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Dikwata v The State (Criminal Appeal No. 8 of 1999 ) [1999] BWCA 1 (1 January 1999)

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IN THE HIGH COURT OF APPEAL FOR THE REPUBLIC OF BOTSWANA HELD AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 8 OF 1999 HIGH COURT CRIMINAL TRIAL NO. 21 OF 1997
In the matter between:
MODISE DIKWATA   APPELLANT
and
THE STATE        RESPONDENT
Mr. E.W.F Luke for the Appellant Mr. F.K. Mpopang for the Respondent
JUDGMENT
CORAM: A.N.E. AMISSAH P.
K.R.A. KORSAH J.A. M. KUMLEBEN J.A.
KUMLEBEN JA
The Appellant was charged in the High Court (Reynolds J) with the murder of one Mmoloki Tiro. He was convicted of this offence and sentenced to ten years imprisonment. He appeals against both the conviction and the sentence.

Four prosecution witnesses gave their account of how the deceased met his death at the hands of the appellant. The appellant gave evidence in support of his claim that he had acted in self-defence. The onus was thus on the prosecution to prove beyond reasonable doubt that the killing was unlawful. Stated obversely, if it was reasonably possible that he did act in self-defence the appellant was entitled to an acquittal.
On the night in question both the deceased and the appellant attended a party, the latter assisting the host. The deceased had entered the venue without paying. An argument ensued and the appellant was asked to assist in removing him. He pushed him out of the hall. The court a quo thus described what followed :
"The next event was that the deceased pushed past the door-keepers and re-entered the hall at a rush. He rushed at the accused who had returned inside. The deceased launched an attack on the accused in the form of a karate or kick-boxer kicking action. This was described by witnesses as the deceased "flying" at the accused, with his body parallel to the ground, and kicking at the accused's head. There was no clear evidence as to the cause of this fracas thereafter, but one witness did state that the two had fought for some time, the accused striking at the deceased with fists, and the deceased continuing to kick at the accused in the manner described .... In his evidence in court, the accused said that he had been knocked down by the deceased's kick, and a man called Sewagodimo - one of the door-keepers - had thrown a knife to him. He was frightened about the fighting, and wanted to run away. As the friends of the deceased were nearby, and were preventing him from running away, he decided to stab the deceased so he could defend himself and get away."
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The blade of the knife penetrated the heart and the deceased died shortly afterwards.
This summary was based on the evidence of four prosecution witnesses and that of the appellant. The versions largely corresponded. Where they were contradictory, the learned Judge, after weighing up all the evidence, quite correctly accepted the account of the appellant although he had some reservation about its veracity in certain respects and thought it to be exaggerated.
He nevertheless held that the appellant had not acted in self-defence, expressing himself thus :
"I accept that the accused had some justification for adopting the role of "bouncer" at this party, and that he was not acting purely out of malice. His action in seizing the deceased and in pushing him bodily out of the premises was aggressive, however, and it was also humiliating to the deceased. It was my view that his act of removing a closed knife from his pocket - according to his second version-, of opening it and then stabbing at the upper chest of the deceased was grossly excessive in the circumstances. I cannot accept that he had no other means of defending himself or of avoiding any further conflict as he alleges. The accused is a large man, and it appears that he experienced no difficulty in pushing the deceased out of the hall. It is my view that he could have stopped this fight without much difficulty, or, if he considered it necessary, he could have retaliated in equal measure to the violence offered by the deceased.
It was clear that the accused had not been seriously injured, although I do accept that karate-type kicks can inflict considerable damage. In the circumstances, however, to resort to plunging this lethal weapon into a vulnerable part of the deceased's body as he did was, in my view, a grossly
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excessive reaction. Whereas it was clear that the accused had been provoked to an extent by the violent actions of the deceased, the deceased had been provoked by the actions of the accused as well. I do not consider that the subsequent attack by the deceased on the accused was such to deprive the accused of his powers of self-control."
This reasoning is faulty in a number of respects.
(i) The appellant said that in the course of the struggle, after he had been kicked and fallen down, a friend threw a knife to him which he caught and used to stab the deceased. Under cross-examination he did say that, having caught the open pocket-knife, he closed it and put it in his pocket. It is somewhat improbable that he would have been able to do so and thereafter remove it from his pocket, re-open it and stab the deceased. If, however, this is to be accepted it tends to prove that he only stabbed as a last resort and not that it was "grossly excessive." The probabilities favour his earlier account that as soon as the knife came to hand he used it. (Incidentally, one may infer as a probability that the bystander who threw the knife to him thought it to be a necessary expedient.)
(ii) That the appellant was a "large man" is an irrelevant factor. According to the post-mortem report the deceased was 1.7 cm in length and "moderately built." His weight is not recorded. He was two years older than the appellant, 21 and 19 years respectively. There is thus no proper comparison of their relative strength on
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record. This is, however, by the way. The important fact is that the deceased was a karate expert and the appellant was not.
It is true that the appellant pushed the deceased out of the entrance to the hall apparently without much difficulty. But this was before his "blood was up" and before his karate retaliation had begun.
Nor can it be said that the appellant could have stopped this fight "without much difficulty." This loses sight of a number of important features of the appellant's evidence, some confirmed, and none contradicted, by the prosecution witnesses. He was subjected to a prolonged attack of karate kicks. These involved kicks with both feet at a time when the body is airborne and more or less horizontal. It caused him to fall down several times. A bottle was used to assault him ("he tried to slash me with a bottle") and there was an attempt at throttling him.
The reference to "plunging a lethal weapon into a vulnerable part of the body" implies that he deliberately aimed the knife at the heart of the deceased. The evidence does not bear this out. A prosecution witness said that it was : "Backwards, back-hand blow across the centre of the chest" and the appellant said "I did not know where I stabbed him" and that he, the appellant, "left after I realised that I have stabbed him where it is serious."
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"In applying these formulations [in casu to determine whether the appellant acted reasonably] to the flesh-and-blood facts, the court adopts a robust approach, not seeking to measure with nice intellectual calipers the precise bounds of legitimate self-defence ...." Page 437 E.
In applying these principles to a full conspectus of the facts of this case as summarised above, and drawing the correct inferences from them, I am left in no doubt that there at least is a reasonable possibility self-defence has been established. The prosecution consequently failed to prove beyond reasonable doubt that the appellant acted unlawfully. He ought therefore to have been acquitted.
As a post script I should add that a great deal of evidence was led during a trial-within-a-trial relating to the admissibility of a confession. It was ultimately received in evidence. The correctness of this ruling need not be decided or commented on. Both counsel on appeal implicitly agreed that it did not contribute to the determination of the issue of self-defence and need not be taken into account.
The appeal is allowed. The conviction and sentence are set aside.
DELIVERED IN OPEN COURT AT LOBATSE ON THE 23rd DAY OF JULY 1999.
M. KUMLEBEN JUDGE OF APPEAL
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(vi) The learned Judge did not accept that "he had no other means of defending himself or of avoiding any further conflict "without any indication of what else the appellant ought to have done." The use of his fists to do so had proved to be of no avail. Nor was he able to escape by running away. Mr. Luke, in the course of an able argument, referred to undisputed evidence that the appellant was cornered or surrounded by allies of the deceased.
Section 16 [Cap. 08.01] of the Penal Code describes self-defence in these terms :
"Subject to the express provisions of this Code or any other law for the time being in force, a person shall not be criminally responsible for the use of force in repelling an unlawful attack upon his person or property or the person or property of anyone whom it is his moral or legal duty to protect if the means he uses and the degree of force he employs in so doing are no more than is reasonably necessary in the circumstances."
This definition reflects the common law in this regard as thus set out in S v Ntuli 1975 (1) S.A. 429 (A) 436 D-E :
"A may intentionally and lawfully apply such force as is reasonably necessary in the circumstances to protect himself against unlawful threatened or actual attack at the hands of B. The test whether A acts reasonably in defence is objective; see Burchel and Hunt, S.A. Criminal Law and Procedure, vol. 1, p. 278 S. v. Goliath,, 1972 (3) S.A. 1 (A.D.)atp. 11."
And in this decision it is stressed that:
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I agree
AMISSAH P.
KORSAH J.A.      agree

A.N.E. AMISSAH PRESIDENT


K. R.A. KORSAH JUDGE OF PPEAL

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