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Mosarwa v The State (Criminal Appeal No. 17 of 1996 ) [1996] BWCA 45 (19 July 1996)
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IN THE COUTRT OF APPEAL OF BOTSWANA HELP AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 17 OF 1996 HIGH COURT CRIMINAL TRIAL NO. 4 OF 1995
IN THE MATTER BETWEEN
SEBARATANE MOSARWA
APPELLANT
VS
THE STATE
RESPONDENT
MR ATTORNEY E.W. FASHOLE LUKE II FOR THE APPELLANT MISS ATTORNEY P. SOLOMON FOR THE RESPONDENT
JUDGMENT
CORAM: J.H. STEYN JA
P.H. TEBBUTT JA LORD ALLANBRIDGE JA
STEYN J.A
Appellant was convicted on a charge of murder in the High
Court. He was sentenced to 10 years imprisonment. He appeals
against this conviction on the following grounds:
"1. The Learned Judge failed to address himself adequately or correctly upon the burden of proof and or standard of proof.
2 . The Learned Judge failed adequately or at all to address his mind to the elements and ingredients of provocation, and in particular, misdirected himself when he found the Appellant guilty of murder when he had found in his judgment the defence of partial provocation had been proved. The Learned Judge having found the defence of
2
partial provocation had been proved and/or established the trial, it was the duty of the Learned Judge to then acquit the accused person of the offence of murder and convict him of manslaughter. His failure to do so was a misdirection.
2. The verdict was unreasonable, and cannot be supported having regard to the evidence.
4. By reason of the foregoing, and in all the circumstances of the case, the conviction of the Appellant upon the count charged is unsafe and unsatisfactory."
There was also an appeal noted against the sentence. It was contended that it was "manifestly excessive" and that the trial Court paid insufficient regard to the matters advanced in mitigation.
At the hearing of the appeal the Court set aside the conviction and the sentence. It recorded a verdict of guilty of manslaughter and imposed the sentence set out below. These are the reasons why we did so.
Brawls at beer parlours are not uncommon occurrences. To determine with any degree of certainty precisely what happened is however often a difficult task. This case is no exception. There are contradictions in the evidence tendered by the State. The Appellant himself was not an impressive witness. Indeed the State submitted with considerable justification at the trial that his evidence was "fanciful and concocted in an attempt to lessen
his blameworthiness."
3
What does, however, appear to be common cause is that:
1.
The deceased assaulted the Appellant by picking
up a branch of a thorn tree and according to one
witness, PW2, pushed it "with force" on the back
of the Appellant. According to another State
witness, PW3, whose statement was admitted by-
consent, "
the deceased went and brought a
branch and hit the accused."
2.
Slight injuries attributable to this assault were noted by the magistrate who recorded a confession by the Appellant the day after the incident.
3.
All the witnesses agree that the deceased insulted the Appellant by making well-known but grieviously insulting remarks about the private parts of the Appellant's parents. (According to the Appellant the deceased also addressed vulgar comments to him personally). According to PW3' s statement, the insulting remarks were - despite a request from the Appellant that the deceased should stop insulting him - repeated by the Appellant. The assault on the Appellant referred to under paragraph 1 above took place after the insults were levelled at the Appellant.
4.
It is not clear whether or not there had been a physical skirmish between the Appellant and the deceased or not. It is, however, beyond
dispute that after the exchange of insults on at least two occasions and after having been assaulted with the thorn tree branch, the Appellant retaliated by striking the deceased with the fist both on the head and on the back of the neck and felled him to the ground.
5.
The deceased died as a result of sub-arachnoid bleeding on the brain. Whilst there was no fracture of the skull there was, according to the post mortem findings, a "contusion of the scalp 10 cm x 7 cm on the frontal and right parietal bone, obliquely placed." There was also "bilateral diffuse sub-arachnoid haemorrhage. The right upper eye - lid was swollen. This external injury would in all probability have
2.
4
reference to the underlying contusion of the scalp and the attendant haemorrhage.
6 . The Appellant did apparently strike the deceased with a foot long part of a broken stick on the shoulder after he had fallen down as a result of the blows delivered with the fist by the Appellant. However this blow could not have been severe, as no corresponding injury is recorded in the post mortem report. He also, according to some of the evidence, levelled a kick at the deceased when he was already prostate. This probably accounted for the abrasion 1 cm x 0.5 cm on the front side of the right thigh.
7.
The deceased was according to the
evidence heavily intoxicated. The Appellant had
consumed liquor, but how much and what effect it
had, was not traversed in evidence.
8.
The Appellant and the deceased had according to PW3 been "good friends."
In convicting the Appellant the Court a quo held that:
"Clearly in my view the defence of partial provocation has been proved in this trial."
The Learned Judge however, then goes on to say in the next
sentence:
"And in the result I hold that the State has proved its case against the accused on the indictment for murder contrary to Section 202 of the Penal Code."
The persistent insults were, however, given sufficient weight by the Court below to merit a finding that extenuating circumstances were present.
I have been unable to find any reference in the judgment of
the High Court to the fact that the deceased's death was most
5 probably attributable to the blow with the fist delivered to the
front of the head by the Appellant. It was, as indicated above,
such a blow that would have given the deceased a "black eye" and
would have occasioned the underlying contusion and the bleeding
on the brain causing death. Most unfortunately the Judge a quo
also failed to make any findings other than those which I have
recorded concerning the presence of "partial provocation." This
does leave the Court of Appeal in an invidious position of having
to interpret the evidence itself. It has to do so without any
assistance from the Court below as to what the facts are it found
proved, on whose evidence it relied and what testimony it
rejected. The judgment consists almost exclusively of a
recitation of the evidence, the submissions of Counsel and a
verdict. This approach is especially regrettable because we are
unable to determine why the Court below found it established
beyond a reasonable doubt that it could attribute an intention
to kill to the Appellant.
When the matter was called I expressed these concerns to
Counsel for the State. She readily and, in my view very
correctly, conceded that there had been no proper evaluation of
the medical evidence or any finding as to how the deceased came
to die. Neither was she able to contest that it was certainly
not evident that the Appellant ever intended to kill the deceased
6
either deliberately or by virtue of an indirect intention or
dolus eventualis. Indeed it is highly improbable that anyone would have thought it likely that the deceased would have died as a result of the fist fight or the other less serious assaults inflicted on him by the Appellant.
Quite apart, therefore, from the fact whether or not the Court a quo was right to convict on a murder charge when the Appellant was "partially provoked," it is our clear view that the State never proved that he intended to kill the deceased. For these reasons the Appellant can only be held criminally liable for having unintentionally but unlawfully brought about the death of the deceased. Accordingly a verdict of guilty of manslaughter was recorded at the hearing of the appeal.
In regard to sentence we took into account the following facts:
1.
Whatever the provocation may have been, the reaction of the Appellant was excessive. The deceased was very drunk and unable to defend himself.
2.
The assault was not confined to a single blow but several blows were struck and the deceased was kicked and assualted with a broken stick.
3.
However;
3.1
Appellant at age 51 is a first offender,
3.2
He was severely and persistently insulted and also assaulted.
3.3
As a result of having been in prison for 2 years
3.1
and 3 months he will probably not only have lost his job, but may find it difficult to find another.
3.4 He had certainly consumed some liquor that may well have affected his judgment.
In all these circumstances we were of the view that a fitting sentence would be:
4 years imprisonment of which 2 years is suspended for 3 years, on condition that the Appellant is not convicted of a crime of violence committed during the period of suspension, which is sufficiently serious so as to merit the imposition of an unsuspended sentence of imprisonment without the option of a fine.
The sentence is deemed to have taken effect from the 18th of March 1994.
DELIVERED IN OPEN COURT THIS19TH DAY OF JULY 1996.
J. H. STEYN J.A.
I AGREE:
P.H. TEBBUTT J.A
I AGREE:
LORD ALLANBRIDGE JA_
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