Makwati v The State (Criminal Appeal No. 18 of 1996 ) [1996] BWCA 42; [1996] B.L.R. 682 (CA) (19 July 1996)

The Appellant was, at the time of the incident giving rise to the charge of murder against which he now appeals, a member of the Special Support Group ("S.S.G") of the Botswana Police. The incident occurred at about 11 a.m. on the 18th February, 1995. It seems that on the night of the 16th February two police officers had been assaulted in the neighbourhood during what was termed "The Mochudi disturbances". A police patrol including members of the S.S.G. set out on the following day to find and arrest persons suspected of having a part in the assault upon their colleagues. The police gave evidence of visits to various houses and the arrest or detention of certain suspects. They were guided to the homestead of a Mr. Moroka where, they were told, they would find one Binto Moroka who, they had reason to believe, was implicated in the assault.

Appellant, carried a firearm. He had been issued with an AK47 rifle and twenty cartridges. The other policemen had batons only. An AK47 may be adjusted in such a way as to produce a single shot on pressing the trigger or, at the option of the person operating it, to fire on an automatic basis until the trigger is released or the magazine emptied.

The events which occurred after the police patrol arrived at the Moroka yard are, even on the State evidence, far from clear. We were told by Mrs. Dambe who prosecuted on behalf of the State that it was decided to call certain villagers and certain police officers to give evidence as to what happened immediately before and at the time of the shooting of the deceased. The prosecution was aware of serious discrepancies between the statements of witnesses but decided on this course because it could not determine which of the two conflicting versions was the correct one. In the circumstances it may well have been the proper thing to do.

However, the adoption of what was broadly a two-pronged mutually destructive approach by the prosecution effectively required of the Court that it should make findings as to which of the two versions it accepted and give reasons for so doing. The trial Court had the great advantage of seeing and hearing the witnesses. The learned Judge should have examined the evidence of each witness in either group with a critical eye and come to a conclusion as to the relative reliability of each of them;as to which facts should be accepted and then set out in the judgment the reasons for coming to such conclusion. The necessity for a reasoned statement of which of the two versions

3 and the evidence of which witnesses should be accepted was in the present case of the utmost importance because, on the version of the majority of villagers, the Appellant was guilty of the cold blooded murder of Binto whereas, on the police version, he had been guilty of shooting the deceased in circumstances amounting to the use of excessive force to effect an arrest or to subdue the Appellant who was attempting to escape from lawful detention, so rendering himself liable to conviction of the crime of manslaughter. Unfortunately the learned Judge did none of these things. All that this Court knows is that the learned Judge must have rejected the evidence of the Appellant because he found him guilty of murder, but what part of the State ' evidence was accepted by the learned Judge in coming to this decision remains obscure because one does not know what version of the State witnesses was used by him to reach the verdict he did.

Mr. Hannon, S.C. who appeared for the Appellant, wisely it would seem, did not attempt to support the version of the Appellant. He, however, urged upon this Court to approach the appeal on the assumption that the State evidence most favourable to the Appellant should be accepted since no assistance was provided by the Judge who heard the case. There seems to be merit in this approach. I will proceed by giving a short outline of the evidence for the State and the Appellant.

The sister of the deceased Ms. Lesego Moroka says that she was asleep in a room of a two bedroomed house at about 11 a.m. when she heard persons calling her brother's name. Her brother was asleep in a nearby hut. She went outside. She found six S.S.G. officers. Her brother, whose first name was Binto,

4 appeared from the hut and acknowledged that he was Binto. The S.S.G. officers then assaulted him with a baton and sticks which they were carrying. They struck him all over the body. Binto tried to run away and one of the S.S.G. officers tripped him. He then stood up and walked toward the entrance of the homestead which fronts upon a street. The S.S.G. officers walked on either side of him. The Appellant then arrived and walked past the witness. When Binto was about to go through the gate, the witness heard someone say "fire up" , at which the Appellant shot her brother from behind. The witness identified an AK47 as the weapon shown to her as looking like the gun which killed her brother.

Mr. Phiri Mogau was visiting in the vicinity of the Moroka homestead when he saw six S.S.G. officers enter the premises by jumping over the fence or entering through the gate. They knocked at the door of the house and of the hut and Binto emerged from the hut. Two of them "fought" Binto by hitting him with batons and kicking him on the buttocks. Binto then ran away but he was tripped and fell. He was again kicked but he got up and ran towards the house. Two S.S.G. officers then got hold of his arms and they walked with him toward the entrance to the yard. Someone then shouted "halt" and Binto was released. He was then shot from behind. He and Binto's sister found two cartridge cases.

Mr. Lekgoa Phera, who was a resident of Mochudi, gave evidence which approximates more to the evidence of the S.S.G. officers than to what was said by the first two villager witnesses. He says that he saw an S.S.G. officer pointing a gun

5 at Binto when he came out of the hut. Binto then pushed the gun away from him and ran away toward the entrance to the yard. He ran for ten paces and was then shot by the Appellant. The most important omission in the evidence of this witness was the assault upon the deceased and the most important discrepancy was the statement that the deceased was running away when he was shot and not apparently under the control of the S.S.G. as the other villager witnesses said.

The version of events given by Mr. Phera is basically the same as that given by the S.S.G. officers - a confrontation over the gun, no assault by the S.S.G. upon the deceased and an attempt by Binto to escape from the yard by the front gate, followed by a shot or shots from the gun of the Appellant when Binto reached the gate.

The post mortem report shows that three bullets struck Binto. One entered the back of the chest on the left side and emerged at the front on the right side. Another entered below the right buttock and emerged at the outer side in the lower side of the right thigh. The third grazed the left front of the chest touching the nipple on the upper part of the contusion. There were ten abrasions between the shoulder and the feet variously situated. They could, according to the medical evidence, have been caused by a fall onto a rough surface or during a struggle or a fight. The fact that three bullets were fired emerged when the number of bullets viz seventeen were counted when the Appellant returned the AK47 and the remaining bullets in the magazine to his superiors.

6 that of the S.S.G. officers up to the stage when the bullets were fired. He said that he was not aware that the AK47 had been switched to the automatic mode during the initial tussle and believed that it was on single shots when he fired it. The shots were fired into the ground in order to warn the fleeing Binto that he should stop and give himself up. The shots must have struck Binto after a ricochet from the ground. This defence has all the hallmarks of an invention. The possibility of a ricochet was never mentioned to any of the State witnesses and in particular to the doctor who could have expressed an opinion as to whether the entry points on the body of Binto were consistent with a ricochet. No State witness was asked whether he or she had seen the Appellant firing into the ground. Counsel for the Appellant was correct in saying that he would not rely upon his evidence relating to the shooting in order to raise a doubt about the correctness of the conviction. It could not reasonably have been true.

Mr. Hannon argued that in the circumstances and on the version of the other member of the S.S.G. , the Appellant was acting within the powers of arrest granted by the Criminal Procedure and Evidence Act and that the proper verdict was one of not guilty. For the reasons set out later in this judgment I am of the view that the Appellant used excessive force in attempting to arrest the deceased. The possibility of a verdict of not guilty thus falls away and I will not deal with it further.

"200(1) Any person who by an unlawful act or omission causes the death of another is guilty of the offence termed manslaughter; (2) An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health whether such omission is or is not accompanied by an intention to cause death or bodily harm."

This definition constitutes a fair definition in material respects of the crime of culpable homicide in Roman Dutch Law and, in my view, authorities from the Courts of the Republic of South Africa dealing with the crime of culpable homicide and its relation to the crime of murder can usefully be considered in cases of alleged manslaughter.

"47(1) Where a peace officer or other person authorised to arrest a person (such latter person being hereinafter in this section referred to as "the offender") endeavours to make such arrest, and the offender forcibly resists the endeavours to arrest him, or attempts to evade the arrest, such peace officer or other person may use all means

(2) Nothing contained in this section shall be deemed to justify the use of greater force than was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender."

In the present case the Appellant shot Binto from a distance of between ten and twenty metres. It was during daylight hours. There were at least five other S.S.G. officers in the immediate vicinity of the fleeing man. There was a police truck near Moroka's yard. No warning shot was fired, nor was there any shouting by the S.S.G. officers to stop Binto running and to give himself up. In these circumstances it would seem that the Appellant went far beyond the limited protection afforded by Section 47 in shooting Binto with an AK47 on automatic mode. To shoot him in this way was not reasonable in the particular circumstances of the present case. It does not seem to be necessary to place reliance upon the fact that in a case of this kind the onus is upon the accused person to prove on a balance of probabilities that he was protected by Statute from conviction.

What is now the correct verdict in this case? The decision of Ramsbottom, J. In R v Koning 1953 (3) S.A. 220 (T) has relevance. The accused was a prison warder who was in charge of a group of prisoners doing agricultural work on a farm. By reason of his position he was granted partial legal protection when a prisoner attempted to escape and he wished to prevent that escape. He did not take reasonable steps to prevent the escape of a prisoner thus going beyond what was rendered lawful by a Statute. His Lordship said at pp. 232 to 233:

"The killing of persons who resist arrest is analogous to self defence. The one is defence of one's person, the other is defence of the State.... If in the defence of one's own person excessive force, though criminal, may be in our law a culpable homicide, so by analogy killing in defence of the state, though not justified by necessity, where there has been force used in excess of what the occasion of necessity requires, nevertheless a verdict of culpable homicide must be a legal verdict. I have come to the conclusion therefore, that in law, although there was intentional killing, the verdict is not necessarily one of murder. That, however, does not yet conclude the matter because whether or not murder has been committed will depend upon whether there was necessity at all, whether this was in fact a case where what the accused did was merely to use an excess of force which would otherwise have been justified."

"The question is whether this case is a case where the force used was so excessive, the shooting so premature, that we must say that the crime was murder or whether all the facts show that what happened was an error of judgment."

"There is a certain type of case in which the courts, even though they find that the accused ostensibly had an intention to kill, convict him of culpable homicide. These are cases where the accused, in killing, exceeds the bounds of a ground of justification such as self-defence or the defence afforded by Section 49(2) of the Criminal Procedure Act (killing a suspected criminal who flees).

They are sometimes referred to for convenience as the "partial excuse cases." The reason why an accused is convicted of culpable homicide (and not murder) in such cases is that the intention to kill is "not entirely but to some extent excusable." It is submitted that a closer examination of these cases reveals that while the so-called intention to kill as a direction of the will at the causing of death is present, knowledge or appreciation of the unlawful character of the act - an essential element of dolus or intention for the purposes of criminal liability - is lacking because of factors such as sudden decision to act, excitement or over-eagerness. Dolus or intention to kill in its proper legal connotation is therefore lacking. Apart from this, to convict someone of culpable homicide where there was in fact an intention (in its proper legal sense i.e. dolus) to kill would be irreconcilable with the appeal court's recent clear and unequivocal description of culpable homicide as the unlawful and negligent killing of another."

Since the crime of which the Appellant is now found guilty is less serious than that of murder it follows that a reduction in the sentence should be considered. Though found guilty of a lesser offence it remains a serious one. The appropriate sentence in the circumstances is in my view one of imprisonment for five years to run from that date when the Appellant was taken into custody, two years of which are suspended for three years on condition that he is not found guilty of an offence committed during that period which involves violence, and which is sufficiently serious to merit the imposition of an unsuspended sentence of imprisonment without the option of a fine.

Botswana: Court of Appeal

Makwati v The State (Criminal Appeal No. 18 of 1996 ) [1996] BWCA 42; [1996] B.L.R. 682 (CA) (19 July 1996)