You are here:
SAFLII >>
Databases >>
Botswana: Court of Appeal >>
1997 >>
[1997] BWCA 7
[Database Search]
[Name Search]
[Recent Decisions]
[Noteup]
[Help]
State v Tumotumo (Criminal Appeal No. 29/96) [1997] BWCA 7; [1997] B.L.R. 30 (CA) (21 January 1997)
.PDF of original document
.RTF of original document
IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CRIMINAL APPEAL NO. 29/96
In the matter between:
THE STATE
Appellant
and
SHIMANE OARABILE TUMOTUMO
Respondent
Mr. Attorney R.S. Busang for the Appellant
Mr. Attorney E.W. Fashole Luke II for the Respondent
JUDGMENT
CORAM AGUDA JA
SCHREINER JA ALLANBRIDGE JA
AGUDA JA
The respondent was indicted with the murder on February 12, 1995,
of Mpho Masole before the High Court sitting at Palapye. He
pleaded not guilty. The defence told the Court that they were
admitting the facts as contained in the written statements of
certain witnesses, namely;
i. the witness who identified the body of the deceased to the doctor who performed the
2
post-mortem examination;
ii. the doctor who performed the post-mortem examination;
iii. the judicial officer before whom the appellant made a confession statement; and
iv. a Police Officer who was in charge of the investigation of the crime.
Thereafter the prosecution called three other witnesses who gave oral evidence after which evidence it closed its case. The defence opted not to call any evidence. In a reserved judgment delivered
on June 6, 1996 the Learned Chief Justice found the respondent not guilty and made an order of acquittal and discharge in his favour.
In a Notice of Application for leave to appeal dated July 1996, the Attorney General sought leave to appeal to this Court under the provisions of the Court of Appeal Act, Section 12(1). That application was granted by the Chief Justice on September 9, 1996. The question for determination is whether the Learned Chief Justice
was right to have made the order which he made. If that order was wrongly made, then this Court is asked to order a re-trial or make any other appropriate order.
The provision of Section 12(1) of the Court of Appeal Act would
3
appear very clear. The Section as far as it is relevant to this
case says that;
"The Attorney General
may appeal to
the Court of Appeal against any final
judgment of the High Court made in its
original jurisdiction in a criminal case,
with the leave of the High Court
on
any question of law."
As I have stated, the High Court has already granted leave; what
I now have to examine is whether the question which has been
raised is one of law. It seems to me that it is beyond any
shadow of doubt that the propriety or otherwise of a verdict
returned based upon facts found by the Court is a question of
law. But that question must be considered on the assumption that
the facts as found by the trial court are correct. In this type
of appeal, the Attorney-General is not permitted to controvert
any findings of facts as opposed to the inferences to be drawn
from those facts.
What all these boil down to is that in cases of appeals founded on the provision of Section 12(1) of the Court of Appeal Act, the prosecutor/appellant can only be heard on the basis that all the facts found by the trial court are correct. Therefore to succeed, such an appellant must be able to show that assuming that the findings of facts are proper the verdict founded on such findings are in law perverse. Beyond that he cannot be permitted
4
to argue that any of the findings of fact are erroneous.
Therefore in this case I must accept the findings of fact as have
been made by the Learned Chief Justice and consider whether the
verdict of not guilty returned on those facts is correct in law.
The findings are as follows in the words of the Learned Chief
Justice:
"At MmaMoporofiti's yard, there was a drinking party. At about 9pm the accused went there with a friend. The deceased and his friend were drinking around the area and were in the company of some young ladies. The evidence indicates that in the middle of that drinking, the two ladies wanted
to go home. The deceased was upset that they should leave after they had been drinking beer as he felt they owed him some favours, probably some sexual favours. On accosting the young ladies, the deceased was separated by the accused and his friend. Apparently
deceased did not take kindly to such attempts. Spring, a friend of deceased then started hitting the accused' friend. When the accused
tried to separate them, he was attacked. They fought the accused until his sister intervened to try and take him away from the fight.
She persuaded him to go back to his home but the deceased and Spring followed the accused to his yard piling insults after insults. In particular they were insulting him and his family. Although the sister had closed the accused in a hut, he obviously got upset at the continued insults. He then went back to find the deceased with MmaMoporof iti and the girl he was persuing. It is not clear where he got a broom stick but he had in his hand what looked like a broom stick. He hit the deceased once on the head and then left. It turned out that injury was a very severe one. It led to the deceased's death."
It is on these facts that the Learned Chief Justice returned a
5
verdict of not guilty of manslaughter, the prosecutor having
conceded the inappropriateness of a verdict of murder in favour of the respondent. It was the view of the prosecutor that the respondent hit the deceased the deadly blow because of the latter's words of insult passed to him and his family, which in law amounted to provocation. It is clear on the evidence as found that a defence of self-defence was not available to the respondent,
and therefore this was not, quite properly, raised by the respondent nor considered by the Learned Chief Justice. Had such a defence
been appropriate on the facts, and had it succeeded, then a verdict of not guilty would have been the only appropriate one. It seems clear from the judgment that the Learned Chief Justice founded the verdict which he returned on the defence of provocation. For he said "after hearing what the accused went through, I am satisfied that he (the respondent) was highly provoked." It is implicit in the conclusion at which he arrived that the act of the respondent which caused the death of the deceased was as a result of the provocation offered to the respondent by the deceased.
Two questions which now have to be answered are these:
(1) Was the defence of provocation available to the respondent on the facts of this case bearing in mind that at the time the judgment came to be written, the charge which the respondent was facing was one of
manslaughter; and
(2) If not was the Learned Chief Justice right to have returned a verdict of not guilty founded on that defence.
In answering the first question it is necessary to examine the
provisions of the Penal Code which are relevant in that regard.
It seems very clear from a reading of those provisions that the
defence of provocation is a defence to a charge of murder only.
It may of course be available when a trial court is considering
what punishment to impose upon a conviction for any offence
including one of murder or of manslaughter under the Penal Code.
The question here is whether the defence of provocation can be
pleaded against conviction for any offence other than the offence
of murder. Section 205 says that -
" (1) When a person who unlawfully kills another under circumstances which but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool,
he is guilty of manslaughter only."
The Code then goes further to lay down the conditions and
circumstances which must exist before there can be legal
provocation of the type under mention here. Such conditions and
7 circumstances are set down in Sections 205(2) and 206(2), but we
are not concerned with those here. Suffice it to say - and this
is the vital point - the defence can be considered only when the
killing would otherwise have amounted to the offence of murder
not when for any reasons it would in law have amounted to
manslaugher. In this case it is unnecessary to consider whether
in view of the facts and circumstances, a verdict of murder would
have been possible for the charge of murder had been abandoned.
As the Learned Chief Justice himself said; "the State has already
indicated that they could not press a charge of murder, but only
of manslaughter." It is quite clear therefore that the Court a
quo had accepted the position that the offence which the
respondent was then facing was one of manslaughter. On that basis
therefore the defence of provocation was no longer, in my view,
available to the respondent. Of course the defence continued to
be available to him if convicted and the appropriate sentence
came up for consideration.
My answer to the first question which I posed above must therefore be that the defence was no longer available to the respondent since the charge then standing against him was one of manslaughter, and no longer one of murder. The second question posed above is whether it was right for a verdict of not guilty
8
of any offence should have been returned. The answer to this
question is simple, and it is not in any way in doubt, namely, that such a verdict was not legally proper. For, Section 205(1) of the Penal Code quoted above says clearly that when in a charge of murder all the facts support the defence of provocation, an accused person would be guilty of manslaughter. There is no provision in the Penal Code or in any other Statute saying that provocation should be a defence to any other offence. Therefore the verdict of not guilty entered in favour of the respondent in this case is erroneous and cannot be allowed to stand.
Having come to the conclusion that the verdict of not guilty entered in favour of the respondent is erroneous, it now remains for me to consider what this Court should do. The Attorney General has asked that we should send this case back to the High Court to be tried afresh. The respondent has resisted this very vigorously. On this point I am in agreement with Mr. Fashole-Luke II that to order a retrial would amount to a breach of the age-long principle of justice, nemo debet bis puniri pro uno delicto (no one should be punished twice for one fault) sometimes referred to as the rule against double jeopardy.
In my view this is a not a proper case in which this court should
9
order a retrial. The whole trial proceedings are not a nullity,
and it will be unfair to the respondent to order him to face a
new trial. Apart from that it would be an unwarranted waste of
human and material resources. It seems to me that we must make
resort to the powers conferred on this court under the Court of
Appeal Act, Section 12(4)(a), namely -
"give such decision, or take such action as the High Court ought, in the opinion of the Court of Appeal, to have given or taken."
In this case the High Court ought to have returned a verdict of
guilty of manslaughter against the respondent, and this is what
I now enter. As for an appropriate order as regards punishment
which should be made, I bear it in mind that whilst the maximum
sentence which a conviction for manslaughter carries is life
imprisonment (Penal Code, Section 201), no minimum punishment is
prescribed. The Court therefore has the discretion as to what
punishment to impose. In this regard we listened to Mr. Fashole-
Luke II on behalf of the respondent, and after considering the
submissions which he made before us and all the facts and
circumstances of this case we have come to the conclusion that
a short custodial prison sentence of nine months will meet the
justice of this case. We were informed that the respondent was
in prison custody from February 12, 1995 to November 11, 1995.
We therefore sentence the respondent to prison for a period of
10
nine months with effect from February 12, 1995,
For all the reasons herein before given the appeal of the Attorney General is allowed. A verdict of guilty of manslaughter is entered against the respondent. He is sentenced to a term of imprisonment for 9 months with effect from February 12, 1995, but having been in custody for a slightly longer period than nine months, he is entitled to be released at once, and it is so ordered.
DELIVERED IN OPEN COURT THIS 21ST DAY OF JANUARY, 1997
T. A. AGUDA JUSTICE OF APPEAL
I agree:
W.H.R. SCHREINER JUSTICE OF APPEAL
I agree:
LORD W.I.S. ALLANBRIDGE JUSTICE OF APPEAL
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/bw/cases/BWCA/1997/7.html
