Mbisi v The State (Criminal Appeal No. 29 of 1994 ) [1995] BWCA 8 (30 January 1995)

Counsel for the Appellant only argued one point against the Appellant's conviction. He submitted that the learned Judge a quo had erred in holding that the prosecution had overcome the burden of proof resting on it, and that he should have held that there was a reasonable doubt about the Appellant's guilt. In particular he argued that there was a reasonable doubt about whether the deceased met his death on 30th September, 1992 and since that was the date which was specified in the charge, by failing to prove that matter beyond reasonable doubt, the case against the Appellant as presented by the State must necessarily fail.

I do not propose going into the points made by Counsel for the Appellant in support of this submission, in the first place, because there is no merit in it, but in the second place, because there is in my opinion a stronger ground for holding that this conviction was unsatisfactory and unsafe and should be quashed. While this latter ground was not argued by Counsel for the Appellant, it is in my opinion, necessary in a case of this seriousness for the Court to take cognizance of it ex proprio motu. in the interests of justice.

It must be borne in mind, as the learned judge said, that the evidence against the Appellant in this case was circumstantial, and that such evidence is often more compellable than eye witness evidence, but where the case depends on circumstantial evidence, it must be examined with care to see that it supports the essential parts of the case.

In my opinion, in the present case there is insufficient evidence to establish one of these essential matters and accordingly the State has not overcome the burden of proof. In particular, and following on the concession which was very properly made by Counsel for the Respondent, that the shoe prints which were found beside the body of the deceased and by implication on the track, leading from the high way were not proved to be those of the Appellant, there is insufficient evidence, either direct or circumstantial to the effect that the Appellant was ever in the company of the deceased on the day in question.

3 as were made by the learned Judge a quo. I am bound to say that it is not easy to extract from the judgment what findings were made by the learned Judge since his approach to this case seems to have been to analyse the evidence and then convict because he did not believe the Appellant's alibi. However, in so far as it is possible to do so, I shall set out the findings in fact which the learned Judge seems to have made, and which I consider are relevant to this appeal. They are as follows:-

The deceased was sent to buy some tea from the Appellant's shop about 7:30 a.m. on 30/09/92. He was given P2.00 by his father for this purpose and he left home on his father's bicycle. He was bare-footed and was wearing short grey trousers, a blue shirt and a "track suit top" with a yellow colour at the neck.

Between 7 and 8 a.m. on 30th September, 1992 the Appellant was given a lift from Ramokgwebana railway siding to the point where the dirt track leading to the Appellant's home joins the main highway. There is no evidence what time the Appellant arrived there, but the driver of the vehicle, in which the Appellant was travelling put it between 7 and 8 a.m. More importantly he said that he passed a boy on a bicycle who was travelling in the same direction as he was, before he dropped the Appellant off. The boy was wearing a green bluish shirt. At a later stage in his evidence this witness said that he saw the boy on his correct side. He applied his brakes and slowed down to allow the boy to go to the right. He did not look back to see if the boy cycled back to his correct side.

4 in fact about these events, but by inference he must have decided that having regard to the evidence of timings, there was at least the opportunity for the deceased and the appellant to have met at the junction and walked up the dirt track together. He may have decided this because he found that there were bicycle tyre tracks, foot prints and shoe prints leading up the dirt track to the gate of a field which was situated on the way to the Appellant's home. The tyre tracks stopped at the gate of the field, but the foot prints and the shoe prints continued into the field to the point where the deceased's body was found in the early morning of 1st October, 1992. The learned Judge a quo appears to have accepted the evidence of the tyre tracks and foot and shoe prints, as disclosed and spoken to by the Police Officer who drew the sketch and prepared the key to it which are exhibit "C". However, he appears to have gone further and found that the shoe prints on the dirt track and in particular at the point where the deceased's body was found were made by the Appellant, thus putting him in close association with the body of the deceased. As I have already stated, however, Counsel for the Respondent, as I understood him, conceded that it was not proved that the shoe prints were made by the Appellant's shoe and so one of the crucial pieces of circumstantial evidence placing the Appellant at the scene of the crime and in close association with the deceased has disappeared.

Even if I am wrong in saying that Counsel for the Respondent made that concession, the evidence allegedly connecting the shoe print with the Appellant was so unsatisfactory as to be devoid of any weight. A police man simply measured the length of the

5 shoe print and the Appellant's shoe and said that they were the same length. On the other hand, the shoe print showed no sign of a tread on the sole whereas the Appellant said that his shoe had a tread. Accordingly, while it could be said that the evidence of the shoe print was an adminicle of evidence, it does not, in my opinion, carry any weight in the absence of expert testimony.

There are also other grounds for doubting whether the Appellant and the deceased were ever in each other's company on the morning of 30th September, 1992. In the first place, there is the obvious one that no one saw them together at any time and it would appear from the evidence of the driver who gave the Appellant the lift, that the Appellant must have got to the junction where he was dropped off before the deceased did, because the driver said that he passed a small boy on a bicycle wearing a green bluish shirt. That could have been the deceased, but there was no apparent reason for the Appellant to wait for the deceased to arrive on his bicycle at the junction, before proceeding homewards and so, it takes the prosecution no further.

In all these circumstances, but, in particular, because the shoe print can no longer be said to have been made by the Appellant, I am of the opinion that there was insufficient evidence in this case to prove beyond reasonable doubt that the Appellant was ever in the company of the deceased that morning, and, in particular, that he was in the field with him where he was killed. That would be enough to dispose of this appeal, but there was other evidence and findings by the learned Judge a quo

In particular the learned Judge believed the evidence of the deceased's sister that at 4 p.m. on 30th September, 1992, the Appellant told her and another witness, that he had seen the deceased that day,- that the deceased had come to his shop and stolen P458.000. The deceased's sister also said that the Appellant had told them that the boy had stolen the money when he, the Appellant, was at his house repairing a lock. She said that the Appellant then added that he was at his house when he saw the boy getting out of the shop and that he had taken the bicycle which the boy was riding and had locked it inside his own house.

This evidence might suggest that the Appellant had seen the deceased that day and had a motive for killing him, but it should be noted that the learned Judge did not make a finding that what the Appellant had told the sister had actually happened, but only that the Appellant had told her these things. Be that as it may however, whatever the Appellant may have said it did not put him in close association with the deceased since the Appellant's house is "76 paces" from his shop and if the deceased was there, he ran away and there is no evidence that the Appellant ever caught him. But in any event, there was other evidence in the case which suggested that the Appellant had not seen the deceased that day and was not aware of who had stolen his money.

7 effect that around 9 a.m. the Appellant emerged from the bush and accused Andrew Gombgwa and his friend of stealing his money. The learned Judge categorised this behaviour of the Appellant as "flying a kite", by which I take him to mean, that having killed the deceased he was then trying to lay a false trail by pretending he did not know about what he had done, and, in particular, that the deceased had stolen his money. In my opinion, the suggestion that the Appellant was "flying a kite" is not justified, particularly since in her first statement the deceased's sister had said that when the Appellant came to her father's house at 4 p.m. she said that on his arrival the Appellant asked her who had been sent to his shop on her father's bicycle and that she had told him that it had been her brother. In other words, according to that statement the Appellant did not know who had stolen the money from his shop and was asking for information from the deceased's sister. This was in accordance with the Appellant's own evidence which was to the effect that although he knew that money had been stolen from his shop, he did not know who had done it, except that it was the person who had left the bicycle behind.

Unfortunately the learned judge did not deal with this discrepancy in the deceased's sister's evidence except to say that it was minor. I do not agree. In my opinion this was an important matter and the Judge did not give proper weight to the discrepancy particularly in the light of the importance of the prosecution proving that the Appellant had had a close association with the deceased on the morning in question, and the Appellant's own evidence, that he had never seen the deceased

Botswana: Court of Appeal

Mbisi v The State (Criminal Appeal No. 29 of 1994 ) [1995] BWCA 8 (30 January 1995)