Bogosi v The State (Criminal Appeal No 25 of 1996) [1996] BWCA 38; [1996] B.L.R. 72 (CA) (19 July 1996)

The facts, broadly stated, are these. Appellant and his wife were married on 11 February 1987. They have two children, a girl, Farida, and a boy, Thuto, who was born on 13 June 1990. The marriage was apparently a happy one until 1992 when appellant had an affair with another woman. He said this happened because his wife was refusing him his conjugal rights.

2 been told of his affair by appellant, thereafter steadily deteriorated. On three occasions prior to 24 April 1994 the wife left the matrimonial home to live with her parents but on each occasion the families of appellant and his wife rallied together, the problems were patched up and the wife returned to appellant. The couple were also, it seems,having financial troubles at the time. On 24 April 1994, the wife left appellant again to go to her parents' home taking the children with her. An attempt by appellant to get her to return to him was unsuccessful and a letter from her attorneys told him that they had been instructed by her to institute divorce proceedings. On 10 May 1994 a court order was obtained by her granting her interim custody of the children and she took them from appellant's home to that of her parents on the same day. Mention must also be made of an incident on 8 May 1994 when, according to the wife, appellant tried to ram her car while she was driving it along a road. Appellant denied doing so but the wife reported the incident to her parents. It is against this background that one comes to the events of the evening of 11 May 1994.

On that evening appellant went to his in-law's house at about 7 p.m. I shall set out in more detail the differing versions of the prosecution witnesses and that of appellant as to what happened then in due course. Suffice at this stage to say that during the occurrences the wife's father, one Abdul Rashid Khan, was shot and subsequently died of his wounds and the boy, Thuto, was also shot but survived the shooting. These shootings occurred in Khan's house. It is also common cause that thereafter appellant fired two shots at a BMW motor car belonging to Khan which was standing outside the house.

The State alleged that Khan and Thuto were both shot by appellant. It also alleged that appellant fired a shot at his wife but which did not hit her. It accordingly indicted the appellant before the High Court on five counts (I) murder of Khan; (ii) attempted murder of his wife; (iii) attempted murder of his son, Thuto; (iv) malicious damage to property viz the BMW motor car;

With regard to the other charges, he was convicted by the trial court on the first count, i.e. the murder charge, not of murder but of manslaughter and sentenced to 10 years imprisonment four years of which were conditionally suspended for three years. On the second count he was convicted of attempted murder of his wife and sentenced to four years imprisonment. He was found not guilty and acquitted on the count of attempted murder of the boy, Thutho. Instead, on that count, he was found guilty of unlawfully causing grievous harm but with extenuating circumstances and sentenced to four years imprisonment. On the count of malicious damage to property he was found guilty and sentenced to 18 months imprisonment. All the custodial sentences were ordered to run concurrently with effect from 11 May 1994.

I turn then to consider that appeal. In order to do so it is necessary to analyse in some detail the evidence given by the relevant witnesses at the trial. For the prosecution the main witnesses were appellant's wife, to whom I shall hereafter refer as PW1; her 69 year old grandmother, Glori Ganetsang (PW2); her mother and Khan's wife, Mrs. Gladys Khan (PW3) and the police investigating officer, Detective Sub-Inspector Bernard. It is also germane to mention that Khan died, according to the post-mortem report, of haemorrhage due to a gunshot wound. Thuto suffered a gunshot wound in the left buttock, the bullet exiting through the left groin, from which he recovered after treatment in hospital.

4 Khan's house dressed in a pair of trousers and a wind-cheater or lumber jacket with both his hands in the pockets of the latter. This is not denied by appellant. Sitting in the living room of the house, watching television at the time, were Khan, the deceased, who was wearing a blue shirt over a pair of pyjamas trousers, PW1, PW2 and Thuto. PW3 was in the kitchen doing some cooking. When the deceased saw appellant he asked him what he wanted in his, deceased's, home. According to appellant, the deceased' said to him "what is your problem here." The deceased repeated his question. Appellant asked the deceased what he meant by the question. According to the appellant, the deceased's attitude to him was a hostile one. It is common cause that at that stage the deceased got up from where he was sitting. According to PW1 he walked away from appellant; according to appellant he walked towards a wall-unit in the living room. From here onwards the versions of the appellant and the prosecution witnesses diverge totally.

Before I set out those versions, however, it is necessary to state that in regard to the first count against appellant, PW1, his wife, was not a competent and compellable witness for the prosecution. In terms of section 217 of the Criminal Procedure and Evidence Act (Cap 08:02) on the counts involving her and her son Thuto, she was. It was not, however, competent for her to give evidence against appellant on the first count. The learned trial Judge was fully cognisant of this as is this Court, but her evidence, covering as it does counts two and three, as to what she saw in the house that evening, was receivable by the trial court and can also be looked at by this Court save where it may implicate appellant on the count against which his appeal is now directed viz the first one of manslaughter.

PW1 said that when the deceased stood up she turned towards appellant and saw him pull a gun out of the pocket of his wind-cheater. He took two or three steps backwards and fired a shot in the direction of the wall of the living room opposite her. She ducked in front of the settee on which she was sitting to avoid being hit., There was another crack of the gun. She then ran

5 out of the living room to her mother's bedroom from where she telephoned the police. She heard four more shots, one from the kitchen area and the rest from outside. She heard six shots in all. Appellant then drove away./ When she came out of the bedroom she saw Thuto lying in the corridor by the bedroom door bleeding from the gun shot wound sustained by him. The deceased was hying by the kitchen door bleeding from the right thigh. The deceased, she said, had nothing in his hands when he got up from where he was sitting. She said the deceased had, to her knowledge, never owned a gun.

PW2 also said that the deceased had nothing in his hands as he got up and started walking away. She said that she heard a shot and, as she was frightened, she ran out of the house.She saw appellant holding a gun and firing it. From her hiding place she saw appellant firing at the deceased's car. PW2 said there was no time when the deceased made for appellant.

PW3 said that while in the kitchen she heard two shots. She then saw appellant in the passage with a gun. He fired a third shot into the house and then walked through the back door of uie kitchen and fired again. She then saw the deceased staggering towards the kitchen where he collapsed near the kitchen door, bleeding profusely from the thigh. She heard two more shots from outside the house. All the three witnesses PWl, PW2 and PW3 identified the 9 mm pistol as the gun they had seen in appellant's possession.

The appellant's version of events is as follows. He admitted that he had his hands in the pockets of his wind-cheater when he entered the house as he wanted to keep them warm but denied that he had pulled out the pistol from his pocket. He said that after the deceased stood up, following his questions to appellant about what he wanted in the deceased's house, the deceased went to the wall-unit from where he took out a bag. He opened this bag and pulled out the pistol from it. Appellant said he tried to run away by taking two steps backwards towards the dining room door. The deceased walked towards the dining room door. Appellant said he then dived

6 towards the deceased and tried to wrestle the pistol from him. As he struggled to get possession of it from the deceased, one shot was fired by the deceased. He could not see where PW1, PW2 or Thuto were at that time. As the struggle continued, the deceased fired a second shot which hit him above the knee. Appellant said he succeeded in wresting the pistol from the deceased after the second shot. He ran through the kitchen and out of the back door. He then fired one shot into the air to scare off the deceased whom he thought was still chasing after him. Before getting into his vehicle to drive off; said appellant, he fired two shots into the BMW car which he believed belonged to his wife "because I was confused and angry at what had happened." He thereafter drove to his father's house and the two of them went to the police station where he handed the pistol over to the police. In cross-examination appellant said that the bag from which the deceased pulled the pistol was one in which the deceased, who was a Muslim, kept his Koran and therefore never allowed anyone in the house to touch it.

Sub-Inspector Bernard, who arrived on the scene very soon after the shooting and took to the hospital the deceased and Thuto, who were still on the scene when he got there, said he picked up a 9 mm spent cartridge from the floor of the living room. Next morning he picked up three spent 9 mm cartridges outside the house near the deceased's car and another empty 9 mm cartridge and two bullet heads in the living room. When appellant handed in the pistol to the police there was one live round of ammunition in the magazine.

Gyeke-Dako J, in a carefully considered and researched, comprehensive and well-reasoned judgment, correctly applied the test in a criminal case viz that if there is a reasonable possibility of an appellant's story being true, he is entitled to his acquittal. He found, however, that in casu appellant's version that it was the deceased who produced the pistol from a bag kept in the wall-unit in which he also kept his Koran and then attacked appellant to be a "tissue of lies." He rejected appellant's version of events as "flying in the face of credulity" and "being beyond belief."

It is now well-established in this Court, as it is in the courts of other Commonwealth countries, such as the United Kingdom and South Africa, that an appeal court is very reluctant to upset the findings of fact of the trial Judge a quo and will do so only where it is convinced that he was wrong, the trial court having had the advantage of seeing and hearing the witnesses and observing their demeanour (see e.g. R v Ohlumayp 1948 (2) SA 677; Coghlan v, Cumberland (1898) 1 Ch. D. 704; Powell and Wife v. Streatham Manor Nursing House (1935^ AC 243; jv Kuniz (2) 1975 BLR 20; Geofrey Lesaso v. State Cr. App. 13 of 1994 (unreported). On a careful reading of the record I am not convinced that the learned Judge a quo was wrong in his findings. Indeed, I am satisfied that he was correct. He had also, as pointed out, made demeanour findings as to the credibility of the witnesses with which this court will not be entitled to interfere.

In deciding whether appellant's version of the events may reasonably possibly be true, it is, of course permissible to consider the probabilities of the case and if on all the probabilities the version of the appellant is so improbable that it cannot be supposed to be the truth then it is inherently false and should be rejected. This had been the approach in the courts of South Africa and I agree with it (see e.g. S v. Singh 1975 (1) SA 227 (N); S v. Munyai 1986 (4) SA 712 (V); S v Jaffer 1988 (2) SA 84 (C).

In the present case it seems to me to be wholly improbable that having gone to the house of the deceased with whom, according to appellant, he was then on good terms, to persuade his wife to return to him, he should after a struggle over a pistol in which his father-in-law, the deceased, was injured, choose not to go to the aid of the deceased but rather, having wrested the

8 pistol from him, then fire at least one shot from it either into the house or just outside it and then go further and fire further shots from it into the deceased's vehicle standing there. Appellant said he thought the car belonged to his wife. For the reasons cogently set out by Gyeke-Dako J. This averment is so improbable as to be devoid of all truth and indeed, Mr. Pilane. who appeared for the appellant both in this Court and at the trial quite correctly did not seek to pursue it before this Court when he abandoned the appeal on the charge of malicious damage to property. Moreover, it is most improbable that the deceased should, upon the appellant's entry into his home, go to the wall-unit, take out of a bag the pistol and attack the appellant. There is no evidence that the deceased was of violent disposition and nothing had occurred that should then have prompted him to become violent. It is also highly unlikely that appellant would have fired a shot into the air to scare off the deceased whom he knew was wounded in the leg. It is equally improbable that in those circumstances he would have thought that the deceased was pursuing him On the probabilities, therefore, I agree with the learned Judge that the appellant's story is so improbable as to be devoid of all truth. I also cannot accede to Mr. Pilane's suggestion that appellant fired the third shot into the house and the shots into the car out of resentment towards the deceased and his family. Nothing that the deceased or the others had done could have provoked that degree of resentment.

Mr. Pilane's main attack on the judgment of the court a quo centred on the evidence of PW2 which he said was heavily relied upon.the learned trial Judge but was so unreliable as to be incapable of acceptance. He proceeded to detail a large number of instances where he submitted, there were fatal inconsistencies in her testimony. There are undoubtedly inconsistencies in her evidence but this is not surprising having regard to two factors. Firstly, she was subjected to a lengthy and searching cross-examination on, for example, minutiae such as distances between those present at various times, as to how and what course she took when she ran from the living

9 room to hide outside and to other trivial and peripheral matters to the main events. Secondly, those events took place within a minute or two at a time when shots were being fired around her, the whole atmosphere was tense and traumatic and the witness was so frightened that all she wanted to do was to get away from the house and hide outside. In any event, as pointed out by Mrs. Makgabenyane for the State, the inconsistencies were not on material matters such as to affect the result of the case. On those, as the learned Judge found, she was not shaken. I can see no reason why her brief evidence as to what she saw in the living room before she ran outside should be rejected. Mr. Pilane also submitted that a fatal irregularity had occurred during her evidence. During her cross-examination which started during January 1995 the case was postponed to 20 February 1995. When it resumed on that day the evidence she had previously given was read back to her before Mr. Pilane could continue his cross-examination of her. This, he submitted, was an irregularity of such nature as to be destructive of the whole of her evidence. While no doubt it is not normal procedure to read back all the testimony of a witness given previously to her, it is not unusual, for clarification purposes, for some part of such testimony to be read back But in any event incasu there was in my view, no prejudice to appellant. Many of the inconsistencies referred to by Mr. Pilane are reflected in the record after the reading back to her of her earlier evidence. I can, therefore, find no substance in this submission.

In any event the learned Judge a quo did not find against the appellant only on the evidence of PW2. While quite correctly not relying on the evidence of PW1 directly in regard to the count of manslaughter he also took into account, in his acceptance of the State case, her evidence and that of PW3 in regard to the broad events of that evening, the objective facts as found by Sub-Inspector Bernard and the probabilities of the case. As already stated he relied particularly on the evidence of PW3 whom he believed completely. No real attack was made by Mr. Pilane on her testimony.

The learned trial Judge furthermore relied on another factor which, in my view, is also an additional insurmountable hurdle to appellant's success in this appeal. It is thisjis set out above, appellant's story was that the deceased went to the wall-unit and took out the pistol from a bag kept there and in which he also kept his Koran. Thereafter he struggled with the deceased and disarmed him of the pistol and that it was during such struggle that the deceased was shot. That version was never put to any of the prosecution witnesses during Mr. Pilane's cross-examination of them Mr. Pilane is a most experienced attorney and his cross-examination of the witnesses, especially PW2 ,was exhaustive, thorough and searching. It is to me inconceivable that if he had been told that version by the appellant before the latter gave it in the witness box, he would not have put it to the witnesses. It is well-recognised that a party cross-examining should put to each of his opposition witnesses so much of his own case as concerns that witness particularly where it is intended to suggest that the version of the witness is not the truth. The failure to do so in this case must, in my view, as the trial court found, cast grave doubts on the veracity of appellant's testimony.

It is true that no State witness could testify directly that they saw appellant shoot the deceased. A finding that he did so must therefore depend on the circumstantial evidence led. In considering that, the well-known principles set out in the South African Appeal Court in R v Blom 1939 AD 188 at 202-3 and adopted in Botswana in rmfhampdimo v. State 1984 BLR 119 at 134-5 must be kept in mind viz that the inference sought to be drawn from the evidence must be consistent with all the proved facts and they must be such that they exclude every other reasonable inference from them save for the one sought to be drawn. In the present case on the evidence which the trial court accepted, appellant was seen firing the pistol into the house where the deceased and his family were and the deceased was shot. The only reasonable inference to my mind from those facts is that appellant shot the deceased.

The deceased died from the shot. Appellant therefore caused his death. The trial Court carefully considered whether he was, in the circumstances, guilty of murder or of manslaughter and considered that the correct verdict was a conviction of manslaughter. I think appellant was somewhat lucky in that finding. But be that as it may.

Botswana: Court of Appeal

Bogosi v The State (Criminal Appeal No 25 of 1996) [1996] BWCA 38; [1996] B.L.R. 72 (CA) (19 July 1996)