SAFLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Botswana: Court of Appeal

You are here:  SAFLII >> Databases >> Botswana: Court of Appeal >> 1995 >> [1995] BWCA 2

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Kalimukwa v The State (Criminal Appeal No. 22 of 1994) [1995] BWCA 2; [1995] B.L.R. 425 (CA) (17 January 1995)

PDF of original document.PDF of original document

.RTF of original document

1
IN THE COURT OF APPEAL OF BOTSWANA HELD IN LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 22 OF 1994
IN THE MATTER OF:
KATUKULA KALIMUKWA       APPELLANT
VS
THE STATE        RESPONDENT
MR. ATTORNEY E.W.F. LUKE FOR THE APPELLANT MR. ATTORNEY L.T. MOTHUSI FOR THE RESPONDENT
JUDGMENT
CORAM: A.N.E. AMISSAH JP J.H. STEYN JA N. WYLIE JA
STEYN JA.
It is common cause that Appellant shot and killed the two
deceased named in the indictment. There are before us only two issues that need to be decided. Firstly, can he be held legally liable for his conduct? (His defence was that he committed the two killings whilst in a state of automatism.) Secondly it was conceded by the State that a procedural irregularity occurred in regard to the circumstances in which Appellant came to be sentenced. (He had been sentenced to two terms of life imprisonment) . This being the case this Court was obliged, having heard submissions in mitigation of sentence to assess an

2
appropriate penalty.
Mr. Luke who appeared on behalf of the Appellant was constrained to inform us that he did not feel that he could argue the defence of automatism raised in the Court below. However, the Appellant would not accept Counsel's advice to abandon his case on the merits, as it were, and requested leave to present this aspect of the matter personally. Although this was a most unusual procedure, we decided to permit him to do so.
His evidence in the Court below was that after the termination of his relationship with his girl-friend (deceased 1) he was subjected to an ongoing campaign of harassment by her and her relations. Appellant was a policeman. A relation of his girl friend was one of his superiors. Appellant was brought before a disciplinary enquiry in regard to his alleged improper conduct towards the deceased. Other incidents of harassment by deceased 1 and her family over a considerable period of time were detailed by him in his diary which was presented to the Court a quo.
Apart therefore from the distress which the Appellant

3 suffered pursuant to the ending of their relationship
compounded by the fact that she had taken another lover - his
diary is eloquent testimony of someone who was obsessed with the
belief that he was being unfairly persecuted. It would perhaps
paint the picture of what Appellant believed he was being
subjected to best, if I were to cite verbatim his heads of
argument presented to us in support of his contention that he was
driven insane (in the lay sense of the word) by his unrequited
passion for the deceased and the threat to his professional
career allegedly posed by her conduct and the manner in which her
complaints were being dealt with by his superiors. The heads
read as follows:

"The appellant entrusted some documents headlined "Complaints by Cst Kalimukwa" (Pgll5). In these documents appellant complained of some persecutions subjected to him and these troubles continued unabated even though appellant pleaded to the persecutors to stop inhumanly treating him. The complaints in short are as follows:
(a)     
On the 13-11-92 appellant was charged for a disciplinary charge of Discreditable Conduct and this was an unfair charge.
(b)     
Boisterous comments were uttered by both ASP Raakolele that appellant should be disciplinary charged be severely delt (sic) with and culminating in appellant's dismissal from the force. (Pg35) And S/I Marape who uttered some words some as interpreted on record. (Pg 71)
(c)     
The appellant expressed these as dangerous for him and that the incrimination might continue against the
(a)     

4
appellant. (pgll7).
(d)     
On the 14th November, 1992 the appellant resumed duty at 06.00 hrs and later on went into the village on patrol, driving and alone.
(e)     
Whilst on patrol appellant met Dl, stopped, greeted Dl, but she didn't answer. Appellant went on with his duties.
(f)     
Still on patrol appellant met Dl again but never stopped. And never met Dl again until appellant knocked off duty at 14.000 hrs.
(g)     
On the 16th November, 1992 Monday appellant went to the charge office enroute to the hospital. Then S/I Marape (D2's Uncle) called appellant into his office. He told appellant that he should solve the matter with Dl. then appellant explained to him the dangerous words against appellant he used on Friday (13-11-92). The appellant was punished for saying so.
(h) The same day the 16-11-92 at 1700 hours Dl came to the Charge Office and reported that on Saturday (14-11-92) appellant wanted to knock her down with a vehicle he was driving and a case was opened against appellant (Discreditable Conduct, disciplinary Charge). Appellant was asked nothing and allowed to comment nothing. On this date appellant realised that he is and will still be victimised. (pgll9)
(i) On the 17th November, 1992 appellant went to the Charge office. Whilst in the station Registry office with another constable. Two ladies came. They wanted to see another constable and appellant guided them there. Later whilst in the same office S/I Marape called appellant and asked him why did he kiss the other lady. Appellant denied ever doing so.
(j) S/I Marape said he is going to take action against the appellant. He ordered appellant just to remain in the offices until the lady came. The lady came after one constable was sent to call her. Then the appellant was released from office detention. The charge was unsuccessful because the lady denied ever appellant trying too kiss her. He tried to convince her but she refused.
(k) On the 18-11-92 appellant was on night duty. At 0400 hours appellant colleagues came back from patrol. Constable Monna came in first and passed a friendly greeting and I replied. Appellant then rested hands and head on the table. Shift in charge Sgt Sebina came in and asked why I was sleeping. I told him I was not sleeping. He told est Monna to write a statement that he found me sleeping to enable him to

5
Charge me, Cst Monna wrote and said appellant was not sleeping, (pg 125).
(1) On several occasions appellant was subjected to disciplinary charges and punishments by S/I Marape. And when ever Dl or D2 made an allegation against appellant action was taken against appellant without finding how true it was. The station commanding just remained silent nor did he bring the two parties together and solve the problems as this is the normal procedure (pg 12*).
(m) Appellant time and again reported these maltreatment to his immediate superior officers but was advised to keep cool and calm. The harassment continue unabated. Then appellant said he was writing a complaint as to how he was being illtreated (pg 127).
The troubles came both on and off duty (pg 33) . When harassment continued the punishment grew day by day (pg 36). Appellant wrote a letter to Dl on the 28th November 1992 to help solve these prosecutions and a verbal reply came warning appellant that more is to come in that appellant will end up losing his job in the force (pg 134) ."
It must not be assumed that because I cite these passages
and refer to the diary that they are necessarily a truthful or
reliable version of the facts. However, they are relevant in
assessing the degree of distress Appellant was experiencing as
well as evidence of his belief that he was being subjected to a
campaign of persecution. It is clear to me that at the time he
committed these offences he was a tortured soul, racked by grief
and deeply disturbed by the events taking place.
This is however in no way proof that when he acted as he
did, he did so in a state of automatism. But it does lay the

6 foundation - if buttressed by acceptable testimony - that he may
have been under such severe stress when he acted as he did, that
it is conceivable that such an unusual defence may have some
credibility.

The State did call a psychiatrist who testified that Appellant was normal both at the time of the examination and at the time of the commission of the crimes. No psychiatric evidence was tendered on behalf of the defence and the Appellant had to rely on his own evidence and such supporting testimony as could be elicited from the State witnesses.
Appellant in his argument launched a determined and detailed attack on the evidence of the psychiatrist Dr. Mambwe (PW3). This attack was not without some merit. There are indeed significant differences in the viva voce evidence of the witness and the report which he completed at the time of his examination. Thus e.g. he records in his report that Appellant informed him "that on the night of 29/11/92 he shot the deceased from her bedroom window while she was sleeping and then went and shot her lover at his home." When he gave evidence some 13 months later

7 he said "but he did not mention he shot her (Dl) from a window."
He subsequently explained this discrepancy by saying that : "He indicated the shooting at Deceased was through the bedroom window." The witness also contradicted himself during his evidence by saying in examination in chief that he thought Appellant told him "he used a rifle to kill the two." In reexamination he resiled from this recollection by saying: "He did mention that he went carrying a weapon but did not tell me he used the weapon to kill."
The expert evidence of the psychiatrist was of importance in two respects. First of all he expressed the firm opinion that the Appellant "knew what he was doing and knew that what he was doing was wrong". He also affirmed that in his view Appellant "remembered everything but did not want to discuss it."
Secondly, his report clearly indicates that Appellant did remember some of the events. This is not only in contradiction of Appellant's evidence, but also gainsays the very essence of Appellant's defence, i.e. that he was in a state of automatism and as such had no recollection of anything that happened.

8 It is clear from a reading of the judgment of the Court a
quo that it accepted the evidence of PW3 (the psychiatrist) and
that it rejected the evidence of the Appellant "that he had a
black-out or was unconscious for a period of time during which
he did not know what he was doing".
After careful reconsideration of the evidence as a whole, I am satisfied that the trial Court was right in making this finding. The deviations and contradictions in PW3's evidence, although significant are not of such a nature that they justify the rejection of his testimony. Certainly the Appellant's evidence is so improbable as to be unworthy of credence.
His attempt to rely on some of the evidence elicited in cross-examination to buttress his case, also fail to persuade me that his defence can be sustained. The fact e.g. that one of those in the house in which deceased (2) lived expressed the view that Appellant acted "like a madman" and that his conduct was such that "one could think he was mad" is not support for the version deposed to by Appellant.
I am prepared to accept that when Appellant acted he did so

9 in a state of extreme distress. I am also prepared to evaluate
his conduct in hunting down the two deceased on an acceptance of
the fact that he believed that he was being unjustly harassed and
that he committed the offences while in a state of acute anxiety.
These are, however, considerations which on the facts of this
case bear upon punishment, not guilt.

The appeal against the convictions cannot be sustained and is dismissed.
I come to deal with the question of sentence.
I referred at the commencement of this judgment to the fact that a procedural irregularity had occurred when sentence was passed. The facts in this regard are the following: After all the evidence was in and the Court had convicted the Appellant on both charges of murder, the learned Judge called upon Counsel to address him on the issue as to whether extenuating circumstances existed or not. It is clear that Counsel confined himself to submissions on this issue only. The Court adjourned to consider its decision, found that extenuating circumstances were present and without giving Counsel any opportunity to address it, passed

10 a double life sentence on the Appellant.
It would not necessarily be improper for a Court to telescope the two - phase enquiry into extenuation and the determination of penalty into a single process. However, it can only do so in cases where it would be appropriate and certainly never without advising Counsel that it intended to do so and affording him or her an opportunity to apply his or her mind to both issues and lead evidence and/or address the Court on both matters. Clearly, a failure to give Counsel or an accused an opportunity to place evidence before the Court or to address it in mitigation of sentence is a serious irregularity which would as a rule vitiate the sentencing process.
It follows that the sentences have to be set aside. With the concurrence of Counsel this Court therefore proceeded to deal with the question of sentence afresh and afforded both the defence and the State an opportunity to place evidence before us and to advance submissions as to what appropriate sentences would be. Counsel elected to confine themselves to argument only.
Mr. Luke for Appellant stressed the following factors: He

11 pointed to the fact that the appellant was hardly out of his
teens when he committed these crimes. He was a first offender,
found himself in a highly stressful situation, away from family
and friends. He was deeply hurt by the termination of his
relationship with his girl-friend, and, as I pointed out earlier
in this judgment, believed himself to have been unjustly treated
by his superiors in regard to complaints made against him by
deceased 1. He was in a state of acute anxiety when he embarked
upon his fateful mission to kill both the deceased persons.
There are however also several aggravating features present
in this case. Appellant was a police officer who by virtue of
his position and his training is obliged to protect the public
against those who commit crimes of violence. He broke into the
armoury to acquire a deadly weapon, an A.K. 47 rifle. He has
killed two innocent people and fired indiscriminately at several
others. His offences were of such a serious nature, that had he
not been in the state of anxiety and stress both the Court a quo
and this Court found him to be in, the death penalty may well
have been the only appropriate sentence.

12 On a review of all the facts we conclude that a very lengthy

period of imprisonment is the appropriate sentence to impose upon
him. We have however decided against the imposition of life
imprisonment. We do so principally because we believe that
Appellant is not a person who is beyond redemption and that he
is capable of rehabilitation. Moreover it is unlikely that he
will ever again be precipitated into a situation of the acute
stress which obtained at this immature juncture in his life.
The sentence we impose is one of 20 years imprisonment on each Count. The sentences are to run concurrently and are to commence running from the date of Appellants arrest and initial incarceration - i.e. the 29th of November 1992.
During the hearing of the appeal, the Appellant informed us that he was suffering from bouts of depression and that the social worker had been able to secure some medication for him.
Appellant's grossly excessive behaviour as demonstrated by the facts of this case, his persecution complex and his inability to absorb and deal with stress could well be symptomatic of some underlying disorder or manic depressive condition. We would

13 request the prison authorities to have him examined and to ensure
that he receives such treatment as the medical assessment may-indicate as appropriate.
In the result, the appeal against the convictions of murder fails and the convictions are confirmed. The appeal against the sentences imposed is upheld. The sentences of life imprisonment are both set aside. In place therefor the Appellant is sentenced to 20 years imprisonment on each Count. The sentences are to run concurrently and are to come into operation on the 29th of November 1992. DELIVERED IN OPEN COURT AT LOBATSE THIS 11thDAY OF JULY 1995
J.H. STEYN JA

I AGREE
A.N.E. AMISSAH JP


I AGREE
N. WYLIE JA

IN THE COURT OF APPEAL OF BOTSWANA

Criminal Appeal No. 22 of 1994 High Court Criminal Case No. F44 of 1993
In the matter of:
KATIKULA KALIMUKWA       Appellant
and
THE STATE        Respondent
Mr Attorney S.S. Mlaudzi for the Appellant Mr Attorney L.T. Mothusi for the Respondent
RULING
Coram:
T.A. AGUDA J.A. W.H.R. SCHREINER J.A. LORD W.L.K. COWIE J.A.
T.A. AGUDA.J.A.
In this case the Attorney for the appellant had argued the appeal as regards conviction and as regards to extenuating circumstances. In the middle of his argument as regards to mitigating factors, the Appellant expressed a desire to have consultations with his Attorney, for that reason we had to grant a short adj ournment.
At resumption, Mr Mlaudzi informed this Court that the Appellant told him that he had lost confidence in the manner in which he was handling the appeal. The Appellant confirmed this to us. Then Mr Mlaudzi sought leave to withdraw from further representing the Appellant. We granted him the leave. The Appellant then informed us that he would like a postponement to the next session so that he would brief another counsel of his own choice. This being a capital offence, we have decided that, perhaps, the end of justice would be better met if we grant

application and permit him to engage a new counsel when the case
is to be heard next. We have also given him leave to prepare any
arguments he may wish to proffer by himself or through his new
counsel on all aspects of the appeal.
We must remark that we have done this in view of the
particular circumstances of this case. Therefore, we do not hold
that as a general principle such a course of action should be a
other practice either in the High Court or in the Courts. The appeal
is postponed to next session and leave is granted to the
Appellant to prepare all arguments that he is to proffer in
respect of all aspects of the appeal.
The Appellant has informed us that the Prison authorities
have not permitted him to make use of his law books in the
preparation of his appeal. We do urge the Prison authorities in
the interest of justice to afford the Appellant every possible
opportunity for him to prepare his defence himself or through
counsel of his choice.
DELIVERED AT THE COURT OF APPEAL, LOBATSE, THIS 17 TH DAY OF JANUARY, 1995.
T.A. AGUDA JUDGE OF APPEAL

I agree
I agree

W.H.R. SCHREINER JUDGE OF APPEAL
LORD W.L.K. COWIE JUDGE OF APPEAL

SAFLII: | Terms of Use | Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1995/2.html