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Molale v The State (Criminal Appeal No. 56 of 1994 ) [1995] BWCA 9; [1995] B.L.R. 146 (CA) (30 January 1995)
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1
IN THE COURT OF APPEAL OF BOTSWANA
Criminal Appeal No. 56 of 1994 High Court Criminal Trial No. F54 of 1993
In the matter of:
JOSEPH MAGONGO MOLALE
Appellant
and
THE STATE
Respondent
Mr Attorney D. Morotsi for the Appellant Mr Attorney L. Ncgoncgo for the Respondent
JUDGMENT
Coram:
T.A. AGUDA, J.A. LORD WYLIE, J.A. J.H. STEYN, J.A. P.H. TEBBUTT, J.A. LORD W.L.K. COWIE, J.A.
T.A. AGUDA,J.A.
The appellant and the deceased though unmarried cohabited together as husband and wife in a single room rented by the deceased in Francistown. She had a daughter, Thembi Boy Godi, who was attending school and residing with her uncle. After writing her Junior Secondary School examination in November, 1992, she went to visit her paternal grandparents in a village called Tutume. On return from Tutume on December 2, 1992, she went to live with her mother. As the appellant was sharing the single room with the deceased, Thembi then went to sleep with the landlord's daughter, Nnyana. This she did until the night of December 6, 1992, when Nnyana left for Tutume village. Thereafter the accused, the deceased and Thembi started to sleep in the same room. The deceased and Thembi would sleep on the bed
2 whilst the accused slept on a blanket on the floor. Then on the night of December 9, 1992, after they had all gone to bed and put out the lights, without any apparent reason, the appellant went out into the compound, got hold of a very heavy axe, with which he inflicted fatal blows on the deceased. The appellant's evidence in Court was to the effect that there had been a quarrel between him and the deceased, and that the deceased had assaulted
him. However, the witness Thembi who was present through out told the court that she did not notice that there was any such quarrel or scuffle between the appellant and the deceased. For purposes of this appeal I do not consider it necessary to go into greater details of the evidence tendered before the Court a quo.
It is however, necessary to note that in the reserved judgment which he delivered on November 16, 1994, the learned trial Judge held that he could not believe the story of the appellant to the effect that the deceased held his testacies and that it was Thembi who went out to fetch the axe. The learned trial judge could not befaulted when he held that it was the deceased who went out to fetch the axe and that it was the wounds which the appellant inflicted on the deceased that caused her death. Over and above that, the learned trial Judge thereafter gave full consideration to all possible defences that were possibly open to the appellant. The learned trial Judge found that none availed the appellant. He accordingly found the appellant guilty of murder.
When the attention of defence Counsel was called to the question as to extenuating circumstances, Counsel told the Court that the appellant was not going to give evidence. Counsel
3
thereafter addressed the Court as follows:
"In my earlier address I pleaded with the Court to hold that there was a scuffle between the accused and the deceased before the deceased was wounded. That has been found against the accused. I also suggested that accused had no intention to kill. That again has been over-ruled. My Lord had therefore over-ruled us on any factors of extenuating circumstances."
In reply Counsel for the State told the Court:
"No extenuating circumstances have been successfully canvassed so as to reduce the moral blameworthiness of the accused."
In his Ruling on the issue the learned trial Judge held as
follows:
"I have listened to learned attorney for the accused and as the facts upon which the defence relied to show extenuating circumstances have not found favour with me there is nothing before me by way of extenuating circumstances. The accused must therefore be sentenced in accordance with Section 203 (1) of the Penal Code under which he is to suffer death."
He thereafter pronounced the death sentence on the appellant.
On November 23, 1994, the appellant from prison gave notice of appeal against both his conviction and the sentence of death pronounced upon him. However, Counsel representing him, in the papers subsequently filed, abandoned the appeal against conviction. I have myself carefully examined the evidence led in the Court a quo and I have come to the firm conclusion that the conviction for murder entered against the appellant by the trial Court cannot in any way be faulted. However, In my view the question of the sentence of death entered against the appellant needs re-consideration in this appeal.
It would appear that Mr. Morotsi for the appellant was
prepared to address us only on two points namely:
1. That the method of execution of the appellant ordered by the learned Judge as prescribed by Section 203 (2)
4
of the Penal Code is anachronistic, antediluvian and barbaric.
2. That the death penalty is inhuman and degrading and unconstitutional as ultra vires Sections 3 (a) and 4 (1) of the Constitution.
Despite this, however, when this case was called before this
Court, we, bearing in mind the evidence that is available on the
record, had to ask Counsel representing the State, Mr. Ncgoncgo,
to satisfy us if the learned trial Judge properly adjudicated
upon the question of extenuating circumstances as he was bound
to have done. Although Mr. Ncgoncgo was not able to say
categorically that the trial Judge properly so adjudicated, he
nevertheless thought that no sufficient evidence of extenuating
circumstances existed.
The law in this regard is laid down by Section 203(3) of the
Penal Code which says:
"In deciding whether or not there are any extenuating circumstances the Court shall take into consideration the standards of behaviour of an ordinary person of the class of the community to which the convicted person belongs."
It seems obvious from a proper reading of this provision that the
law has not put any onus on an accused to prove even on balance
of probabilities that extenuating circumstances exist in his
case. In my view the trial Court has the responsibility and
indeed the duty of examining such evidence as has been placed
before it both during the trial before conviction as well as
after conviction and specially tendered for purposes of the
application of this provision. Indeed a trial Court is obliged
to take into consideration the standard of behaviour of an
ordinary person of the class of the community to which the
convicted person belongs.
5
Bearing all this in mind, I have no doubt that both the attitudes of both Counsel in the Court a quo, and of the trial Judge rejecting the evidence given by the accused which was contradictory to that of the prosecution,could not have been the end of the matter of extenuating circumstances, nor indeed the fact that the trial Judge had held that the appellant had the intention to kill the deceased. It must be remembered that for conviction on a charge of murder there must be proved "malice aforethought" which in our law does not mean only a pre-conceived intention to kill but also includes an intention to do grievous harm to the person killed, or to some other person (Section 204 of the Penal Code). The attitude of both Counsel and the trial Judge seemed to overlook the fact that indeed it is only after an accused has been convicted of killing with malice aforethought that the question of considering the question of extenuation can even arise. In other words it would appear that both the Counsel
for the appellant and the learned trial Judge were content to look only at the legal culpability without giving any consideration whatsoever to the moral blameworthiness of the appellant contrary to the well established principle which has been followed by this Court. See the case of Mosarwana v. The State [1985] BLR 258.
I therefore have no hesitation in holding that the learned trial Judge was in error in his adjudication on the question of whether or not extenuating circumstances existed in this case. Now what do we have in this case? Here there is the evidence that the appellant and the deceased had lived together as husband and wife for nearly 10 months in the room rented by the deceased.
6 It is clear from Exhibit A that the appellant is the father of seven children born to him by his late wife, whilst the deceased had six children of her own. There was evidence of a quarrel -indeed of a fracas - between himself and the deceased earlier that night. The trial Judge said he was unable to accept this evidence. On the other hand, there was no evidence that the appellant had a pre-conceived plan to kill the deceased; and on the finding of the learned trial Judge there would appear to have been no reason whatsoever as to why the appellant would wish to kill the deceased. The finding by the trial Judge was based entirely upon his acceptance of the evidence of Thembi Godi, PW2, daughter of the deceased. On my examination of the huge axe in Court it became quite clear to me that the witness was a witness whose credibility was obviously in doubt, for it seems to me that she could not be speaking the truth when she told the Court that she did not notice the axe, and that there was no fracas between
the appellant and the deceased. In both his statement to the police and in his evidence in Court the appellant spoke of a fracas. This evidence would appear to be more highly probable than that of PW2, and to be the only reasonable explanation of the appellant's conduct. That fracas would have contributed to inflame the appellant's passion and to cause him to go "berserk" and to assault the deceased, and having realised that he had killed, he made at least two attempts to commit suicide. Having failed to take his own life he then went to report himself to the police. It would appear to me that the subsequent conduct of the appellant is that of someone in a highly disturbed state of mind. I am of the view that had the learned trial Judge put into
consideration the evidence of the fracas and all the other evidence in the case, he would have found that extenuating circumstances exist in this case.
It appears to me quite clear therefore that the appeal against sentence must succeed. I therefore quash the sentence of death passed upon the appellant. Needless to say that following upon the conclusion to which I have arrived as regards the sentence of death, it is no longer necessary for me to consider either of the two grounds filed by Mr. Morotsi as regards capital punishment. As regards an appropriate sentence, bearing in mind all the facts and circumstances of this case, I am of the view that a sentence of 15 years imprisonment will meet the ends of justice in this case, and I therefore impose that sentence.
DELIVERED AT THE COURT OF APPEAL, LOBATSE, THIS 30th DAY OF JANUARY, 1995.
T. A. AGUDA JUDGE OF APPEAL
I agree
LORD WYLIE JUDGE OF APPEAL
I agree
J.H. STEYN JUDGE OF APPEAL
I agree
'
P.H. TEBBUTT JUDGE OF APPEAL
I agree
LORD W.L.K. COWIE JUDGE OF APPEAL
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