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Keemetswe v The State (Criminal Appeal No. 38/96 ) [1997] BWCA 10; [1997] B.L.R. 126 (CA) (28 January 1997)
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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CRIMINAL APPEAL NO. 38/96 HIGH COURT CRIMINAL TRIAL NO. 2 9/95
In the matter between:
DUNA KEEMETSWE
- Appellant
vs.
THE STATE
-
Respondent
Mr. E.W. Fashole-Luke II for the Appellant Ms. A. Matroos for the Respondent
JUDGMENT
CORAM: AGUDA, J.A. STEYN, J.A. LORD COWIE, J.A.
LORD COWIE,:
On 15th November 1995 at the High Court in Jwaneng the Appellant and another man, TLHOPHO SETSIBA were convicted of murder contrary to Section 202 of the Penal Code (Cap. 08:01). The Appellant was sentenced to 12 years imprisonment to run from the date of his arrest on 15th August 1994, and Setsiba was sentenced to 15 years imprisonment to run from the same date.
Setsiba has not appealed against his conviction for obvious reasons, since he has all along admitted that it was he who stabbed the
deceased four times and caused his death. For the record he has also always maintained that the Appellant had nothing to do with the stabbing. Be that as it may the Appellant was convicted because it was held by the Judge a quo that he had acted in common purpose with Setsiba.
2 The appellant appealed against his conviction and sentence, and his basic position has always been that there was insufficient evidence of common purpose to justify his conviction for murder. At the hearing of this Appeal on 15th January 1997 this Court decided to quash the Appellant's conviction for murder and the resultant sentence, and to substitute therefor a conviction for common assault and a sentence of three months imprisonment to run from 15th August 1994. Since the Appellant had already served a period of two and a half years in prison, clearly he had served the substituted sentence, and so we ordered his immediate release
from prison. Having announced our decision, we undertook to give our reasons for reaching it at a later stage.
The relevant evidence is in short compass, and briefly, it amounted to the fact that following a dispute between the Appellant and
the deceased and while they were travelling in a donkey cart, the deceased dismounted from the cart, followed by the Appellant who then struck the deceased with his fist. The deceased tried to retaliate and on seeing this Setsiba the co-accused dismounted from the cart and came towards the deceased, who immediately ran off into the bush, pursued by the Appellant and Setsiba. During the chase Setsiba was seen to hit the deceased on the back. There were no eyewitnesses as to what happened in the bush, except the Appellant and Setsiba, but a man called Moses Kwape gave evidence at the Trial to the effect that, having been woken up by children, he made his way from his yard and while doing so, he heard the Appellant saying "Stab him, stab him." He then saw the deceased kneeling on the ground and the
3 Appellant and Setsiba running away from the scene. The deceased had been stabbed four times; three times in the back and once in the front, and he died from these injuries.
Before us on 15th January 1997, it was very properly conceded by Counsel for the Respondent, that the conviction for murder against the Appellant could not stand without the evidence of Moses Kwape.
The Judge a quo had accepted that evidence as credible and reliable, and accordingly the question in this Appeal came to be "was the Judge a
quo justified in accepting that evidence and relying on it?"
This Court always has to bear in mind that in considering a question of this kind, weight must be given to the fact that the trial Judge had the advantage of seeing and hearing the witness, but that is not the only factor to be weighed in the balance. This Court is also entitled to look at the evidence and consider whether it contains inconsistencies or discrepancies which are irreconcilable or insufficiently explained by the trial Judge. This matter was dealt with by the Court of Appeal in the case of MONAGENG vs. THE STATE (1983) BLR 254 @ P.278 where Aguda J.A. said:
"It is not sufficient that the trial magistrates and judges should merely be aware of the contradictions and inconsistencies in the evidence of witnesses for the prosecution. They must be able to reconcile those contradictions and
4
inconsistencies, otherwise no conviction can validly be obtained with them unresolved."
In the present case I have come to the conclusion that, notwithstanding the certificate of credibility which has been given to the
witness Moses Kwape, there are inconsistencies in his evidence which outweigh the advantage which the Judge a quo had and have been left unresolved.
In the first place and crucially, the evidence shows that Moses Kwape gave a statement to an investigating police officer at the scene of the crime. In that statement which according to the police officer was read over to him, and which he undoubtedly signed,
he made no mention of hearing the Appellant say "Stab him, stab him." What he said was:-
"On Sunday 14th August 1994 in the morning at around 0830 hours, whilst I was asleep in my hut, I was
awakened by a certain young boy
who
informed me that there were two people, who were chasing a person with a knife outside. I woke up and went outside the yard and I
saw Tlhopho and Duna running away immediately when they saw me. I went to the spot where they were from. When I arrived at the spot where they were, I found (the deceased) kneeling down with (sic) his knees with his head on the ground covering his face with hands."
The explanation which the witness gave in evidence for the
5 inconsistency between that statement and what he said in the witness box was that the police officer had failed to note correctly
what he had said, and he maintained that although he had signed the statement, the police officer had not read it over to him.
In my opinion these inconsistencies required to be adequately explained and acceptable reasons given for them. How the Judge a quo dealt with this matter is as follows:-
"I must now turn to the evidence given by Moses Kwape who is an elderly man, older than any of the witnesses. He is an ordinary
Motswana who lives in the rural area and commands respect and conveys an aura of integrity and honesty. He is barely literate and he is the kind of man who is likely to feel nervous and excited by events that took place around his yard. His evidence is clearly admissible. In his evidence he stated that the police took a statement from
him on the very day and at the spot where this frightening event took place. The Police Officer Gabalebe took statement from him while sitting in front of the van that had brought various police officers and another vehicle to take the body away to the mortuary. It should be noted that in the
statement he made to the
6 police, Exhibit 8, he has not contradicted anything said therein but merely filled in more details during the course of his evidence in chief and during cross examination. The court notes that witnesses like Moses Kwape are generally not able to tell and give exhaustive details of events they have watched and witnesses on their own.
They generally require a lot of prodding before a full and complete story can be given. I am convinced that Moses Kwape is one of
these witnesses and that what he mentioned in exhibit 8 was as a result of what I have already indicated, the inability of a man of his kind, to give an exhaustive account of the events that he had witnessed on his own. Mr. Gaongalelwe wants to persuade the court that his failure to tell the police officer that he heard the words "stab him" and that those words
were coming from Duna must be used to discredit all of his evidence. I do not agree as I am satisfied that Moses Kwape has been telling the truth in everything that he said before this court."
With great respect to the learned Judge a quo, I do not consider that that passage adequately explains the inconsistencies between
7 the statement which Moses Kwape gave to the police officer and the evidence which he gave in Court.
There is no evidence in the case which suggests that Moses Kwape was not able to tell and give exhaustive details of the events which he watched and witnessed, and in any event, if it is true that he heard the Appellant say "Stab him, stab him" as he was making his way out of his yard, I would have expected that matter to be uppermost in his mind when he was giving his statement to the police officer. He did, of course, say that he told the police officer about this, but the police officer had failed to note it. If that had been the explanation which the Judge a quo had accepted, that might at least have been in accordance with the evidence, but to say that the witness was not able to give exhaustive
details of the events in the absence of evidence to that effect, persuades me that the Judge a quo did not deal adequately with the inconsistencies in Moses Kwape's evidence and has accordingly not dealt with the question of the witness's credibility in a satisfactory manner. In the second place, the Judge
a quo did not resolve the dispute between Kwape and the Police Officer on the question of whether the statement was read over to Kwape before he signed it. In particular, the Judge a quo made no specific finding as to the credibility of these two witnesses on this important matter.
For my part, I have come to the conclusion for these reasons alone, quite apart from other possible criticisms of the Judge a quo's approach to the question of the credibility of Moses
8
Kwape, that the evidence of that witness cannot be relied on and must be set aside in assessing the evidence against the Appellant on the charge of murder. In my opinion a conviction for murder based on that evidence would be highly unsafe.
As already explained, Counsel for the Respondent properly conceded, that if Moses Kwape's evidence could not be relied on, she would accept that there was insufficient evidence to support
the murder conviction and that it and the resulting sentence should be quashed. She maintained however that even if the conviction
for murder was quashed, a conviction for common assault should be substituted.
Mr. Luke for the Appellant accepted that position and in relation to the possible sentence which we might impose for such a reduced
conviction, reminded us that the Appellant had already served a period of two and a half years in prison in respect of the murder conviction.
It is for these reasons that we proceeded in the manner stated at the outset of this judgment, and allowed this Appeal to the extent
specified.
Delivered in open court this 28th day of January, 1997.
LORD W.L.K. COWIE JUDGE OF APPEAL
I agree.
A. AGUDA JUDGE OF APPEAL
I agree,
J.H. STEYN
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