody."
Two points were argued before us on conviction. The first was
that the learned judge erred in admitting the confession
statement without first conducting a trial within a trial and/or
a voir dire to determine the voluntariness of the confession
statement. We found no merit in this submission and learned
Counsel refrained from pressing it. The statement in question
was admitted without objection from the appellants' Counsel at
the trial. There was no suggestion then that the statement
6
tendered was not made voluntarily. The statement was regularly
taken by a judicial officer as required by Section 231 of the
Criminal Procedure and Evidence Act. The judicial officer gave
evidence on the manner in which the statement was taken by him,
detailing all the questions he asked the appellant to ensure that
the statement was voluntary. It was clear from everything he
said in the course of his evidence that the statement was
voluntarily made. The occasion for advancing the submission make
by Counsel on the appeal depended on one solitary sentence which
runs counter to the tenor of the whole evidence of the judicial
officer which went unchallenged. The record of appeal shows that
there was this sentence in the evidence of the judicial officer
which said,
"I was given an explanation that the statement was not taken voluntarily."
Undoubtedly, having regard to the rest of the evidence of the
judicial officer, and the fact that the statement was admitted
in evidence without objection, this sentence was the result of
a typographical error, with the word "not" having been inserted
by mistake.
As no objection was taken at the time the evidence was
taken, the question of the trial judge having a trial within a
trial, or the voir dire, to determine the voluntariness or
otherwise of the statement did not arise. Of course, it was open
7 to a defence after a voir dire has been held and the statement
admitted to cross-examine the witnesses for the prosecution on
the voluntariness of the statement again with a view to
diminishing the weight to be attached to it. But this was not
the course adopted in this case.
The submission, as we said in the course of argument was without merit, and we so hold now.
The second point argued by Counsel for the appellant had greater force. It was on the question of the causal connection between the admission of the appellant that he had assaulted the deceased with a stick and the discovery of the body of the deceased in the bush some twenty four hours later with the injuries found by the Pathologist. It was in this connection that it was submitted on behalf of the appellant that while there was some evidence on record as to the cause of death, such evidence was inconclusive, deficient and not supportive of the conclusion that the death of the deceased was attributable to either an act or omission on the part of the appellant.
At the time when the appellant made the admission of assault to the two women who were called to give evidence for the prosecution, the deceased had nothing on except her panty, yet the only injury seen on her was the injury near the eye. The rest of the multiple injuries found on the deceased by the
8
Pathologist were not seen. They would have been evident,
according to the submission, if those injuries had been in existence then. The weapon which the appellant admitted using in his assault on the deceased was a stick, but the Pathologist was not asked whether a stick of that nature answered the description of the blunt instrument which the Pathologist concluded to have been used on the deceased. Neither was the pump connection - the instrument claimed by the police to have been used by the appellant in the assault on the deceased - shown to the Pathologist to find out whether it answered to the description. The next thing was the discovery of the body of the deceased some twenty four hours later with the multiple injuries.
Learned Counsel for the appellant submitted that anything could have happened to the deceased after she left home on the 16th August and the discovery of the body the next day. It would be unsafe for the Court to speculate on what happened. According to his submission, the causal link between the assault and the injuries found on the body of the deceased was broken, and that left the case of the prosecution unproven beyond reasonable doubt.
Mrs. Dambe for the respondent handsomely conceded that the submission for the appellant on the issue of causation was, on the evidence on record, irresistible. We agreed. We
accordingly allowed the appeal, quashed the conviction for manslaughter and set aside the sentence of eight years imprisonment, two years of which were conditionally suspended, which was, imposed by the trial judge.
PRONOUNCED IN OPEN COURT THIS 30TH DAY OF JANUARY, 1995
A. N. E. AMISSAH JUDGE PRESIDENT
I agree
P. H. TEBBUTT JUDGE OF APPEAL
I agree
LORD W.L.K. COWIE JUDGE OF APPEAL
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