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Kgaodi v The State (Criminal Appeal No. 31/95) [1996] BWCA 18; [1996] B.L.R. 23 (CA) (2 February 1996)
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1
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL
CRIMINAL APPEAL NO. 31/95
In the matter between:
JOSEPH KGAODI
- Appellant
vs.
THE STATE
- Respondent
Edward Fashole-Luke II for the Appellant Ms. A. Matroos for the Respondent
JUDGMENT
CORAM: AmiS3ah J.P.
Schreiner J.A. Cowie J.A.
AMISSAH J.P.:
This is a tragic case. The appellant, Joseph Kgaodi, was
convicted of murder. The deceased, Thato Kgaodi, was his own nephew who was six years old when he was killed. Until about three weeks before the incident, the appellant lived in the same house as the deceased in Kanye. That house was the family house occupied by the appellant's mother, Dineo Kgaodi, his sister, Kelebogile Kgaodi, and nephews and nieces who were children of the appellant's sisters. Appellant, who had previously lived with the rest of the family, had moved from this house back to
2 an older house some distance away in Kanye where the family lived
while his father was alive. The father died in 1984, and it was
thereafter that the family moved to their present house.
Although the appellant had moved back to the old house he
continued to come daily to the house where the family lived to
take his meals.
On the 11th day of January 1993 the appellant went as usual to the mother's house to eat. He stayed until late afternoon. That night when the household retired to bed, Dineo, appellant's mother, slept in one hut with Kelebogile's child; the four other children, Kelebogile's younger sister and Kelebogile herself slept in another hut. In the middle of the night, appellant returned to his mother's house and visited the hut where Kelebogile was sleeping with his younger sister, his nephews and nieces. Kelebogile was lying on the bed with two of the children
while the others lay on the floor. Among the children on the floor was the deceased. Kelebogile woke up when she felt the presence of an intruder in the room. But as it turned out to be
r *
3 the appellant, she expressed no concern. Appellant asked for a
cigarette. Kelebogile directed him to where he could find one.
In her drowsy state, Kelebogile was not conscious of the
appellant smoking the cigarette. But she recalls that the
appellant asked which of the children were with her in bed and
which were the ones on the floor. From the inquiries, it appears
as if the appellant was interested in finding out which of the
children was Thato. Kelebogile pointed out Thato. Thereafter,
she must have fallen back to sleep.
In the morning when Kelebogile woke up, she found that the appellant was no more in the hut. She also found that the deceased had disappeared. A search began for the missing child. The appellant was informed that the deceased had disappeared and his advice was sought as to what to do. Appellant, who had appeared surprised when informed of the disappearance of the deceased, advised that a report be made to the police. This was done.
4 The appellant's mother, Dineo, who was a spiritual healer,
suggested, in the course of the search, that the aid of one
Dibeela, a traditional doctor, be sought. Apparently, the belief
was that a traditional doctor could by consulting with a shirt
belonging to the deceased tell what had happened to him. The
consultation which took place at about 1 p.m. yielded nothing.
The mother of the deceased who lived at Gaborone arrived in Kanye that afternoon. After her arrival Dineo suggested that the deceased's shirt should be taken to another spiritual healer by name Botshana. Although she herself was a spiritual healer, she said she had suggested consultation with the other spiritual healer because it was against the practice of spiritual healers for her to consult the shirt of her own child. To the suggestion that the other spiritual healer be consulted, the appellant was, without offering any reasons, opposed. The appellant, however, proposed that he and her two sisters, Barbara, mother of the deceased, and Kelebogile should go up the hill where his mother performed her spiritual rights. He gave
5 no reasons for this suggestion either. This must have been an
odd suggestion at this stage because the search party had gone
up that hill earlier on in the day without finding what they were
looking for.
Nevertheless, they went up the hill again and the appellant led them to a white bucket which was normally kept in the old house where appellant stayed. The bucket had bloodstains which later scientific analysis found to be human blood stains of Group A, a group to which both the appellant and deceased belonged. There were shoe prints around. But before following the shoe prints, Dineo sent for the police. The appellant then led the party to a point about 200 metres away. He called the others to come and see. When they got to him they found the appellant standing by two rocks. In between these rocks was the dead body of the deceased in a sack. It was at that point that the police arrived on the scene. The police found that the deceased had been stabbed and that the left forearm of his body had been amputated at the elbow and the wrist. The forearm itself was not in the
6 sack. But the hand amputated from that forearm had been left in
the sack.
Later that evening, after Assistant Superintendent Tawana had taken over the investigation, he and Sub-Inspector Balani visited the appellant at the old home where he stayed. They found the appellant there alone. Upon their identifying themselves as police officers making enquiries into the death of the deceased, appellant showed them a forearm which was lying by an old sofa in his room.
At the trial, an exchange of question and answer between Ms. Matroos, Counsel for the State and Assistant Superintendent Tawana related what ensued after this discovery. I shall refer to that exchange in greater detail later. The forearm was taken to the hospital and there examination found that it matched the deceased's body. The police also collected a big brown knife from the appellant's home. This was identified by the pathologist as capable of inflicting the single stab wound in the
7 side of the neck and the chest from which the deceased died.
The appellant was arrested and was later taken to a specialist psychiatrist for examination. The psychiatrist's report which was admitted
in evidence at the trial gave as his opinion that the appellant -
"was mentally well at the time of the offence. He briefly experienced a feeling of sadness associated with aches and pains following
his arrest. He had no symptoms of mental illness on review a month later. He is now fit to plead in a court of law as he understands
the charge and is able to follow the court proceedings, to instruct a legal representative and to challenge witnesses."
This opinion is unequivocal on the two points of importance,
namely, that the appellant was mentally well at the time of the
offence and that he was fit to plead.
In the course of the investigations, the appellant made a confession statement before a Judicial Officer which was received in evidence
without objection.
The appellant was convicted by the High Court presided over by
8 Lesetedi, Ag.J. and sentenced to death. He has appealed to this
Court and before us, his Counsel, Mr. Fashole-Luke has taken
three points of objection to the conviction and sentence.
Briefly stated, they are that the learned judge -
(a)
erred in admitting and relying on an inadmissible confession statement made by the appellant to the police;
(b)
failed adequately or at all to consider properly the evidence of insanity that was on the record; and
(c)
failed, with regard to sentence, adequately to discuss the issue of extenuating circumstances which vitiated the sentence of death.
The admission of the confession complained of is not in respect of the confession statement taken by the Judicial Officer, which too was admitted without objection; it was the confession made to the police officer immediately upon the discovery of the amputated
arm of the deceased. The manner of admission of that confession at the trial comes out in the following question and
9 answer between Ms. Matroos, Counsel for the State, and Assistant
Superintendent Tawana (PW4).
Matroos: Did the accused person tell you who the forearm belonged to?
PW4: He said he murdered his nephew.
Matroos: Did he tell you the name?
PW4: The name was Thato Kgaodi.
Matroos: How did the accused person appear to you that day?
PW4: He just behaved normally.
Matroos: Did he tell you what he was going to do with that forearm?
PW4: He said he was going to run a business of chibuku and that he was going to use that forearm and some herbs mix them together
so that the people could come in large number to buy a chibuku." This was followed by some questions and answers on whether the
10 appellant showed the police officer any herbs which the appellant
was going to mix, where these herbs were, and the identification
of the herbs. Counsel then continued her examination-in-chief
with these questions:
"Matroos: Did he tell you where he murdered the deceased?
PW4: Yes, he told us.
Matroos: Where did he say he murdered the deceased?
PW4: On top of the hill but I have forgotten the name of the hill." It was at this point that the learned trial judge intervened. The record shows that he said:
"Court: Ms. Matroos I am worried about the word murdered. I think I am the one who is to determine whether he murdered the deceased." The reception of this evidence was most unfortunate. I realise that the confession came out not as a result of a question directed to extracting it from the witness, but, as it were, by accident and appeared to have been totally expected. However, once the police officer stated that the appellant admitted that
11 he had murdered his nephew, I think it was the duty of the
learned Counsel for the State to immediately stop pursuing the
matter further, and the duty of the Court to immediately expunge
that answer from the record. Admission of that evidence was a
serious contravention of the law.
Section 22 8 (1) of the Criminal Procedure and Evidence Act (Cap.08:02) (including provisos (i) and (ii) but excluding proviso (iii) which is not material to the point at issue) provides that -
"228 (1) Any confession of the commission of any offence shall, if such confession is proved by competent evidence to have been
made by any person accused of such offence (whether before or after apprehension and whether on a judicial examination or after commitment
and whether reduced into writing or not), be admissible in evidence against such person:
Provided that -
(i) such confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having
been unduly influenced thereto.
(ii) if such confession is shown to have been made to a policeman/ it shall not be admissible in evidence under this section
12
unless it was confirmed and reduced to writing in the presence of a magistrate or any justice who is not a member of the Botswana Police Force."
The provision prohibits the admission in evidence of confessions
made to police officers simpliciter. It does not matter whether
the confession to the police officer is voluntary or not. The
object of the prohibition is obviously to avoid arguments at
trials over whether confessions to police officers were freely
made, without inducement, physical or otherwise. As is well
known, allegations are often made of police officers torturing
or beating up suspects and accused persons or using other
unlawful means in order to obtain statements which advance the
investigation or prosecution of the cases. Some of these
allegations have been found to be true by the Courts although the
majority of them often turn out to be unfounded. True or not,
it is in the interest of justice that these charges, or
opportunities for them to be made, should be minimised, if not
altogether eliminated. The prohibition discourages the police
from using force or other forms of inducement in extracting
confessions to bolster up their cases, because if the court would
13 not admit any confessions obtained by them at all, there should
be no need for them to use unlawful methods to obtain them. But
in order not to exclude genuine confessions made by accused
persons even if made to police officers altogether, the law
permits the admission of such confessions if "confirmed and
reduced to writing in the presence of a magistrate or any justice
who is not a member of the Botswana Police Force."
The requirement that the confession be confirmed and reduced to writing in the presence of a magistrate or justice has led to the salutary practice of police officers taking accused persons who wish to make incriminating statements to a judicial officer to make the statement to him. The courts have laid down rules, even though not strictly required by the terms of the statutory provision, that the statement be taken in the absence of a police officer, and that the judicial officer taking the statement should first establish by closely questioning the suspect or accused person whether the statement he or she is to make is voluntary and not improperly induced by the application of
14 physical force or threat or promise of material gain to the
person: See Joseph Mokwena v. The State Cr.App. No.2/90 Court
of Appeal decision given on 3 July 1990 (unreported); Mosotho
Masina and Another v. The State [1983] B.L.R. 237. If these
rules are not satisfied, the statement taken before the judicial
officer himself may be rejected by the trial court.
At the time Assistant Superintendent Tawana blurted out to the Court that the appellant told him that he, the appellant, had murdered his nephew, there was indeed a statement made by the appellant to a judicial officer, which had already been admitted without objection, in which the appellant admitted to stabbing. But that statement, though subsequent in time, was not in the same terms as the evidence as given by the police officer. It cannot, therefore, be argued that what the police officer said in his evidence had in the terms of the Criminal Procedure and Evidence Act been confirmed and reduced to writing in the presence of a judicial officer. Consequently, it cannot be argued that what the police officer was saying was just a mere
15 repetition of the confession given to the judicial officer which
had been admitted in evidence without objection. Without doubt,
the evidence of the police officer was inadmissible as contrary
to Section 22 8 (1) of the Criminal Procedure and Evidence Act,
and should have formed no part of the trial record.
Instead, learned Counsel continued asking details as to the name of the deceased whom the appellant had admitted to murdering and where he said he had murdered the deceased. The learned judge, when moved to intervene, only protested his dislike for Counsel's use of the word "murder", as the decision on murder vel non was a matter not for Counsel or the witness but for himself. But that cannot be sufficient in this case. The infringement complained of is not only a question of Counsel treading on a judge's preserve. It is a case of a blatant infringement of a statute protecting the rights of an accused person. An infringement of this nature normally has fatal consequences on a prosecution. If the confession wrongly admitted is the only evidence on which the case is built, or if the other evidence in
16 the case is open to doubt or is otherwise inadequate to prove the
guilt of the accused beyond reasonable doubt, the appellant must
be acquitted. Further, if the admission is so prejudicial as to
substantial affect the court's assessment of the case against the
accused, the conviction would be quashed.
Excluding the evidence of Assistant Superintendent Tawana on the confession, as indeed I think we must, all the evidence in this case points to the appellant being the person who killed the deceased: his unusual visit to the hut in the new house where the deceased was sleeping in the middle of the night; the fact that he was the last person to have seen the deceased alive; the discovery near the scene of the crime of the white bucket kept in the house where he alone lived with blood stains which must have come from the deceased; the discovery of the amputated arm of the deceased in his room where in the old house the next day,-the free and voluntary statement which he made to the judicial officer admitting that he stabbed the deceased with a knife next to the left shoulder; his confession to the commission of the
17 crime to the specialist psychiatrist; his own evidence in court,
all pointed to the appellant as the person who killed the
deceased. In the circumstances, though I agree that the
admission of the confession statement of the appellant made to
the police officer was unlawful, I am bound to conclude that no
substantial miscarriage of justice was occasioned by it.
The second submission made on behalf of the appellant was on insanity and automatism. No evidence of killing as a result of automatism was pointed out to us by Counsel in his submissions, and I do not think there was any such evidence on the record. Learned counsel did not press his argument on automatism. I will, therefore, say no more about it. As regards the submission on insanity, it was argued that the learned judge a quo failed adequately or at all to consider properly the evidence of insanity on the record; that although the appellant was under a duty to prove insanity on the balance of probabilities, such proof did not necessarily have to come from the himself; and that there was some evidence of insanity on the record given by the
18 psychiatrist specialist called by the prosecution which the judge
failed to consider.
The submission that the evidence on record showed on the balance of probabilities, that the appellant was insane was pieced together from various strands. In the appellant's confession statement to the judicial officer which was properly admitted in evidence, he said amongst other things, "J was possessed by the Devil." There was also evidence that when he moved from the new family house where all of them were living to the old house he had told his mother, Dineo, that he was moving to the old house because he had heard his late father's voice asking him to go and light the lamp at the old house. It will be recalled that the father had died in 1984. According to the mother, the appellant moved to the old house "three weeks and three days", before
the killing of the child on 11 January 1993. Dineo also said in evidence that the old house was bewitched, and that during the period before the killing the appellant appeared quiet, although the effect of the phenomena testified to, namely, the hearing of
19 his father's voice and living in a house which was bewitched on
the mental state of the appellant was never clearly related to
the killing of the child. But above all reliance was placed on
the evidence of Dr. Paul Sidandi, the specialist psychiatrist
given at the trial.
I mentioned earlier that the specialist psychiatrist, after examining the appellant, formed the opinion that the appellant was mentally well at the time of the offence and that he was fit to plead. He repeated this opinion, which had previously been stated in his report to the police, in the witness box. Cross-examination by the defence included some general questions regarding the state of the human mind asked by Counsel, who was not incidentally the same Counsel who appeared before us. To these he gave an opinion couched in general terms. It is from such answers, and answers to questions by the Court, that the appellant's case of insanity was constructed. Thus the specialist psychiatrist (PW5) concluded his evidence under cross-examination on this note:
20
"Gaselabone:
Dr. Sidandi, the accused persons
mother has given evidence that starting
1993 the accused has been saying he is
getting messages from his dad is there
any value to that in relation to the
voices?
PW5:
Yes that information could indicate to me
that perhaps during the time that the accused said he was hearing voices must mean that he was hearing voices."
This was followed by an exchange between the judge and Counsel which does not appear to me material and which I, therefore, omit. The cross-examination continued:
Gaselabone: And lets come to the point that because he
has given you an information personally that
at times he cannot understand what the
voices could be saying. Is there any
21
PW5:
Well people who are mentally ill do hear
voices but people who are not mentally ill
do hear imaginary voices but also people who
are well also hear voices before they fall
asleep or when they are just about to wake
up and turn out to be dreams so the only
voices of
are those in the waking
state.
Gaselabone: Dr. Sidandi so when the accused person told
you that sometimes he could hear someone talking but he cannot understand you examined the circumstances in which he hears such voices?
PW5:
I elicited this from his information and
because he told me that he can hear someone and what he says I would attach great sense to it.
The court at this point asked Counsel a question by way of
22 clarification which is unnecessary to reproduce. Then Counsel
continued:
Gaselabone: Dr. Sidandi is there any existing
possibility for one to lose reasoning temporarily not all the time?
PW5:
Yes it is possible.
This concluded the cross-examination. The judge then asked the following questions:
Court: Doctor, let me ask you a question. If a man
says to you he hears voices during the day, how do you go about trying to ascertain his sanity or the problem of what he says?
PW5:
A person who is hallucinating can volunteer
to say that he is hearing voices but when I am examining the person if I see that the person actually appears to be hallucinating, that is talking to imaginary people then this is when I would attach great significance to the circumstances under
23 which he hears the voice as he said he did
not understand what he said.
Court: Can hallucinations only be temporary?
PW5:
Hallucinations tend to be persistent and
they can last for a number of weeks unless
they are treated.
Court: Would a person who hallucinates recall what
transpired after he did something during the
hallucinating state?
PW5:
Well my Lord it depends on how mentally
disturbed the person was. If a person was
terribly disturbed he would not be able to
recall, but if he was not so disturbed he
would be able to recall.
Counsel for the State was then asked whether she had any
questions arising from the answers to the Court's questions. She
did, and concluded with the following question and answer:
Matroos: Would you say he suffered from any hallucinations
at the time that you examined him?
24
PW5 :
My impression was that he did not suffer from any
hallucinations because he had not been treated by
the time I saw him and after he had, he would
still have been under those hallucinations."
The doctor had examined the appellant just over a month after the
incident and a review was carried out a further month later. The
question of insanity and in particular of hallucinations was
explored both in a general manner and with respect to the
appellant.
In my view, the evidence of the specialist
psychiatrist remained throughout that the appellant was not
suffering from insanity in terms of the Penal Code. The
provision in the Code on insanity which we must bear in mind is
Section 11. It states that:
"11. A person is not criminally responsible for an act or omission if at any time of doing the act or making the omission he
is through any disease affecting his mind incapable of understanding what he was doing, or of knowing that he ought not to do the
act or to make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by
disease, if such disease does not in fact produce upon his mind one or other of the effects mentioned above in reference to that
act or omission."
25 Whatever answers are elicited in the examination of doctors,
whether specialised in psychiatry or not, by hypothetical or
general questions about the human mind and human conduct, the
answers have to be related to the accused and, further, to the
particular act or omission he is charged with having committed.
The weight of the evidence given by the specialist psychiatrist
was firm that the appellant was mentally well at the time of the
offence and that in his opinion the appellant was not suffering
from insanity in terms of the law. That was not diminished by
the questioning on hallucinations, or by his cross-examination
in general. The other evidence which Counsel drew our attention
to as indicating a state of mind which might, if properly
considered by the trial judge, have resulted in the acceptance
by the court that the appellant was suffering from insanity at
the time of the offence does not impress me as relating to the
act with which he was charged. That the appellant said in his
properly admitted confession that he was possessed by the devil
does not, to my mind, satisfy that test. It is the sort of
remark which could be made by people who do not want to, or
26 cannot satisfactorily, explain an act they are charged with
doing. In the circumstances I would also dismiss the appellant's
objection to his conviction based on insanity. That means the
appeal against conviction fails and should be dismissed.
The last ground of appeal causes me some concern. It is that the learned judge failed adequately to discuss the issue of extenuating circumstances. The law on extenuating circumstances and the procedure to be followed in determining whether or not they exist in a murder case has presently been comprehensively dealt with exhaustively by this Court in David Kelaletswe and Others v. The State Cr.App. 25/94 - judgment delivered on 30 January 1995 (""-reported) . I have nothing further to add at this stage except to emphasise that trial judges should ensure that they take a note of the submissions made in extenuation or mitigation, as this is helpful on appeal.
One aspect of the objection to the sentence imposed is that the judge relied on the inadmissible confession which found its way
27 into the record as an aggravating circumstance, which, as a
consequence, resulted in his conclusion on the balance of
extenuating circumstances against aggravating circumstances,
tilting against the presence of aggravating circumstances. It
cannot be disputed that the learned judge relied on that
evidence. At the end of his judgment convicting the appellant
he said:
"I find that the accused killed the deceased
for ritual purposes and I accept PW4's
evidence that the accused stated that the
purpose of the killing was to enhance his
business."
PW4 was Assistant Superintendent Tawana. The finding, which was not necessary to the conviction, that the killing was for ritual purposes was based mainly on the evidence of this witness. But as we have seen, that evidence should not have been admitted, and should have been expunged from the record. Yet it formed part of the record which was considered by the judge on sentence.
28 There was no additional evidence given on extenuation after
conviction. But apparently submissions were made by Counsel
which do not appear on the record. That omission, as I have
said, should be rectified in future cases. The learned judge's
pronouncement on his consideration of the matters on extenuation
included a remark to the effect that the appellant's motive for
the killing, no doubt a reference to use of the amputated arm to
enhance his business, was evil, and born out of greed.
The finding that the motive for the killing was evil and born out of greed must have come from nowhere else than from the judge's finding of motive in his judgment on conviction and that in turn was based on the improperly admitted confession of the police officer.
It may be that after a conviction, evidence and matters for the Court's consideration to determine whether the sentence of death should be imposed need not follow the strict legal rules of admissibility of evidence, and that the police officer's
29 inadmissible evidence could have been admitted at that stage.
I am unable to say because that is a matter which needs argument,
which having regard to the proceedings followed after the
conviction, did not arise in this case. The point, therefore,
remains that the police officer's evidence should not have been
available for the consideration of the judge, was considered by
him in his assessment of extenuating circumstances. That, to my
mind, is a serious error. No doubt, appellant had committed a
most revolting murder. But I am unable to say whether he would
have imposed the death penalty if there had not been the
improperly admitted evidence of the police officer on motive
before him.
I am forced to the conclusion that the judge's consideration was flawed as he did rely on this evidence. It seems to me from the authorities on the subject that the underlying philosophy in murder convictions is that for the death penalty to apply a convicted person must not only be guilty according to the law but on the available evidence and information must also be morally
30 blameworthy for the commission of the offence. This demonstrates
the distinction drawn by the Penal Code between proof of murder,
which requires no proof of moral guilt, and the imposition of the
death penalty which does. In the absence of the evidence
supporting the motive relied on by the learned judge I feel it
unsafe to confirm the sentence he imposed.
I would, therefore, dismiss the appeal on conviction, but allow the appeal on sentence, quash the sentence of death and substitute for it a sentence of life imprisonment. Having regard to the horrible nature of the murder, we recommend that the appellant should not be considered for parole until he has served a minimum of 15 years imprisonment. Delivered in open court this 2ND day of FEBRUARY 1996.
A.N.E. AMISSAH JUDGE PRESIDENT
W.H.I. SCHREINER JUDGE OF APPEAL
31
I agree.
W.I.K. COWIE JUDGE OF APPEAL
V
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