Mopati v The State (Criminal Appeal No. 16 of 1999 ) [1999] BWCA 11 (23 July 1999)

The deceased was a brother of the appellant. It is common cause that the deceased died as a result of a gun shot injury which was inflicted by a shotgun. It is also common cause that the appellant fired the shot that killed his brother. The only issue that arose for determination on appeal is whether the gunshot was inflicted intentionally or accidentally. The State contended was that the appellant shot the deceased with the intention to kill him. For this contention the State relied significantly on circumstantial evidence.

The picture painted by the evidence is the following: On the evening of 22 August 1995 the appellant and the deceased were sitting around a fire with certain other witnesses roasting meat. The deceased requested the appellant to pass him the salt. This apparently innocent request triggered an angry response from the appellant. According to the testimony before the court a quo the appellant said that the deceased had not attained an age when he could issue instructions to him (the appellant). It would appear as if the appellant was in an aggressive mood, because, without further ado, he stood up, went to the deceased and attempted to strike him with his fist. The deceased warded off the blow and in the ensuing struggle the appellant picked up a knobkerrie and attempted to hit the deceased with it.

Somehow the deceased was able to grasp the knobkerrie, wrench it away from the appellant and throw it outside the yard where they were sitting. One of the witnesses, PW2, reprimanded the appellant by saying to him " leave the child alone, how can you assault a child for asking you to pass salt to him." At this point the appellant and the deceased ceased struggling with one another and separated. The appellant went towards the hut whilst the deceased resumed his seat next to the fire.

The next incident that occurred was when those around the fire, heard or saw a stone being thrown which struck the deceased on his body. The stone came from the direction of the hut towards which the appellant had decamped. After being struck by the stone the deceased ran away, out of the yard. However, he was pursued by the appellant who had now armed himself with a shotgun. These two persons disappeared from sight into the night. Shortly thereafter the witnesses heard the sound of a gun followed by the deceased shouting words to the effect: "why are you killing me." Those who had been sitting round the fire then went out to see what had happened. They met the appellant at the entrance to the yard. He was carrying a shotgun and as he entered the yard he said to PW2 "my brother, you have just warned me and if I had heeded your advice I would not have done such a thing." According to PWl the appellant was crying at this time and said "I have killed my younger brother."

went to the scene with his two sons and PW2. On the way they met the appellant who accompanied them to the scene of the crime. PW3 said on arrival at the scene he asked the appellant what had happened and received an explanation from him to the effect that they had been fighting. He said he asked the appellant "if at all you were fighting with your younger brother how could you be armed with a gun." According to the witness the appellant did not respond. At this point PW3 ordered those present to apprehend the appellant and he tied his hands to his legs whilst he was in the sitting position. He said that the appellant appeared remorseful. The police officer who arrested the appellant said that when he interviewed him and enquired from him how the shooting had taken place the appellant responded by saying that he " only fired to scare the deceased and not to kill him."

That in broad outline was the evidence on which the State relied to prove that the appellant intentionally killed the deceased. The appellant himself testified. He said that he and the deceased had killed a duiker which they took home and proceeded to cook on the fire. He said that the deceased had placed the shotgun next to one of the poles that supported the hut and proceeded to cut a piece of duiker meat which he roasted on the fire.

Concerning the events which took place subsequently he says that the deceased said to him in harsh voice "give me that salt, man." The appellant said he reprimanded the deceased and called on him to ask politely for salt.

There was then a verbal altercation between him and the deceased. He said he picked up a stone and threw it next to the deceased to scare him. The appellant admitted that he then picked a piece of wood or stick which was next to the fire and warned the deceased that he would hit him. However the deceased grabbed the stick and threw it away. A verbal altercation followed in which the appellant said to the deceased that he would teach the deceased discipline. To this the deceased replied "voetsek with your discipline." He said at this point he left the deceased, went towards the hut, saw a gun leaning against a pole that supported the hut, picked it up and went towards the fireplace. Before reaching the fireplace he picked up a stone and threw it at the deceased to scare him. At this point the deceased ran out of the yard and he (appellant) chased him carrying the gun because, as he said, he "wanted the deceased out of sight.'⁷ They were barely two metres outside the entrance to the yard when he says he felt the deceased "holding the barrel of the gun." The appellant says he was unaware that the gun was loaded and - so he contended - he "forcefully and carelessly" pulled the gun from the deceased. When he did so the gun went off and the deceased fell to the ground holding his stomach. This was how the deceased came to be shot.

The court a quo quite correctly held that the issue to be decided was "whether the deceased died as a result of the gun going off by accident as contended for by the appellant or whether the death of the deceased was caused by the appellant by an unlawful act and with malice aforethought as

contended for by the State." In a carefully reasoned judgment the learned judge analysed the evidence and came to the conclusion that the appellant's version "that the gun went off by accident killing the deceased is beyond reasonable doubt false and I reject it." The court accepted the evidence of the State witnesses. It found the appellant to have been an evasive witness, and both by virtue of the probabilities and its credibility findings held that the State had proved beyond reasonable doubt that the appellant caused the death of the deceased by an intentional and unlawful act with malice aforethought.

Counsel for the appellant challenged these findings. He submitted that in view of the fact that nobody saw how the gun came to be discharged there was a reasonable possibility that the version deposed to by the appellant was true. If this were so the appellant was entitled to the benefit of the doubt and should have been acquitted. It was not sufficient, so he argued, that the explanation advanced by the appellant as to how the shooting took place was improbable. The court had to be satisfied beyond reasonable doubt that this version was false.

The problem with the version of the events testified to by the appellant was that it is in conflict with all the inherent probabilities. These indicate that on the evening in question the appellant was an aggressor. All the witnesses who testified confirmed that without any real reason he attempted to assault the deceased by striking him with his fist. When the deceased warded off this blow he attempted to assault him with a

knobkerrie. When this failed he threw a stone at him. Then the deceased decamped but not being satisfied by the fact that he has succeeded in chasing the deceased away, the appellant follows him armed with a shotgun. If his intention was, as he says, to scare him it is difficult to understand why, the deceased already having run away from him appellant found it necessary to pursue him or to do so after having armed himself with a shotgun.

If there were any doubt as to the guilt of the appellant this is removed by his subsequent behaviour. It is inconceivable if this had been an accidental shooting that he would have responded to the events in the manner described above. According to PW2 he says to him "my brother you have just warned me and if I had heeded your warning I could not have done such a thing." According to PW1 he said to him "I have killed my younger brother/' To the elder, PW3 he says that he and the deceased were fighting. To the police officer he explains the occurrence by saying that he fired the shot at the deceased to scare him and not to kill him. All these statements appear to me to be in conflict with the appellant's version. If the shooting had taken place by accident, it is inconceivable that on being questioned he would not have said that the gun had gone off accidentally. Moreover he actually admits to the police officer that he "only fired to scare him."

On the question of sentence appellant's counsel was unable to point to any misdirection in the reasoning of the learned judge. He confined himself to an argument that the sentence induced a sense of shock. It is true that this is a severe sentence. However, this court will only intervene if such sentence is startlingly inappropriate or manifestly excessive. See to this regard Mojadi v. State BLR 56 . This judgment delivered by Aguda J.A. and concurred in by Amissah P. and Murray ).A. outlined the approach to be adopted by an the appellate court when determining the propriety of a sentence imposed by a lower court. The reasoning of that court was the following:

The appellant as stated earlier has appealed against the imposition of that sentence. It is true to say that the question of the appropriate sentence to be imposed on a person convicted of an offence is primarily a matter at the discretion of the trial court and a court of appeal will not readily interfere with the exercise of that discretion. This court will not set aside the sentence imposed by the trial court merely because it feels that had it tried the case it would have imposed a somewhat different sentence. See R. v. Gumbs (1962) 19 Cr. App.R. 74; R. v. Ball (1951) 35 Cr.App.R. 164. As I understand the position, a court of appeal will not interfere with the sentence passed by a trial court except in the following circumstances:

See State v. Cooper 1974(2) B.L.R. 67. In addition it may be permissible for a court of appeal to interfere with a sentence passed by a trial court if it has before it fresh materials which were not available to the trial court. See R. v. Bennett (1968) 52 Cr.App.R. 514."

However, the aggravating features in this case cannot be overlooked. There was no cause for the appellant to act in a way in which he did. Even if there had been some insult intended in the use of the word "voetsek" by the deceased it did not merit the three assaults which appellant attempted to inflict on the deceased. Most seriously of all, to resort to the use of a firearm in the circumstances was so reprehensible that the court would be failing in its duty if it did not demonstrate its abhorance of this crime by imposing a very lengthy period of imprisonment.

IN THE COURT OF APPEAL FOR BOTSWANA HELD AT LOBATSE
Criminal Appeal No. 16 of 1999 High Court Criminal Trial No. F42 of 1996
In the matter of:
MAGODIMO MOMPATI Appellant
And
THE STATE Respondent
H. Assey for the Appellant
S. Tiroyakgosi for the Respondent

The next incident that occurred was when those around the fire, heard or saw a stone being thrown which struck the deceased on his body. The stone came from the direction of the hut towards which the appellant had decamped. After being struck by the stone the deceased ran away, out of the yard. However, he was pursued by the appellant who had now armed himself with a shotgun. These two persons disappeared from sight into the night. Shortly thereafter the witnesses heard the sound of a gun followed by the deceased shouting words to the effect: "why are you killing me." Those who had been sitting round the fire then went out to see what had happened. They met the appellant at the entrance to the yard. He was carrying a shotgun and as he entered the yard he said to PW2 "my brother, you have just warned me and if I had heeded your advice I would not have done such a thing." According to PW1 the appellant was crying at this time and said "I have killed my younger brother."

There was then a verbal altercation between him and the deceased. He said he picked up a stone and threw it next to the deceased to scare him. The appellant admitted that he then picked a piece of wood or stick which was next to the fire and warned the deceased that he would hit him. However the deceased grabbed the stick and threw it away. A verbal altercation followed in which the appellant said to the deceased that he would teach the deceased discipline. To this the deceased replied "voetsek with your discipline." He said at this point he left the deceased, went towards the hut, saw a gun leaning against a pole that supported the hut, picked it up and went towards the fireplace. Before reaching the fireplace he picked up a stone and threw it at the deceased to scare him. At this point the deceased ran out of the yard and he (appellant) chased him carrying the gun because, as he said, he "wanted the deceased out of sight." They were barely two metres outside the entrance to the yard when he says he felt the deceased "holding the barrel of the gun." The appellant says he was unaware that the gun was loaded and - so he contended - he "forcefully and carelessly" pulled the gun from the deceased. When he did so the gun went off and the deceased fell to the ground holding his stomach. This was how the deceased came to be shot.

contended for by the State." In a carefully reasoned judgment the learned judge analysed the evidence and came to the conclusion that the appellant's version "that the gun went off by accident killing the deceased is beyond reasonable doubt false and I reject it." The court accepted the evidence of the State witnesses. It found the appellant to have been an evasive witness, and both by virtue of the probabilities and its credibility findings held that the State had proved beyond reasonable doubt that the appellant caused the death of the deceased by an intentional and unlawful act with malice aforethought.

Counsel for the appellant challenged these findings. He submitted that in view of the fact that nobody saw how the gun came to be discharged there was a reasonable possibility that the version deposed to by the appellant was true. If this were so the appellant was entitled to the benefit of the doubt and should have been acquitted. It was not sufficient, so he argued, that the explanation advanced by the appellant as to how the shooting took place was improbable. The court had to be satisfied beyond reasonable doubt that this version was false.

If there were any doubt as to the guilt of the appellant this is removed by his subsequent behaviour. It is inconceivable if this had been an accidental shooting that he would have responded to the events in the manner described above. According to PW2 he says to him "my brother you have just warned me and if I had heeded your warning I could not have done such a thing." According to PW1 he said to him "I have killed my younger brother." To the elder, PW3 he says that he and the deceased were fighting. To the police officer he explains the occurrence by saying that he fired the shot at the deceased to scare him and not to kill him. All these statements appear to me to be in conflict with the appellant's version. If the shooting had taken place by accident, it is inconceivable that on being questioned he would not have said that the gun had gone off accidentally. Moreover he actually admits to the police officer that he "only fired to scare him."

On the question of sentence appellant's counsel was unable to point to any misdirection in the reasoning of the learned judge. He confined himself to an argument that the sentence induced a sense of shock. It is true that this is a severe sentence. However, this court will only intervene if such sentence is startiingly inappropriate or manifestly excessive. See to this regard Moiadi v. State BLR 56 . This judgment delivered by Aguda j.A. and concurred in by Amissah P. and Murray J.A. outlined the approach to be adopted by an the appellate court when determining the propriety of a sentence imposed by a lower court. The reasoning of that court was the following:

See State v. Cooper 1974(2) B.LR. 67. In addition it may be permissible for a court of appeal to interfere with a sentence passed by a trial court if it has before it fresh materials which were not available to the trial court. See R. v. Bennett (1968) 52 Cr.App.R. 514."

Botswana: Court of Appeal

Mopati v The State (Criminal Appeal No. 16 of 1999 ) [1999] BWCA 11 (23 July 1999)