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Busi v The State (Criminal Appeal No 24/96 ) [1997] BWCA 9; [1997] B.L.R. 69 (CA) (28 January 1997)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Court of Appeal Criminal Appeal No 24/96 High Court Criminal Case No. 7/94
In the matter between:
RICHARD BUSI     Appellant
and
THE STATE
Mr. C. Dahanayake for the Appellant Ms P. Solomon for the State
JUDGMENT
CORAM: A. N. E. Amissah, P T. A. Aguda J.A J.H. Steyn J.A P. Tebbutt J.A Lord Cowie J.A
AMISSAH. P:
The appellant, Richard Busi, was charged with the murder often persons, the unlawful wounding of six others and the arson of a ward of the Lobatse Mental Hospital. All the deceased and injured persons as well as the appellant himself were inmates of the Hospital at the material time. All the alleged offences charged took place in one tragic transaction on the evening of 11 December 1992. The indictment in the case was dated 18 April, 1994 and the trial before Barrington-Jones, Acting Chief Justice, commenced on 1 September 1995. The case of the prosecution was briefly that on the evening of 11 December, 1992 the appellant had collected the bedding of his fellow inmates of the Hospital ward, piled them together in the ward and set them on fire. The ward was locked up. Most of its occupants were asleep at the time the fire started.

2 They could not escape the conflagration. Apparently the locked door could not be opened in time when the alarm was raised because it was defective. It had eventually to be broken. Those of the inmates who survived, at one time during the blaze lost consciousness. The ten victims named in the prosecution charges perished in the fire. The other victims in the unlawful wounding charges suffered serious burns as a result of the fire.
At the trial, the prosecution called two witnesses. The first was the psychiatrist specialist who testified to the fact that the appellant suffered from mania. This disease he described as one of the mental disturbances which causes change in the mood and state of the sufferer. He becomes subject to occasional bouts of irritability, has an unusual appetite, a lot of energy and a belief that he communicates with the gods or the dead. Jowitt's Dictionary of English Law [2nd Edition, 1977] simply defines the disease as "mental alienation" The appellant had been a patient of the psychiatrist specialist since October 1990. Under treatment, the appellant improved but whenever he ceased to take treatment he suffered a relapse. Under cross-examination the psychiatrist specialist gave the opinion that the appellant was fit to plead.
The second witness was one of the mental patients of the ward who survived the fire. His evidence was that on the fateful night one of the inmates of the ward requested the nurses not to put out the light in the ward but the nurses ignored the request. Sometime after that, the person borrowed a match from another inmate, collected the mattresses and blankets of his fellow-mates, most of whom were asleep, piled the bedding in the middle of the ward and set fire to it. The resulting blaze was so huge that the witness and the two inmates who were awake at the time did not even attempt to put the fire out The witness spoke of the person who asked the nurses not to turn off the lights borrowing the match and collecting the bedding from the other mental patients, piling it up and setting it on fire. But he was unable to connect the appellant with the person. The witness could not describe the person because, as he said, he could not remember

3 the face. The witness himself had suffered such injuries from the fire that he had been admitted at the Athlone Hospital in Lobatse for one month. According to him, all the inmates of the Mental Hospital ward were at the material time asleep except himself and two others.
At the end of the evidence of the second prosecution witness, prosecuting counsel asked for an adjournment in order to trace the other witnesses "on the tendered summary of evidence as this particular witness had probably not been very good." There then ensued a discussion between the trial judge and both Counsel for the prosecution and the appellant on the possible witnesses who could prove the case and the period of adjournment required. The record shows that the case was at this point simply adjourned without a date fixed for continuation.
On 6 June 1996, prosecuting Counsel applied to the Court for leave to withdraw the
charges against the appellant. The Court ordered, after hearing both Counsel, that the appellant
"be discharged and liberated". It is this order which has given rise to the present appeal. The
notice of appeal which was filed on behalf of the appellant sought an order quashing the decision
of the Court and entering a verdict of not guilty and an acquittal on the following grounds:
"1. That the Court a quo erred in law in permitting the prosecution on the facts and circumstances of this case to withdraw indictment against the appellant.
2.      
That the Court a quo misdirected itself in not acting in terms of section 150 (4) ofthe Criminal Procedure and Evidence Act (Cap. 08:02) when an application was made by the defence for the appellant to be acquitted.
3.      
That the provisions of section 10 ofthe Constitution of Botswana were violated when the Court a quo permitted a withdrawal of indictment leaving it open to the prosecution to reindict the appellant for the same offences".
The crux ofthe appeal lies in the distinction between an acquittal and a discharge. According to
Jowitt's Dictionary of English Law,
"The term [acquittal] applies to offences tried on

4
indictment, and means discharge from prosecution upon a verdict of not guilty, or on a successful plea of pardon or autrefois acquit or autrefois convict. Acquittal is a bar to any subsequent prosecution for the same offence".
It is in this sense that the word "acquittal" is also understood in the Criminal Law and Procedure
of Botswana. Thus, the fundamental rights and freedoms conferred upon the individual by the
Constitution include, under the provisions to secure the protection of the law, section 10 (5) and
(6) which says the following:
"5 No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial for that offence, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal.
(6) No person shall be tried for a criminal offence if he shows that he has been pardoned for that offence."
By contrast, a person is discharged from arrest, prosecution or imprisonment when he is set at
liberty. As stated by Jowitt in connection with the various meanings of the word "discharge" in
the law, "in no case is a discharge a bar to a further trial".
It was contended by Counsel for the appellant that having regard to the circumstances of
this particular case the appellant should have been acquitted and not merely discharged of the
charges brought against him. The fact that the eye witness to the incident who said that all the
inmates of the mental ward were fast asleep except two persons, which Counsel took to mean the
witness and the person who caused the fire, was drawn to our attention to show that there were
no more eye witnesses whom the prosecution could call in support of the case. It was further
pointed out that as the eye witness called could not identify appellant as the person who caused
the fire there was no other evidence which connected the appellant with the offences charged.
Counsel argued that the case had taken so long to come before the court and taken more time in

5
the course of the trial up to the stage where the prosecution withdrew it, that the order of
discharge without an acquittal has meant that the appellant was faced over an uncertain period
of time with the possibility of fresh charges being brought against him. Such a position was
oppressive and contrary to section 10(1) of the Constitution. It was also argued that section
150(4) of the Criminal Procedure and Evidence Act [Cap. 08:02] entitled a person who has been
called upon to plead to an indictment to demand that he be either acquitted or found guilty unless
by leave of the court and for reasons stated on the record of proceedings the prosecution
withdrew the case before the close of the case of the prosecution. In this case, according to the
argument, no reasons were given in the order of the learned trial judge recited earlier for the
discharge.
Section 10(1) of the Constitution provides that
"If any person is charged with a criminal offence, then unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established or recognised by law."
Obviously the aspect of the subsection to which Counsel for the appellant wants us to pay
attention is the need for a hearing within a reasonable time. In that respect Counsel submitted that
although the offence took place in December, 1992, the trial did not begin until April 1994 and
then the withdrawal was effected in June 1996. There would not, according to Counsel, have
been a compliance with the Constitutional provision if the appellant were merely discharged with
a potential liability to face trial again on the same charges at some unknown future date.
In my view, regard ought to be had to the fact that what the provision requires is not that
the charges be heard in a specific time but that the hearing should be within a reasonable time.
Such time would therefore vary depending on the circumstances of each case. In determining
what is a reasonable time, the period taken to bring and to prosecute the charge will be one, but

6 only one, of several factors to be taken into account. The nature of the particular criminal act, the charge, the availability of witnesses, the efforts made to prosecute the charge expeditiously, the availability of judges or magistrates, will all be factors which would have to be taken into consideration. In this case, the delay apparently was due to the fact that some of the witnesses and the appellant himself were so badly injured by the fire that they were admitted into hospital for long periods. Some of the witnesses have since the event regressed in mental condition and the whereabouts of some became unknown so that their production before the Court at an earlier period became useless or impossible. It seems to me that in these circumstances, section 10( 1) of the Constitution cannot be said to have been infringed by the time that the application was made by the prosecution to withdraw the case. If that view is taken, the acquittal by the learned judge of the appellant solely on this constitutional point would neither be inevitable or justified.
The Judge to whom the application was made had a discretion to exercise after looking at the matter as presented to him by the two sides. Either order contended for was open to him as long as he exercised his discretion judicially. If the appellant was acquitted or discharged from the case the appellant became a free man, and from that time ceased to be faced with criminal charges. In the case of a discharge without an acquittal, the prosecution may, as I have said, prefer fresh charges. In this case, it may be that if the prosecution were to prefer criminal charges against him on the same facts again, the appellant would have a case to make under Section
10[ 10] of the Constitution, depending on the time taken to bring the fresh charges. But that situation has not arisen and I make no ruling on the point. What I can say is that at the time of the withdrawal of the charges, a complaint of undue delay in the prosecution was not justified because of the reasons advanced in explanation of the time taken.
I pause briefly in order to point out that I am aware of Section 51 (3)(c) of the Constitution which states that, "The Attorney-General shall have power in any case in which he

7
considers it desirable to do so to discontinue at any stage before judgment is delivered any ....
criminal proceedings instituted or undertaken by himself or any other person or authority". I do
not discuss the implications of that provision further in this case because the respondent, who
could have used that power, has at no time contended that the case was withdrawn as a result of
his exercise of that power. In any case, there is nothing in the Constitutional provision which says
that if a criminal case is terminated by the exercise of that power the result should be the acquittal
and not the discharge of the accused. What the respondent has contended is that the withdrawal
was effected under the Criminal Procedure and Evidence Act. The real substance in this appeal,
therefore, lies in the question whether the provisions of the Criminal Procedure and Evidence Act
were complied with in the discharge of the appellant on the withdrawal of the charges by the
prosecution. To find that out, we have to turn to Sections I50[4] and 278[3] of the Act.
Section 150[4] provides that:
"Any person who has once been called upon to plead to any indictment or summons shall, except as is specifically provided in this Act or in any other law, be entitled to demand that he be either acquitted or found guilty.
Provided that in a magistrate's court, by leave of the court and for reasons to be stated on the record of the proceedings, the prosecution may withdraw the case at any time before the close of the case for the prosecution, in which case the accused person shall be discharged without prejudice to his being charged again for the same offence; the prosecutor may withdraw the case at any time after the close of the case for the prosecution before judgment by leave of the Court and for reasons to be noted on the said record in which case the accused shall be acquitted and discharged."
In all criminal cases, whether tried in the High Court or the magistrate's court in
Botswana, therefore, when the accused has been called upon to plead to the indictment or
summons, he is, unless the law specifically says otherwise, entitled to demand that the trial court
should proceed to his acquittal or conviction. On the face of the main provision in Section 150[4]
of the Act, once the accused has pleaded to the charge, the court must continue with the case until
he is either convicted or acquitted. The proviso to Section 150[4] which deals with the

8
withdrawal of the case applies only to proceedings in the magistrates' courts. But the effect of
the proviso is extended to trials in the High Court by Section 278 of the same Act which applies
to trials generally, including trials in the High Court. Sub section [3] of the Section states that:
"Nothing in this Section shall be construed as depriving the Attorney
General, or the public prosecutor with his authority or on his behalf, of the
right of withdrawal of any indictment or summons at any time, and lodging
a fresh indictment or issuing and serving a fresh summons for hearing
before the same or any other competent court:
Provided that the proviso to Section 150[4] shall apply mutatis mutandis to such
withdrawal."
Thus in whichever court a prosecution is undertaken, the Attorney General, or a prosecutor acting
with his authority or on his behalf, may withdraw the charges. But if the charges are to be so
withdrawn, the procedure for, and consequences of, such withdrawal must be in accordance with
section 150 (4). The consequences of a withdrawal depend on whether the withdrawal is before
or after the close of the prosecution case. If before the close of the prosecution case, the court
may grant him liberty, by discharging the accused, to bring back identical charges or other charges
of which the accused might have been convicted on the original charges. Alternatively, the Court
may for reasons given, acquit the accused. If, however, the charge or charges are withdrawn
after the close of the prosecution case, the court must not only discharge the accused but must
also acquit him. Fresh charges on facts on which the court could have convicted the accused at
the original trial would in that case, be barred by law. Whether the leave to withdraw leads to
a discharge or to an acquittal, the reasons for the grant should appear on the face of the record.
It seems to me that these limitations in the Criminal Procedure and Evidence Act on the
Attorney-General's or other prosecutor's powers of withdrawing a prosecution mid-stream were
put in place in order to prevent him or persons acting on his behalf from holding the threat of a
fresh and better prepared case at some future but undetermined date in terrorem over the head
of an accused person against whom a successful prosecution could not be mounted at a first trial.

11
prosecution case "for reason to be stated on the record of proceedings." If this means that the reasons should be embodied in the order of the Court, then, of course, as I said before, the order made by the judge at the end of the proceedings on 6 June 1996 did not satisfy the requirement. But the provision does not say that the order should embody the reasons. It only says that the reasons should appear on the record. A reading of the whole record of proceedings cannot fail but lead to the conclusion that the reasons for the discharge rather than the acquittal of the appellant do in fact appear, as required by section 150(4), on the record. The appUcation to withdraw was made by prosecuting Counsel in the course of the prosecution case. Her request was specifically that the appellant be discharged. Counsel for the appellant had pointed out to the judge to whom the application was made, that in the circumstances of this case the appellant should be acquitted of the charges. Counsel for the prosecution thereupon drew the attention of Court to the relevant provisions of the Criminal Procedure and Evidence Act, namely, sections 150(4) and 278(3). Obviously, this was in support of her application for a discharge with liberty to come back. The reasons why she wanted a discharge were stated. On the basis of the competing requests by the two Counsel, Le., on the one hand, that there should be a discharge for the reasons given, and on the other, that the circumstances could only justify an acquittal, the Court decided to grant leave but only to discharge the appellant. I think all the material necessary to enable the judge to exercise a judicial discretion properly in this case was present before him. He was made aware by Counsel of the choice he had to make and the reasons therefor. Those reasons appear on the face of the record. The learned judge opted for a discharge. The fact that the order itself does not in my view, contain the reason for choosing that option does not violate the requirements of section 150(4) of the Act. Often in our Courts orders are made without giving reasons upon application. The orders are based on the appUcation of the parties or their Counsel supported by the reasons why the orders are wanted. Although the orders do not

9
The question at issue then is whether in this case the provisions of the proviso to section 150(4)
as applied to trial in the High Court were complied with.
The record of appeal placed before us discloses the following order which terminated the trial of
the appellant:
"Before the Honourable Mr. Justice Barrington-Jones at Lobatse this 6th
day of June 1996
UPON HEARING Mrs (sic) Attorney Solomon for the State and
Attorney Chula Dahanayake for the Accused and having read the
documents filed of record
IT IS ORDERED THAT The Accused be discharged and
liberated.
BY THE COURT"
The order indicates that Counsel were heard prior to its making. But it does not indicate what either Counsel said. Reading this order alone leaves the reader guessing what the reasons were for discharging and liberating the accused instead of acquitting or convicting him, as section 150(4) of the Criminal Procedure and Evidence Act entitled him to demand after his plea. At the time that the record of appeal was put before us, there was nothing on record which showed the reasons for granting the leave to withdraw the charges in this case with liberty to re-charge. Looking at the order of the Court a quo alone, I would be driven to the conclusion that the court had failed to comply with provisions of section 150(4) of the Act. At the instance of this Court, however, a search was instituted for the full record of the proceedings on 6 June 1996, the date on which the charges were withdrawn. That search produced a document in the handwriting of the learned trial judge recording the proceedings which preceded the making of his order. Apparently, that document had not been reproduced in the record of appeal because its transcription defied the ingenuity of the secretaries who had to compile the record. I cannot emphasise too stongly for the benefit of staff who have to compile records of appeal the utmost importance of including all significant material covering or related to proceedings or transactions

10
occurring before the Court a quo. If, as in this case, the handwriting of the judge a quo is too
difficult to transcribe then the original or at least photostat copies of the original manuscript must
be included in the record. If anything turns on that material on the appeal, the appellate court
would be obliged to seek what assistance it could find in deciphering the handwriting. In previous
cases where this court has been faced with difficulties over handwritten scripts by the same
learned judge, we have sent the document back to the judge for him to type out what he had
written and the judge has obliged. This time, however, that course is not immediately possible
as the judge is presently out of the jurisdiction.
Fortunately, my brother Tebbutt J. A., with the assistance of some of our secretaries was
able to make sense of the proceedings as recorded by the learned judge. The record reads as
follows:
"State Counsel asks for leave to withdraw charge against the Accused.
Defence Counsel submits it is not improper to do so but has to be
acquitted with ... it relief. Accused in custody over 3 V2 years awaiting
trial - unlikely will be any further witnesses and existing ones are mentally
disordered (SI80 CPE). Submit that in casu Accused is mentally ill
although said to have recovered. State Counsel S. 278(3) CPE - S150(4)
CPE. I am withdrawing case and so would ask that Accused be
discharged-
Reasons - all the witnesses were mentally insane - now regretful there is
none (others mentioned might have subsequently recovered)
By Court
The indictment against accused having been withdrawn it is
ordered that the Accused be discharged and liberated."
Indeed the record of proceedings with the arguments of Counsel taken down by the judge,
understandably in note form, captures in a nutshell the main arguments made by Counsel before
us in this appeal.
The question then is, is this a sufficient compliance with the proviso of section 150(4) of
the Criminal Procedure and Evidence Act? The subsection requires that leave to withdraw with
liberty to re-charge the accused should be granted only if the withdrawal is before the close of the

12 themselves contain the reasons for them, the reasons given in the applications are taken to be incorporated in the orders.

For the above reasons, I am of the opinion that the order discharging but not acquitting the appellant satisfies section 150(4) of the Act as the reasons for it appear on the record.
Since hearing the appeal in open Court, Counsel for the appellant has submitted additional heads of argument for the consideration of the court. I do not think that such practice should be encouraged by us. To a large extent the new heads regurgitate and repeat points already taken in argument on the appeal In any case those heads do not alter the view I have taken in the case.
I think the appeal should be dismissed.
It seems to me from the circumstances of this case that further prosecution may be unlikely. But it also seems from the evidence given at the trial that a possible objective of the State in bringing the prosecution was to ensure that the appellant was kept in custody to ensure that the public is safeguarded from a similar tragic occurrence in future as a result of his illness, and that treatment for the illness should be continued. I think it is in the interest of all that the appellant should continue with his treatment, and that whilst at liberty he should be persuaded to do so.
Delivered in open Court this 28th day of January 1997.
A. N. E. AMISSAH President

13

I agree
T. A. AGUDA Judge of Appeal


I agree
J.H.STEYN
Judge of Appeal


I agree
I agree
P. H. TEBBUTT Judge of Appeal
LORD COWIE Judge of Appeal

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