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Sethomo v The State (Criminal Appeal No. 58 of 1994 ) [1995] BWCA 14 (30 January 1995)
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1
IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 58 of 1994 High Court Criminal Trial No. 45 of 1993
In the matter of:
OTENG SETHOMO
Appellant
and
THE STATE
Respondent
Mr Attorney C. Dahanayake for the Appellant Mr Attorney B. Morara for the Respondent
REASONS FOR JUDGMENT
Coram:
SCHREINER, J.A. LORD WYLIE, J.A. STEYN, J.A.
LORD WYLIE, J.A.
The appellant was convicted of the offence of murder, contrary to Section 202 of the Penal Code and sentenced to 6 years imprisonment at the High Court at Lobatse on 2 6 October, 1994. He has appealed against both conviction and sentence. Shortly stated the case for the State is that on 3 March, 1992 the accused came to the entrance gate of the B.D.F. camp at Sir Seretse Khama Barracks in the forenoon and told the Senior guard on duty, KEOLETILE (P.W.7) that he had killed his girl friend at KHUDIRI LANDS. On being asked why he had done this he said that there had been a misunderstanding the previous night and the problem was that she was in love with another man. P.W.7 therefore contacted the Gaborone West Police and about half an hour later Sergeant MOLEMOGI (P.W.3) arrived. The accused was in a distressed state and was sobbing, but he led P.W.3, P.W.7
2 and others to the House where they were shortly joined by Sergeant SELEKE (P.W.4) of the C.I.D. branch who took charge. There they found the body of a young woman covered with a blanket, and observed a serious injury over her left eye.
Evidence was led from Dr. MARAMREDDY (P.W.I) who had carried out a post mortem examination. He spoke to his Report (Exhibit Pi), in which reference is made to eleven external injuries. There were numerous abrasions - two on the right arm, two on the left arm, one on the left leg, one on the right thigh and one on
the right leg. There was an abraded contusion on the inner side of the lower lip and a lacerated wound on the inner side of the upper lip, which he said might have been caused by violent kissing, and they were swollen. There was an abrasion on the forehead and wound No.l in the Report, which caused the death, was a lacerated wound 1.5 cm x 0.5 cm x 0.5 cm on the left eye brow, obliquely placed. In further amplification there is recorded a contusion of the scalp 7 cm x 5 cm on the right temporal and parietal bones, horizontally placed. There was no fracture of the skull and death resulted from an acute sub-dural haemorrhage on the left side.
No one actually witnessed any assault by the accused on the deceased and the critical evidence in the case really comes from statements made by the accused himself to several witnesses, including of course P.W.7. None of these statements were challenged in cross-examination. It also comes from the terms of a confession statement, made to a judicial officer, SAMBE ONGADILE (P.W.2). The admissibility of this statement had been challenged and a VOIRE DIRE, or trial within a trial, had taken
3 place, the outcome of which was that the statement was admitted in evidence.
As the learned trial Judge observed in his judgement the only witness who comes near to giving independent evidence of any assault was one SESIRO (P.W.5) who occupied the room next to that occupied by the accused and the deceased. He did not actually witness any assault, but he had been awakened by the deceased running into his room in a state of distress. She was crying and the accused who followed her in, said that he was giving her a beating because he had found her with another man. This was about 10 p.m. Some two hours later, about midnight, P.W.5 again heard screams coming from next door, and this time he got up and went into the room to find out what was going on. The deceased again alleged that the accused was again trying to give her a beating. In the course of the early forenoon another witness, OIKETLILE RADIPOSO (P.W.7) , called in and found that at that time the deceased was sick, lying down, unable to speak and breathing heavily. This was another witness who maintained that the accused confessed to having beaten her up because he had found her with another man. She noticed what she described as a deep wound in the forehead and when she inquired as to how this came about she was told that the deceased had knocked against a door when she was trying to get away. As I have already indicated, none of this evidence was challenged in cross-examination.
When Sergeant Seleke (P.W.4) had cautioned the accused in the police office he had elicited a response which amounted to a confession
and he accordingly arranged for a statement to be taken by the judicial officer (P.W.2) . In this statement he
4
elaborated on the confessions which had already been made and
after explaining how he had been spending the evening with some
relatives, initially in the company of the deceased who left
before him, he returned home sometime after 10 p.m., he went on
to state:
"When I got to the house I knocked but there was no sign of anyone being inside. Suspicious that someone must be in, I broke a plank piece with which I pierced through the key hole forcing the key therein to fall onto the floor. Using the same plank piece I pulled the key out and unlocked the door. Inside I found my wife with another man unknown to me.
The man seized me by the arm while my wife grabbed me by the throat. I managed to break loose, grabbed both of them and asked my wife why she was doing what she did. In anger I hit her on the eye with a fist at which stage the man ran away. I went to fetch a stick (thupa) with which I thrashed her four times on the buttocks. Each time she shouted "why are you killing me," (o mpolaelang) and my response was "for what you did (se o se dirileng) . I further asked her if we could be squabbling if she had not done what she did and again I hit her on the eye with a fist. The blow sent her crawling on her knees towards the bed admitting she was wrong and asking for forgiveness. I enquired as to what she could not get from me which made her fall in love with another man."
The statement concluded with a passage not translated into
English but which when translated read as follows:
"But before she died, I asked her whether that boy is the one she sleeps with and she said yes."
In the course of a carefully presented argument, Mr. DAHANAYAKE
for the appellant submitted that, notwithstanding the repeated
confession that he was responsible for the death of the deceased,
it was possible that he was under a misapprehension that this was
so. He pointed to the fact that, on the medical evidence, there
was no question but that the deceased had had sexual intercourse
before her death. He pointed to the fact that the injuries
sustained on her lips were consistent with violent kissing. In
5 relation to injury No. 10, an abrasion 1 cm in diameter on the innerside of the right thigh in the lower one third, he pointed to the fact that this was consistent with resistance on her part to some sexual advance. Likewise, he submitted that the injury to the left eye was consistent with a fall and coming into violent contact with the wooden bed head. He argued that, notwithstanding the two blows which the accused himself admitted he had struck on her eye, the evidence disclosed at least the possibility that the injury above the left eye brow was an inadvertent injury caused by a fall. The blows to the buttocks with a baton were irrelevant, as no injuries were found on the buttocks.
The learned trial Judge came to the conclusion that whilst the evidence certainly leaves open the possibility there was indeed another man with the deceased, whose presence gave rise to the behaviour of the accused, it was clear that this man did not force himself on the deceased. There was no evidence of any struggle between them. At no time did the accused suggest that this man had either threatened or caused any injury to the deceased and indeed the implication from the final passage in the statement, was that this man was a regular paramour of the deceased. I have no hesitation in agreeing with the learned trial Judge when he stated that "...the suggestion of injuries on the deceased resulting from her association with the other man is pure speculation with no shred of evidence or basic facts from
which this court can credit the suggestion with any feasibility." He reached the conclusion that the injuries of the decease were caused by the assaults of the accused and with that conclusion
6
I respectfully agree. In particular, for the same reasons, I
consider that the contention advanced to the effect that the
critical injury could have been caused inadvertently by a fall
is entirely without substance and it was not even suggested at
any time by the accused himself.
There is however one issue which arises very sharply and
that relates to the question as to whether or not, in the light
of the whole evidence of the case, the appropriate verdict was
one of murder. The issue arises in the context of two entirely
separate questions, each capable of leading to the same result.
The first of these two questions is whether or not malice
aforethought, as defined by the Section 204 (a) of the Penal Code
had been established. Has it been established that the accused
entertained an intention to cause the death of or to do grievous
bodily harm to the deceased? There is a very revealing passage
at the end of the English translation of the confession statement
which reads as follows:
"Lastly, I told the police that I had no intention to kill and it was just my misfortune that I killed her."
Having regard to all the circumstances disclosed in the evidence
I am driven to the view that there is at least a reasonable doubt
that he really appreciated that what he was doing was likely to
cause death or grievous harm. He said in the statement that he
left her in the house the next morning to go to work, having been
told just to do so by the deceased and, having returned to the
house early only because he felt "uncomfortable" he found that
she had died. He was seen by P.W.5 in tears as he made his was
to inform the military police. My conclusion is that the
appropriate verdict in the case would have been a verdict of
7
manslaughter.
The second question arises on the issue of provocation. As
I have already indicated, on the medical evidence, there is no
question but that the deceased had had sexual intercourse before
she died and the accused maintained throughout that he had
actually found her with another man. We were referred to
judicial dicta in a number of cases where, in not dissimilar
circumstances, the appropriate verdict was held to be culpable
homicide.
See STATE v. MOMOTI (2) 1974-75 BLR 92.
REX v. BLOCKLAND 1946 AD940 per DAVIS A.J.A.
R. v. LEONARD HOLMES 1946 (1) All.E.R. 524 at p525
R. v. HERCULES 1954 (3) SALR 832 per VAN DEEN HEELVER, DJ
On the basis of the dicta in these authorities Counsel for the
appellant urged the Court to quash the conviction for murder and
substitute a conviction for manslaughter. In my view there was
force in Counsel's submissions on this aspect of the case and on
this ground also I would substitute a conviction for
manslaughter. I would add that Counsel for the State conceded
that such would be the appropriate verdict in the case.
The appropriate sentence for such a conviction in the circumstances of the case would, in my opinion, be a sentence of 3 years imprisonment, and I would substitute this sentence for the sentence of 6 years imprisonment imposed by the Court a quo on 28 October, 1994. As the appellant had been in custody since 6
March, 1992 the result is that, with remission, the appellant has in fact served the sentence now imposed and he was accordingly entitled to be released from custody forthwith.
For these reasons the appeal succeeds. The conviction and sentence are set aside and a conviction of manslaughter and 3
K
8 years imprisonment substituted therefor.
DELIVERED AT THE COURT OF APPEAL, LOBATSE, THIS 30TH DAY OF JANUARY, 1995.
LORD WYLIE JUDGE OF APPEAL
I agree
W.H.R. SCHREINER JUDGE OF APPEAL
I agree
J.H. STEYN JUDGE OF APPEAL
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