You are here:
SAFLII >>
Databases >>
Botswana: Court of Appeal >>
1997 >>
[1997] BWCA 11
[Database Search]
[Name Search]
[Recent Decisions]
[Noteup]
[Help]
Lesolame v The State (Criminal Appeal No. 31/96 ) [1997] BWCA 11; [1997] B.L.R. 60 (CA) (28 January 1997)
.PDF of original document
.RTF of original document
1
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Court of Appeal Criminal Appeal No. 31/96
High Court Criminal Trial No. F29/95
In the matter between:
Appellant
MOSES LESOLAME
and
Respondent
THE STATE
JUDGMENT
CORAM: Schreiner JA Tebbutt JA Allanbridge JA
TEBBUTT [A
The appellant,who was originally charged with murder, was convicted by GYEKE-DAICO J in the High Court of manslaughter in contravention of Section 200 of Penal Code [Cap 08:01] and sentenced to five years imprisonment,
three years of which were conditionally suspended for three years. He now appeals to this Court against his conviction only.
The case against the appellant arose from a shooting incident on 18 July 1994 on a farm in the vicinity of Tonota in Botswana when
the appellant shot dead an
2 Indian man, one Leo Raj Michael. The appellant's defence was that he had shot the
deceased accidentally. The trial court rejected this defence.
Apart from whether the shooting was accidental or not, the facts are for the most part common cause. They are these.
On 18 July 1994, which fell within a long week-end in Botswana, a number of Indian men including the deceased, went on a hunting trip
on the farm of one Senthufe near Tonota. To get to the farm, one has to drive on a road that crosses Mabetha Farm, owned by the appellant's
father.
Some time after 8.30 pm and just outside the fence of the latter farm the party came across a small buck commonly Icnown as a duiker.
Senthufe shot at it but onlv succeeded in wounding it. Certain members of the party chased it and found it about 10 metres inside
Mabetha's Farm, where the deceased took Senthufe's gun and fired three shots at the buck. Even these shots did not kill the buck
which finallv had to be despatched with a machete. The sound of the shots were, however, heard bv the appellant who, thinking that
there were poachers on the farm, set out to investigate what was happening. The hunting party meanwhile went on towards Senthufe's
farm but as it was then getting late it was decided to abandon the hunt and return home, which, after having some cool drinks, they
did.
They were travelling in a Toyota Hilux "bakkie" with an open back bearing registration number BA 4723 B, driven by the deceased.
Appellant in the meantime had taken a firearm, a .375 rifle, which he loaded with four rounds of ammunition and set off in the direction
from which he had heard the shots. He saw the party's
3 bakkie which was just driving off and noted its registration number. Me then
summoned the assistance of his brother, to whom I shall refer, as did Gyeke-Dako
J, as PWl, and other farm hands. PWl suggested that they should give chase after
the baldde which they did in a 4X4 Toyota vehicle driven by PWl. This vehicle was
equipped with a canopy over the driver's seat. As they were travelling after the
bakkie, they met it coming in the opposite direction on its return from Senthufe's
farm.
It is common cause that PWl flashed the lights of his vehicle to indicate to the deceased that he should stop but the deceased did
not do so. PW1 then made a U-turn and set off in pursuit of the bakkie flicking his lights continuously to cause it to stop, which
the deceased finally did.
Just before stopping one of the hunting party threw the dead duiker out of the baldde into a bush at the road side. What happened
then again is largely common cause. PWl and the appellant dismounted from their vehicle. PWl, who was armed with a shotgun, and appellant,
armed as he was with his rifle, ordered the occupants of the baldde to alight from it with their hands up and to kneel down. Some
knelt and others did not but walked towards PWl's vehicle. Those on the back of the open baldde alighted first, followed by the three
occupants of the cabin of the baldde. The deceased alighted from the driver's scat on the right side of the bakkie. The appellant
with his rifle had stationed himself at the back of the baldde on the left hand side of it and his brother, PWl, with his shotgun,
was on the right hand side of the bakkie behind the right rear wheel. As the occupants of the baldde were
4
walking towards the other vehicle, a shot came from the left side of the bakkie hitting
the deceased in the chest. That shot was fired by the appellant's gun. The occupants of the bakkie were then herded into the canopy
at the back of PW1 's vehicle and taken by PW1 and the appellant to the Tonota Police Station where the incident was reported to
the Police.
The body of the deceased was also taken to the police station. A post-mortem report showed that deceased had died of a single gunshot
wound, the bullet having passed through his chest from front to back, rupturing his heart.
Before giving the appellant's version of what occurred at the time the shot was
fired it is convenient to refer to the evidence of a ballistics expert called by the State.
lie said that he had examined the appellant's rifle. He found the safety catch to be
in good working order. He also measured the trigger pull and found the maximum
pressure needed was 1 V?. lbs, which amount of pressure he considered to be light for
a weapon of its type. The trigger also had an adjusting screw which set the trigger
pull. When the trigger was set, the trigger pull was found to be !/?. lb. In regard to
this he said:
"This I would consider to be too light. Set or hair trigger mechanism as [sic] supposed to give very light trigger pulls or pressures.
I found that this weapon can discharge if it is jarred/struck sufficiently hard when the trigger is in the set position"
Asked if jarring the rifle would include "a violent move", the expert said:
"A sharp blow not a sudden movement. A blow to the weapon if the trigger is set can
cause it to go off."
5 I revert then to the appellant's story of what occurred. This appears from two
sources [a] a statement made by him to a District Commissioner some four days after
the incident and [b] his evidence at the trial. In his statement, after telling how the
vehicle in which the hunting party was travelling was stopped, he said:
"Then they got out their vehicle, putting up their hands as we ordered them. I realised one of them had remained in the vehicle.
When I ordered him out the gun, I was holding went off [shot out]. I did not then realise that it had killed somebody. Then we locked
them in our vehicle, and drove them to the police started station including the dead body. Then the police started investigations
up to now. But it was not my intention to kill a person"
In his evidence he said that when the bakkie stopped, he and his companions
disembarked from their vehicle. PW1 went to the right hand [ie drivers] side of the
bakkie and he to the left hand or passenger's side. He then said this I quote from the
record:
"All along I had the safety catch of the gun on but when I got out of the vehicle I removed the safety catch of the gun and I
then set the trigger [Accused demonstrates with the gun.] Why did you remove the safety catch? - I set the trigger to reduce the pressure needed for firing.
How were you holding the rifle?
[Accused demonstrates by holding the gun at carry and in a pointing
position]"
Appellant said that while the members of the hunting party were alighting
from the bakkie he was pointing his gun at those at the back of it. The record then
proceeds thus:
"Defence:
6 As they were coming out how was the gun?
Ace:
I moved my gun with the last person.
Defence:
Up to what point did you follow this person who was moving down?
Ace:
After the last person from the back had come down I saw a person pass me and that
is when it occurred to me that not everyone in the front seat had alighted.
Defence
When it occurred to you that the people in the other vehicle had not come what
happened?
Ace:
I turned around verv fast and was tripped by some grass and in the process I lost
balance and immediately after that the gun went off."
The appellant said that his brother told him when they were herding the hunting party into their vehicle that "someone had fallen
down" Prior to that he had not seen the deceased at all. I Ie then looked at the deceased and saw that he was dead.
Appellant admitted not having mentioned his losing his balance and tumbling over a tuft of grass in his statement to the District
Commissioner, as he did not consider that aspect " as important"
Under cross-examination appellant conceded that his intention was to use his
8
I put on the safety catch when I was approaching them because even though they
were not armed I was not sure whether they did not have small fire-anus which thev
could have easily concealed.
State:
Is it your case that you tripped on some turf?
Ace:
The firearm went off because I stumbled over some turf.
State:
Would I be spot on to suggest that this fact that you stumbled on the turf and your
gun went off accidentally is the triumph [sic] card of your defence?
Ace:
It is true.
State:
You did not tell the Judicial Officer that you slipped on some turf?
Ace:
Yes I did not tell the Judicial Officer
State:
Because according to you it was unimportant?
Ace:
Yes."
Re-examined on this aspect appellant said this:
"You told the court that you did not know that once the trigger was set the
9
gun could go off if it was shaken? Yes."
The crux of this case is whether the appellant's gun went off accidentally. If it did, the appellant should not have been convicted.
This appears clear from Section 8[ 1 ] of the Penal Code which states that:
"8[ 1 ] Subject to the express provisions of this Code relating to negligent acts
and omissions, a person is not criminally responsible for an act or
omission which occurs independently of the exercise of his will or for an
event which occurs by accident" [my underlining]
The learned trial judge, correctly in my view, held that where a defence of
accident is raised by an accused person, the onus rests on the prosecution to prove
beyond reasonable doubt, that the event was brought about by the criminal
negligence of the accused. It has to negative the accused's claim that his conduct in
question occurred by accident.
Dealing with that defence, the learned trial Judge said:
"Turning to the evidence in this case, I do not believe the accused's assertion that the gun went off, as a result of his stumbling
over a turf or stumps of grass, and that, in order to regain his balance, set off the rifle by banging the side of the weapon with
his left hand. In my view, the accused's demonstration with the gun of the occurrence, which said demonstration
10 ended up with the muzzle of the gun pointing to the sides, when compared
with the fact that the 172cm tall deceased was hit on the right nipple, renders
the accused's claim not only incapable of belief, but also ludicrous. The
absurdity in this claim is carried further when one considers that the bakkie of
which the deceased was the driver, was parked between the accused and the
deceased, and if indeed, was shot immediately he got out of the driver's cabin,
the bullet would either have hit the canopy of the driver's compartment or the
head of the deceased, but certainly not that part of the chest immediately
above the nipple. I have looked at the photo album [exhibits L.L1-L5] which
shows , inter alia, the place where the shooting incident occurred, and I find
no turf or stumps of grass there. The place is as plain and arid as the desert.
It is to be noted that no a single question was put to any of the prosecution
witnesses regarding the topography of the place where the shooting incident
occurred.
I watched the accused's demeanour throughout these proceedings, and formed
the impression that he is no simpleton. In my opinion, he introduced the story
of how the gun went off after listening to the ballistics expert's opinion to the
effect that as the trigger pull of the rifle was set at Vi lb, a blow to the gun
would be sufficient to set it off, but not a sudden movement of the holder's
body or the rifle itself. It is to be noted that the accused's demonstration with
the rifle before this court on this issue, closely followed the demonstration
given by the ballistics expert with the gun.
11
I agree with Mr. Rammekwa, Learned Counsel for the State that the issue of accident raised up by the accused is an afterthought. As
deposed to by the accused under cross examination, if at the time of giving an account to the judicial Officer, of events which led
to the firing of the gun, he did not consider that aspect to be important, then, commonsense and logic dictate that he only thought
of putting up such a story after listening to the expert opinion, expressed by Mr. I Ialey ceteris paribus, the human mind does not improve with the passage of time.
I reject the accused's story as to how the rifle went off as palpably false and incapable of being believed by anyone."
The learned Judge went to say
"I do not believe the accused's averment that he was unaware of the deceased's position immediately before the gun went off.
What I find as true and accept, is what he told the Judicial Officer and recorded in exhibit G viz "... I ordered him out, the
gun I was holding went off.
The accused admits that he intentionally set the trigger in such a way that a light pressure would set the gun off. The gun firing
at the slightest pressure on the trigger pull cannot therefore be said to be a result which is caused by an unforeseeable occurrence.
On the contrary, it appears to me to be a result desired by the accused. I reject the defence of accident put by the accused. I
12 find as a fact that the prosecution has beyond reasonable doubt negatived the
defence of accident. The defence of accident therefore fails."
Mr. Phumaphi who appeared for the appellant submitted that the learned trial judge had seriously misdirected himself on the facts
and indeed had not properly understood the evidence. This, so Mr. Phumaphi contended, had disentitled the trial Judge from adequately
considering whether the appellant's version of events could reasonably possibly be true. In my view there is considerable substance
in Mr. Phumaphi's submissions. I shall deal with them seriatim.
Firstly, as one of the reasons for rejecting appellant's version as false the learned Judge said he had looked at a photo album, which
was admitted in evidence "which shows, inter alia, the place where the shooting incident occurred and I find no turf or stumps
of grass there. The place is as plain and arid as the desert." Phis court has also looked at the photo album and there is no
picture in it of the place where the shooting incident occurred. The photos are of the place where the buck was shot, and where it
was found; One photo shows a cartridge case lying on some bare ground but there is no clue as to where it was taken.No evidence was
given as to the topography where the shooting occurred. There is accordingly no basis for the trial Judges's finding that there was
no grass at the scene of the shooting.
Ms Solomon for the State conceded that the learned Judge had "gone too far", as she put it, in that finding.
Secondly, the learned trial Judge found that the appellant's version was
1
13
ludicrous as a demonstration by him had ended with the muzzle of the gun pointing
to the skies. There is nothing in the record to substantiate this finding. Only one demonstration by appellant is recorded and that
is recorded that "accused demonstrates by holding gun at carry and in a pointing position." I have no idea what "at
carry" means but nowhere is it recorded that appellant pointed the muzzle of his gun at the skies.
Thirdly, and probably one of the most important misdirections, appears from the passage where the learned judge says that the absurdity
of appellant's version is carried further "when one considers that the bakkie was parked between the accused and the deceased
and if indeed was shot immediately he got out of the driver's cabin, the bullet would either have hit the canopy of the driver's
compartment or the head of the deceased" but not his chest. I agree with Mr. Phumaphi that this shows that the learned Judge
did not properly understand the evidence. The evidence shows clearly that when the fatal shot was fired the appellant was some metres
behind the bakkie on its left hand side. PW1 was also some metres behind the bakkie on the right and the deceased after alighting
from the baldde had walked to a position at the right rear wheel of the baldde and some two metres from PW1. The baldde was therefore
not parked between the accused and the deceased. Moreover, the deceased was not shot immediately he got out of the driver's cab.
The evidence shows that he had walked from the driver's cab to the right rear wheel of the baldde. His chest at that stage would
have been in a position where a shot fired from appellant's gun, accidentally or otherwise, could have struck it, which, of course,
it did.
14
The above findings by the learned trial Judge arc inexplicable in the light of
a statement by him in a latter part of his judgment that, and I quote:
"I accept the prosecution's evidence that the deceased was hit by the bullet while walking towards the accused's vehicle and
at a spot near the right rear wheel of the baldde." The learned Judge also appears to have misconstrued what appellant said
in his
statement to the District Commissioner. This appears from that portion of his
judgment when he said:
"1 do not believe the accused's averment that he was unaware of the deceased's position immediately before the gun went off.
What I find as true and accept is what he told the Judicial Officer and recorded in Exhibit G viz "... when 1 ordered him out,
the gun I was holding went off."
It is obvious in my view that on a proper reading of his statement appellant was not referring to the deceased who was the driver
of the baldde but to one of the passengers. It must be remembered that appellant was on the left or passenger's side of the baklde.
The occupants were ordered out of the baldde. The appellant's statement is that he "realised one of them had remained in the
vehicle when I ordered him out the gun went off ." He could only have ordered a person out on his appellant's side of the baldde
i.e the passenger's side. Moreover, the deceased was at that time , according to PW1, already standing next to him at the right rear
wheel
15 of the bakkie.
The learned Judge was sceptical of PWl's evidence saying that "he set his face to inject inconsistencies into the prosecution's
case and to set the platform for the accused's defence." I lis evidence is, however, in almost all material respects, the same
as that of PW4, a friend of the deceased, who had supplied the hunting party with the baldde and on whose evidence the learned Judge
placed much reliance. I laving regard to this I find the learned Judge's strictures unjustified. In any event, however, the State
chose to call PW1 and his evidence formed part of the case appellant had to meet. It is clear from all the aforegoing that the learned
Judge's finding that appellant's statement that he did not know of the deceased's whereabouts prior to the shooting as untrue based
on what he said to the District Commissioner was a clear misdirection.
The trial Judge also found that appellant's version was an afterthought introduced after hearing the evidence of the ballistics expert.
He added that :
"It is to be noted that the accused's demonstration with the rifle before this
court on this issue closely followed the demonstration given by the ballistics
expert with the gun."
Nowhere on the record, however, does it appear that the ballistics expert ever gave any demonstration with the gun.
In any event, although appellant in his statement made four days after the event did not say specifically that his gun went off accidentally,
the implication is
16
that that is what occurred when he says 'when I ordered him out, the gun I was
holding went off."
The learned Judge's finding as to the appellant's version being an afterthought, apart from being purely speculative, is therefore
based on incorrect premises and on facts unsubstantiated in the record.
The only version as to how the shot was fired is that of appellant. No other witness could testify thereto. Could that version be
reasonably possibly true? The Lest in a criminal case is well-known. Is there a reasonable possibility that the appellants's evidence
may be true? The test has been applied in the courts of Southern Africa, including Courts in this country, for 60 years or more.
In Rex v Difford 1937 A.D 370 the South African Appellate Division said that even if an accused's version may be improbable he is entitled to his acquittal if there
is any reasonable possibility of its being true. In Rv.M 1946 AD 1023 at 1027 it was said that in applying the test the court does not have to believe the appellant's story: still less does it have to believe
it in all its details. It is sufficient if it thinks that there is a reasonable possibility that it may be substantially true. That
test has been consistently followed in the Courts of this country as well.
l:or the reasons I have set out. I agree with Mr. Phumaphi that the misdirections of the learned Judge caused him to close his eyes
to the test I have just enunciated. It is my view that on an analysis of all the evidence it cannot be said that appellant's version
may not reasonably be substantially true. There is indeed no
17 evidence or nothing on the record to gainsay it.
It is, of course, a fact that appellant did not tell the District Commissioner of his having stumbled on a tuft or stump of grass
but, as Mr. Phumaphi pointed out, no onus rested on the Appellant to prove anything. The onus rested on the State to negative his
defence of accident. I am not satisfied that it did so.
A question put to appellant's counsel during argument was whether, even if the gun went off accidentally, was it not negligence for
Appellant to have pointed a firearm at persons when the trigger was set to fire the gun at the slightest pressure on the trigger?
The test for negligence is an objective one viz would a reasonable person have realised the risk involved and taken reasonable steps
to guard against it. While it may be said to be dangerous to point a fire arm at a person with one's finger on the trigger it is
nowhere suggested that appellant did so or that he had his finger on the trigger at the critical time. 1 do not think that an ordinary
reasonable person, who was not a ballistics expert, would necessarily realise that a fire arm, even when lightly set, would go off
if it were accidentally struck or jarred. Indeed appellant said:
"I did not know that if you strike a fire arm it will go off. I only know it to go off when you pull the trigger."
I am accordingly unable to find that the State has proved beyond reasonable doubt that even on his own version, appellant was negligent.
The learned Judge in referring to Section 8 (1 ] of the Penal Code which I have cited above, rightly in my
- *
••
18
view, said that an accident is the result of an unforeseeable occurrence. I lis quotation
from Stephen's Digest of Criminal Law 9th Edition p 260 seems to be apposite viz that:
"An effect is said to be accidental when an act by which it is caused is not done with the intention of causing harm and when
its occurence as a consequence of such act is not so probable that a person of ordinary prudence ought, under the circumstances in
which it was done, take reasonable precautions against it."
Applying the provisions of Section 8[1] therefor I am of the opinion that appellant was entitled to his acquittal in the Court aquo.
The appeal accordingly succeeds and the conviction and sentence are set aside.
Delivered in open Court this 28th day of January 1997
P. H.. TEBBUTT Judge of Appeal
agree
W. H. R. SCHREINER Judge of Appeal
W.I.S. ALLANBRIDGE
Judge of Appeal
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1997/11.html
