Montsho and Another v The State (Criminal Appeal No. 7/96 ) [1996] BWCA 44; [1996] B.L.R. 664 (CA) (19 July 1996)

This is a criminal appeal. The late Boitumelo Mabe ("the deceased") lived alone at Mmalore Lands in the Ngwaketse Administrative District. She was 71 years old. She derived an income from using her tractors to plough the lands of neighbouring farmers under the Drought Relief Farmers' Project. The paying officer under the scheme paid the deceased a cash sum of P775 on 14 March 1994 and a further cash sum of P775 on 24 March 1994. On each occasion the money was paid in bank notes consisting of the following denominations: 7 one hundred Pula notes; 1 fifty Pula note; 1 twenty Pula note; and 1 five Pula note.

2 The deceased was seen alive after sunset on Saturday 26 March 1994. At some time thereafter and before the morning of Sunday 27 March 1994 she died in her hut. The post-mortem examination on her body performed on 2 9 March 1994 revealed that the cause of her death had been asphyxia due to throttling.

After the news of the deceased had become known to her friends and relatives her hut was visited by various people on the Sunday in question. The evidence shows that while they were so in her hut Mrs. Boingotlo Sebonego and Mrs. Metsiapula Masire (a niece of the deceased) examined the contents of a suitcase belonging to the deceased. In the suitcase they found a cash amount P210 consisting of 2 one hundred Pula notes and 1 ten Pula note.

A sequel to the death of the deceased and the discovery of the relatively small amount of cash in the suitcase in the hut was the prosecution of the two youths who are the Appellants in this appeal. Both youths had known the deceased during her lifetime and had visited her on her property. The second appellant, Onalenna Mabe, was in fact the grandson of the deceased.

In the High Court the two appellants were jointly charged (count 1) with the murder of the deceased (count 2) with robbery in respect of the deceased in the sum of PI,200 in that they had used violence on the deceased in order to obtain the said sum of money from her or to retain such money. In respect of each count the indictment alleged,

The indictment contained a further count (count 3) against the second appellant alone. This count charged the second appellant with having been found, on 26 March 1994, in unlawful possession of dagga. Although the second appellant was found guilty and sentenced on count 3 there is no appeal in respect of that count and nothing more need be said of it.

The trial of the two appellants came before the Chief Justice. The two appellants pleaded not guilty on all counts. The bulk of the evidence adduced at the trial was received in the form of written statements by witnesses for the prosecution admitted in terms of Section 273 of the Criminal Procedure and Evidence Act, but there testified in the witness stand Detective Superintendent Gosetsemang Samachana of the Botswana Police and Mr. Edward Raletobana, an Assistant District Officer in Kanye. The former testified in relation to certain answers given to him by the appellants when he had interrogated them in turn. These answers had prompted him to take the two appellants to Mr. Raletobana in order that confessions by them might be recorded. The testimony of Mr. Raletobana related to his questioning of the two appellants prior to his recording of the statements made by them to him. These statements were tendered by the State as

At the close of the State case the two appellants elected to remain silent. They closed their respective cases without adducing any evidence in support of their defences. An examination of the evidence adduced by the State at the trial shows that the case against the two appellants hinged entirely on circumstantial evidence.

A circumstantial fact is one from which an inference may properly be drawn as to the existence or non-existence, of a fact in issue. The cogency of circumstantial evidence depends on its nature and intrinsic significance in a particular case. This may vary from the highest to the lowest in probative value. In the instant case the Chief Justice in the course of his judgment stated that he drew no inference adverse to the appellants from their failure to testify. Having regard to the nature and extent of the circumstantial evidence upon which the case for the prosecution rested, it seems to me, with respect, that the trial Court was entirely correct in so approaching the inquiry into whether the guilt of the appellants had been established beyond reasonable doubt.

Having reviewed the evidence for the prosecution in his judgment at the conclusion of the trial the learned Chief Justice found each of the appellants guilty of the crimes of murder and

Reference has already been made to the fact that the case for the prosecution was that in robbing and murdering the deceased the appellants had acted in concert. Crucial to the conviction of the appellants was the finding by the trial Court that such concerted action on the part of the appellants had been proved. In the concluding portion of his judgment the learned Chief Justice said the following:-

"I am convinced that the two accused acting together formed a common intention to rob the old lady of her money and that they either killed her before taking the money or killed her after they had taken the money from her. In my judgment it is irrelevant who did the throttling of the old lady, they had formed a common purpose to prosecute an unlawful purpose and the throttling of the deceased was deliberate and in pursuance of that common purpose as stated

Mr. Dahanayake, who argued the appeal on behalf of both appellants, submitted that upon a proper analysis of the evidence adduced at the trial the conclusion of the trial Court reflected in the excerpt from its judgment quoted above could not be sustained; and that each of the two appellants had been wrongly convicted of murder and robbery.

It is now necessary to examine those pieces of evidence in the case which point to the complicity of the appellants and thereafter to consider whether their cumulative effect is sufficient to sustain the conclusions at which the trial court arrived.

What seems to have precipitated the arrest of the appellants was the lavish spending of money by the second appellant at or about the time of the deceased's death. There is for example, evidence that on the very day of her death the second appellant, who was no more than a teenager, was buying liquor and paying for it with a bank note of a large denomination.

According to the admitted summary of a statement by Ontibile Motseothata, a barmaid at Mmathethe, on Sunday 27 March 1994 a young man clad "in a black leather jacket" on several occasions throughout the day bought from the bar liquor at a total cost of P50; for which he paid by giving her a P100 note, telling her

On Monday 28 March 1994 Mr. Keorapetse Basutli found the second appellant and two other men drinking beer. Thereafter he saw the second appellant buy six beers and a little later canned fish and bread. Mr. Basutli says that he refused to drink with them because he suspected that payment was being made with stolen money. Still later Mr. Basutli asked the second appellant where he had obtained the money. The second appellant replied that a Mr. Tau had paid him for ploughing services rendered. According to the admitted statement of Tau, however, he had paid the entire amount so owing to the second appellant (which amounted to P140) not to the second appellant but to his mother.

"That was when Nkibinyana [ a reference to the second appellant] told us that Samola [the first appellant] knows something about the money since he is having P600-00 and he Nkibinyana was also having P600-00 to Samola's mother."

Detective Superintendent Samachana was stationed in Kanye during 1994. On Sunday 28 March he proceeded to Mmalore Lands and in the Tribal Administration Office at Mmathethe he found the two Appellants. They had been arrested by the local police on suspicion of having stolen some money.

Beginning with the second appellant Samachana questioned each appellant in turn in connection with the death of the deceased. According to Samachana the second appellant put the blame for the deceased's death upon the first appellant.

During his interview with the first appellant, so testified Samachana, the first appellant said that "the money" had been given to him by the second appellant. Samachana further asked him who had killed the deceased. To this question the first

Having discussed the relationship between the second appellant and the deceased; the second appellant's admission that he had "taken money from where he worked"; and his failure to explain how he had come to give half of it to the first appellant, the trial Court remarked in its judgment:-

"This court cannot explain otherwise why accused No. 2 [the second appellant] should obtain money from the deceased and distribute half of it to accused No. 1 [the first appellant] unless accused No. 1 played some role in securing that sum of money."

It is no doubt a ready inference that the money in bank notes of large denomination which the second appellant was ostentatiously spending was money dishonestly come by. But one of the questions which arises is whether it is necessarily to be inferred that all

The learned Chief Justice concluded in his judgment that P1200 was removed from the deceased's hut by the person or persons who killed her. However, insofar as the second appellant's possession of a large amount of money may suggest a link between him and the crimes committed in the deceased's hut after sunset on Saturday 26 March, an obstacle in the path of the prosecution is presented by the following aspect of the evidence.

The statements of at least two witnesses admitted at the trial reveal the significant fact that the second appellant was seen to flourish about bank notes of large denomination long before sunset on Saturday 24 March. This aspect of the case seems to have been overlooked in the judgment of the trial Court.

The second appellant has a younger brother called Onneile Mabe. In a statement sworn to by him on 31 March 1994, Onneile states that at around 3 pm on Saturday 26 March 1994, and at a shebeen, he saw the second appellant handing to Sobi a single P100 note with which to buy three shake-shakes. According to Michael Tsamaase (also known as "Tom") he was in the company of the second appellant on the morning of Saturday 24 March 1994, when the second appellant.- -

Upon their arrival at Mmatlhokgwe's place, so says Tom, the second appellant gave him a P50 note with which to buy four pints of Chibuku. After further drinking the second appellant told Tom that he still had left a further P100.

Moreover, Tom's statement provides corroboration of Onneile Mabe's version already mentioned. Tom says that at about 2 pm, and after the second appellant's brother [Tom calls him "Simane"] had arrived with Sobi, he [Tom] saw the second appellant giving Sobi a P100 note. Tom says he parted with the second appellant at a yard where Chibuku was on sale -

The various admissions respectively made by the appellants first to Mr. Basutli and later to Detective Superintendent Samachana, so far as they go, certainly indicate that each of the appellant's may have had some knowledge regarding the commission of the crimes of murder and robbery with which they were charged. Apart from the obvious consideration that knowledge of the commission of a crime does not necessarily connote the direct complicity in it on the part of the person having such knowledge, two important features in relation to these admissions should be noticed. First, each of the admissions is somewhat imprecise in its content and susceptible of a number of interpretations. Second, and of greater significance in the context of the present

It is true that the evidence adduced by the State excites grave suspicion against the appellants. It is probable, so I consider, that either the first or the second appellant or both the appellants murdered and/or robbed the deceased. The crucial question remains whether the cumulative effect of the evidence is such as to sustain, as the only reasonable inference, that each appellant was guilty of either or both crimes.

Having regard to the nature of the circumstantial evidence against the appellants proof of their guilt, as the trial Court fully appreciated, depended upon proof of a common purpose. As was pointed out by HOLMES J.A. in S. v. MADLALA 1969 (2) S.A. 637 (a) AT 640H:-

"It is, of course, plain that, in the absence of proof of common purpose, a Court cannot convict co-accused on the footing that one or the other or both of them must have done the deed, for that postulates the possible innocence of one of them."

Botswana: Court of Appeal

Montsho and Another v The State (Criminal Appeal No. 7/96 ) [1996] BWCA 44; [1996] B.L.R. 664 (CA) (19 July 1996)