Tshabang v The State (Criminal Appeal No. 48 of 1994 ) [1995] BWCA 16; [1995] B.L.R. 132 (CA) (30 January 1995)

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Tshabang v The State (Criminal Appeal No. 48 of 1994 ) [1995] BWCA 16; [1995] B.L.R. 132 (CA) (30 January 1995)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Criminal Appeal No. 48 of 1994 High Court Criminal Trial No. 60 of 1992
In the matter between:
OBUSITSWE TSHABANG APPELLANT
AND
THE STATE RESPONDENT
Mr. Kgalemang for the Appellant Mr. L. Ncqoncqo for the Respondent
JUDGMENT
CORAM: A.N.E. Amissah, J.P. Lord Wylie, J.A. J.H. Steyn, J.A.
AMISSAH. J.P.

The appellant was charged with five counts before Cotran J. in the High Court in Francistown. The first count of the indictment charged the appellant with murder. The second count charged the appellant with stealing a motor vehicle. The third count charged that he fraudulently imitated a vehicle number plate. The fourth count charged that he obtained petrol by false pretences and finally he was charged in the fifth count with burial and disposal of a dead body without authority. The appellant was convicted of the charges of murder and stealing of the vehicle. With regard to the conviction for murder, the learned Judge declared himself unable to find extenuating circumstances and

•

sentenced the appellant to death. After the sentence had been passed on 22nd August, 1994, the appellant was brought back on 23rd August to the trial Court in respect of the conviction for stealing the day before. The Judge then proceeded to sentence the appellant for that offence to three years imprisonment.

The appellant appealed against the conviction and sentence. As the facts on the murder conviction were so intertwined with the facts of the stealing of a car, no need arises to state the evidence on the two convictions separately.

The facts which were accepted by the learned trial Judge were that the deceased and his car a Nissan Skyline bearing the registration number BD 4269 D disappeared from Mahalapye on the evening of Tuesday the 27th November, 1990 as darkness fell at 8 p.m. He was last seen driving the car which also had in it an unidentified male person, who when greeted by another passenger, did not answer the greeting. The body of the deceased was recovered from a well on the following Wednesday afternoon, that is on 28th November, by the police under the command of one Sergeant Chipalaza in the Thokolo area, some distance away from the cattle post where the appellant lived. The dead body had been seen in the well earlier that morning by Kholomo Megwe. In the learned Judge's view, it was obvious that the deceased had been murdered, but the possibility that he had been killed by more than one person could not be entirely ruled out.

According to the State's evidence, the appellant arrived at the home of one Shimane Ratekeri at about midnight of the 27th/28th November driving a car which was eventually proved to be the

Nissan Skyline owned by the deceased. As the deceased's car was not found at the well where his body was found the learned Judge found that the apparent motive for the murder was the theft of the car. On the morning of Thursday 29th November, 1990 the police arrived at the Tshabang family home at Mookametsana cattle post and found Ditshotlego, the appellant's elder brother and Tshabang, the appellant's father there, but the appellant was out watering animals at a well close-by. The deceased's Skyline was in the Tshabang yard although it bore a different pair of registration plates. Instead of the number BD 4269 D, the car, at the time it was found in the Tshabang yard, bore the number BD 4332 D. That number was false. The road licence disc affixed to the Skyline windscreen bore the figures "332" as well as the last letter "D". The number plate showing BD 4332 D had obvious signs of tampering.

According to the findings of the learned Judge, the appellant when first seen by the police with his cattle at the well near his father's home, admitted possession of the Skyline parked in his father's yard. He had the keys with which the car was later opened and the engine started. On being questioned by the police the appellant gave a number of false answers. One such question was how he had come by the car. To that question he explained that he had borrowed the Skyline from David Thwabi. I pause here to recall that David Thwabi was the name of the deceased. At the time when the appellant gave this explanation, he did not know that the body of the deceased had been discovered. The trial Judge took the view that the explanation given by the appellant

to the police was false. Further, on being asked by the Sergeant about the place where he had borrowed the Skyline from Thwabi, the answer the appellant gave was, in Palapye. This, the learned Judge thought was also false, as the car disappeared from Mahalapye and not Palapye on the evening of the 2 7th November. To the question as to the time that the appellant borrowed the Skyline from Thwabi in Palapye, the appellant replied that it was the afternoon of the previous day, that is, Wednesday the 28th November, 1990. By then, of course, the body of the deceased had been pulled out of the well. The learned Judge found that it was after the Sergeant had told the appellant that he was investigating the death of David Thwabi that the appellant mentioned the name of Shimane. Apparently the police arrested Shimane on the 29th November but released him later. If the memory of Shimane is to be preferred, this release was after a day's detention, but if that of the Sergeant is preferred, the release was after two or three days.

The learned Judge found that the only evidence which connects Shimane with the murder was the finding of a cooler bag belonging to the deceased with Shimane, and the fact that Shimane wrote and probably also signed a Barclays Bank cheque on a cheque form belonging to the deceased with which P60.00 worth of petrol was purchased at Machaneng Petrol Filling Station on the 2 8th November. It was not clear to the Judge whether the appellant told the police that Shimane had the cooler bag or it was Shimane himself who had volunteered the information after his arrest. But whichever was the case, he found that Shimane was a tainted witness, in that Shimane was at least an accessory after the fact

to the theft of the car and he was in possession of information given by the appellant that the appellant had killed a person. But the Judge thought Shimane's conduct in this connection was one of a naive rather than a cunning person.

I must here add that according to the medical evidence, the deceased died from haemorrhage due to a gun shot injury to the chest. In the view of the Judge all the other evidence he accepted pointed irresistibly to the guilt of the appellant.

The questions raised by Counsel as arising from the appellant's appeal were set out in his Heads of Argument as:-
"l. Whether it is the appellant who caused the death of the deceased?
2.

Whether the adduced evidence satisfied the standard of proof beyond reasonable doubt or whether the appellant was merely suspected that he was the one who caused the death of the deceased.
3.

Whether the evidence of the accomplice was amp(ly) corroborated to support a finding which the trial Judge arrived at.
4.

Whether evidence of the investigating officer which the court a quo appear (ed) to rely heavily on was sufficient and truthful in all respects.
5.

Whether other possibilities do not exist and as such it could be unsafe to find that it was the appellant who caused the death of the deceased."

All the questions adumbrated by the appellant may be compressed into one comprehensive question namely, whether the appellant was proved by evidence beyond reasonable doubt to have murdered the deceased. All are based on the facts adduced in proof of the charge. No one saw the person who killed the deceased. No one saw any person do any bodily harm to the deceased which could

have led to his death. The case which the prosecution sought to prove was, therefore, based on circumstantial evidence.

In this appeal, the appellant, through his able Counsel, argued that the evidence of important prosecution witnesses could not be safely relied upon. One of the witnesses so attacked was Shimane Ratekeri, the person who was mentioned by the appellant when he was first interviewed by the police. The other witness, whose evidence was attacked by Counsel at the material time, is the Sergeant who first found and arrested the appellant.

It will be recalled that Shimane was the person with whom the deceased's cooler bag was found two days after the disappearance of the deceased, and who admitted to having written the cheque for P60.00 on the deceased's cheque form for petrol bought for the deceased's car. It will also be recalled that the learned Judge found Shimane to be a tainted witness with respect to the charges laid against the appellant. The submission made on behalf of the appellant was that the Judge should have rejected his evidence. But there is no rule that the evidence of an accomplice must be rejected in Botswana by a trial court. On the contrary, the law on accomplice evidence in Botswana makes it possible for a trial court to accept and act on his evidence provided certain conditions are satisfied. That law is partly statutory and partly developed through judicial decisions. Section 240 of the Criminal Procedure and Evidence Act (Cap. 08:02) provides that:-

"Any court which is trying any person on a charge of any offence may convict him of any
6

offence alleged against him in the indictment or summons on the single evidence of any accomplice. Provided that the offence has, by competent evidence, other than the single and unconfirmed evidence of the accomplice, been proved to the satisfaction of such court to have been actually committed."

In a trial where the evidence of an accomplice features, the position is that the fact that the offence charged has been committed must be proved by credible evidence from sources other than the evidence of the accomplice. In a case of murder as this case is, the fact that the deceased has been killed by a person with the intention required by law must be established from evidence other than the evidence of the accomplice. That does not mean that the accomplice cannot give evidence of facts leading to the conclusion that the deceased has been killed by a man with the required intent. But it does mean that when the evidence of the accomplice is totally ignored the court must still be satisfied that the deceased was killed by a man with an intention to kill or to commit an act which the law regards as the necessary intent for proof of a murder charge. That fact having been established without regard to the evidence of the accomplice, the evidence of the accomplice is then looked at to see what further strength it supplies to the prosecution case in identifying the accused as the person who perpetrated the offence. The statutory provision says that if the offence charged is proved by competent evidence aliunde, that is, from sources other than the evidence of the accomplice, the court may convict the accused on the sole evidence of the accomplice.

Obviously if the evidence of the accomplice is needed at all, it is because without it the other evidence establishing the commission of the offence would not by itself be sufficient to prove that the crime was committed by the accused. That is so because if that other evidence could by itself prove the accused guilty of the crime, the evidence of the accomplice would not be presented in support of that proof. Thus, the trial court, if it believes that the evidence of the accomplice is reliable and can be accepted in proving the case against the accused, may convict the accused on the evidence of the accomplice.

Experience has however shown, and the decided cases confirm, that it is dangerous to rely on the evidence of the accomplice without having it confirmed in a material respect. Holmes J.A., in State v. Hlapezula and Others 1965 (4) SA 430 at 440 explains why the evidence of an accomplice is dangerous to act on without confirmation in some material respect. The confirmation is the corroboration which, in spite of the statutory provision cited earlier, the decisions advise the trial court to look for in assessing the credibility and acceptability of the evidence of the accomplice. The trial court in this process, will have arrived at the conclusion, which may be considered provisional, that the evidence of the accomplice is credible. For as stated by Lord Hailsham in P.P.P. v. Kilbourne (1973) AC 729 at page 746:-

"Corroboration is only required ... if the witness requiring corroboration ... is otherwise credible. If his evidence is not credible, a witnesss's testimony should be rejected and the accused acquitted, even if there could be found evidence capable of

being corroboration in other testimony. Corroboration can only be afforded to ... a witness who is otherwise to be believed. If a witness's testimony falls of its inanition the question of his needing . . . corroboration does not arise."

This pronouncement has been accepted and widely applied in common law countries, and in Botswana. See, for example, the decision of this Court in Letela v. The State 1985 BLR 445 and recently at the trial of State v. Lesego Thebe and Others Cr. Tr. 40/1993 (unreported).

The nature of the corroboration required was described by Lord Reading in R v. Baskerville (1916) 2 KB 658 at page 667 as:-

"... evidence in corroboration must be independent testimony which affects the accused by connecting, or tending to connect him, with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only that the defendant committed it ... The nature of the corroboration will necessarily vary according to the circumstances of the offence charged. It would be a high degree dangerous to formulate the kind of evidence which would be regarded as corroboration except to say that corroborative evidence is evidence which shows, or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused."

Again this statement of the law has been widely accepted, and also by our courts - see Batlang Ragono v. The State Cr. App. No. 9 of 1989 (unreported).

In the case before us, in Shimane Ratekeri's evidence, he said amongst other things that the appellant brought the car - which
9

was eventually proved to have been the car of the deceased and which the deceased was last seen alive driving in the evening that the deceased disappeared - to his, Shimane's home in the middle of that night. Shimane said the appellant told him that he had bought the car from a garage at Selibe Phikwe. He gave other evidence which if believed linked the appellant with the murder of the deceased. The learned Judge did find, as we have earlier noted, that Shimane was "a tainted witness" in circumstances which would make him an accomplice within the definition of the term as given in Davies v. P.P.P. (1954) AC 3 78. The Judge clearly appreciated that Shimane's evidence needed to be treated with care because he said in his judgment that: -

"It is necessary that the Court, in the exercise of this caution to look for support and confirmation of Shimane's evidence from a source outside the support and confirmation that it undoubtedly derives from the evidence of the Sergeant, who may have been blinded by his conviction that he has captured the right man who had alone and unassisted . . . murdered (the owner of the Skyline)."

The learned Judge looked for such corroboration. In my view there was ample corroboration. There was the fact that the day after the deceased's car was found at the home of the appellant's father where the appellant lived; that the appellant, though not on the scene at the time when the police came to the appellant's father's house, later produced the key which opened the car; that until the police told the appellant that they were investigating the death of the deceased, David Thwabi, the appellant had given a number of false explanations including the answer that he had

borrowed the car from David Thwabi on a day when the deceased was already dead, and that he borrowed the car at a town quite different from where the deceased lived or had been driving when he was last seen.

Other evidence implicated the appellant in the commission of the offence. Evidence was led that it was the appellant who led the police investigating the offence to the place, approximately one kilometre from his family cattle post, where what appeared to be blood was found on the ground as well as three empty cartridges and a bullet fired from a 9mm pistol. There was evidence of skid marks of tyres near the well where the body was found which agreed with the tyres of the deceased's car which in turn suggests that the body had been brought to the well in the car. It was also the appellant who later on led the police to a place near his home where he produced the two genuine number plates of the car, which were replaced by the false plates the car was displaying at the time of his arrest.

The evidence of the pointing out was admitted under Section 229 (2) of the Criminal Procedure and Evidence Act which provides that: -

"It shall be lawful to admit evidence that anything was pointed out by the person under trial or that any fact or thing was discovered in consequence of information given by such person, notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible against him on such trial."

Of such pointing out, it was said by Hoexter J.A. in R v. Tebetha 1959 (2) SA 337 that:-

"... when a person points out a thing, the pointing out is his act and proves that he has knowledge of some facts relating to that thing."

See also Aguda J.A. in Baitsemang Nkgatoaang v. The State Cr. App. 11 of 1988 (unreported). The appellant could hardly have come to this knowledge unless he was involved in the act of disposing of the deceased's body or acquired this knowledge from a third person, in which case he would give an innocent explanation for it.

The appellant in his defence denied ever seeing the deceased, and said that it was Shimane who asked him to sell the car for a commission. He undertook to do so because he, the appellant, thought he could sell the car to his father. Later when Shimane was arrested, it was Shimane who led the police and himself to the place where the deceased was killed. It was Shimane who pointed at some cartridges, and pointed out the well where the deceased's body was dumped. When the police asked Shimane about the gun which was used in the killing, Shimane said he gave the gun to the appellant, which the appellant denied.

The fact remains that it was the appellant whom the police described as doing the acts attributed by the appellant to Shimane. No sensible reason was given why the police should elect the appellant as the person responsible instead of Shimane. Further, after all the pointings out had been done one of the police officers drew a sketch plan showing the places pointed

out. It was the appellant who signed the plan as the accused and not Shimane. This sketch plan was received in evidence without objection by the defence. Besides, the appellant was defended by experienced Counsel. The defence put forward by the appellant in evidence placing the blame on Shimane was never put to the witness. What was put to, and was denied by, Shimane was that he had found the vehicle abandoned on a road side, and Shimane had driven it to his house and when appellant came to his, Shimane's house, Shimane had asked appellant to sell it for him.

The evidence against the appellant was overwhelming . Shimane's evidence was amply corroborated by evidence from other sources.

Two further points were raised before us on behalf of the appellant. The first was that certain witnesses who could have given relevant evidence were not called and secondly, that as the Sergeant had given false evidence on one important matter, the rest of his evidence should have been treated with caution, but this was not done. Both these matters were canvassed in support of the submission that the case of the prosecution based on circumstantial evidence failed to reach the required standard of proof beyond reasonable doubt. I agree that all material witnesses in a case must be called, or offered to the defence, by the prosecution. In that respect, failure to call the father of the appellant or cousin of Shimane to resolve the issue as to whether they were woken up in the middle of the night of 27th November, 1990 by the appellant driving the Nissan Skyline into their home detracts from the case of prosecution. But looking at the totality of the evidence in this case it seems to me to

be a minor infraction of the duty on the prosecution to prove its case by bringing forward all material witnesses. Neither do I think that it weakened the case made against the appellant in any way.

The criticism of the Sergeant was predicated on the fact that he said in his evidence that he received an anonymous telephone call on the morning of 25th November which led him and his team of policemen to go to the Tshabang home. Much was made of the fact that the Sergeant said the call was anonymous and in cross-examination he admitted that he knew who the caller was. The answers given by the Sergeant in cross-examination, however, showed that he said he did not know who it was at the time the call was made. The Sergeant appeared quite frank during his cross-examination, saying that he did not in any case want to disclose the informer's identity. I do not think this criticism carries any weight.

In the face of the rest of the evidence I do not think that the identity of the person who wrote or signed the cheque by which the P60.00 worth of petrol was obtained was of importance on the charge of murder. It was common cause that Shimane and the appellant were together when the petrol was bought. And in any case, the cheque book was received by the police from the appellant. Thus the failure to call the petrol attendant was of no significance.

It is my view that the appeal against conviction must be dismissed.

The appellant also appeals against his sentence, which in this case was death. The case advanced on behalf of the appellant was that there were extenuating circumstances which were not given sufficient consideration by the trial Judge. Two factors were put forward as extenuating circumstances, that is, the fact that at the time of the commission of the offence the appellant was 21 years old, and the absence of premeditation to the act of murder. Youth is indeed a factor which has been taken into account in the assessment of moral blameworthiness for the offence; so also has the absence of premeditation. We have set out in the case of David Kelaletswe and Others v. The State Cr. App. No. 25/94 - judgment given today - how we think the issue of extenuating circumstances ought to be dealt with. We need not repeat it here. Suffice it to say that in assessing the factors of youth which implies immaturity and impetuosity, and absence of premeditation which negatives a preconceived plan to perpetrate the offence, other factors which bear on the question of extenuation should be put in the scale. From the circumstances of the case it would appear that the motive for the murder was to steal the car of the deceased. It is a killing for pure gain. The instrument chosen for the act namely a pistol, and the extent to which the appellant went to dispose of the body of the of the deceased and to cover his tracks indicate a cold calculation on his part. Such calculation negatives the characteristics of immaturity and impetuosity attached to youth. It would be wrong of us to set up the age of 21 as by itself affording a decisive feature in the determination of extenuating circumstances, because to do so is to set an arbitrary age which

would be impossible to justify in every case. The learned Judge accepted that there was no premeditation although he had found that the motive for the murder was the theft of the car. It is difficult to agree with that proposition in the circumstances of this case. But he nevertheless found that despite the absence of premeditation, there were no such extenuating circumstances to reduce the sentence from death to some other appropriate punishment. We cannot find that he exercised his discretion improperly or that he was wrong in so doing. In the circumstances I do not think that we should disturb the sentence.

The appeal against sentence on the murder conviction should be dismissed. The question of the sentence on the charge of stealing was not argued and, in the circumstances of this case I do not think it necessary to deal with it.

DELIVERED IN OPEN COURT THIS 30TH DAY OF JANUARY, 1995,
A.N.E. "^KIS5A^___ [JUDGE PRESIDENT]
16

I agree
LORD WYLIE [JUDGE OF APPEAL]

I agree
J.H.XQTEYN [JUDGE OF APPEAL]

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