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Moreo v The State (Criminal Appeal No. 38 of 1999 ) [2000] BWCA 14 (13 July 2000)
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IN THE COURT OF APPEAL OF BOTSWANA HELP AT LQBATSE
Court of Appeal Criminal Appeal No. 38 of 1999 High Court Criminal Trial No. 7 of 1997
In the matter between:
ODIRILE MOREO
Appellant
and
THE STATE
Respondent
Mr. C. Dahanayake for the Appellant Ms. K. Molome for the Respondent
J U D GM E N T
CORAM: A. N. E. AMISS AH P., J. H. STEYN JA N. ZIETSMAN JA
STEYN I A
Appellant was convicted in the High Court on a charge of murder. Extenuating circumstances having been found he was sentenced to nine
years imprisonment. Originally he appealed in person against his sentence. In a notice of appeal dated the 21st of October 1998, he asked that his sentence should be backdated to the 25th of November 1995, since which date he had been detained awaiting trial.
2
However, in a notice of appeal dated the 29th of April 2000, appellant amended his grounds of appeal to include an appeal also against his conviction. It was contended on his
behalf that he should have been convicted of manslaughter and not murder. We have therefore to consider his appeal both against his
conviction as well as his sentence.
It is common cause that appellant killed the deceased by stabbing her in the neck with a knife. The circumstances in which this occurred
are the following:-Deceased and appellant were lovers. Three days before the evening in question, deceased and appellant had a quarrel
about money. However they met at a shebeen prior to the fateful events referred to below. As to what occurred in the course of and
subsequent to these events, we are dependent on various statements made by appellant in this regard.
There are three relevant sets of statements made by him. One set was made on the evening in question to two state witnesses; one was
a confession to a District Commissioner on the 5th of December 1995 - 10 days after the events in question had occurred. The third statement is that which was tendered under oath by
appellant at his trial. I deal with each one of these.
PW2 is a cousin of appellant. On the relevant evening at about 10 p.m. he met appellant at Old Naledi the location where appellant
lived. Appellant told him that
3
he had stabbed his girl friend with a knife. He and a companion advised appellant that he should present himself to the police. According
to PW2 appellant showed him the knife. Appellant then went to surrender himself to the police.
PW3, a police officer, confirmed that at about 10 p.m. appellant and PW2 came to the police station. The latter told the witness that
he had brought appellant who had told him that he had killed his girlfriend. Appellant, who was present, confirmed that he had done
so, Asked whether he enquired from appellant why he had killed her, appellant replied as follows_-
"He told me that he found the deceased in the shebeen drinking traditional brew and further that he asked her to go to the house
and said she refused to go saying that she was still drinking. Later they left to their place and on the way the deceased told him
that they should terminate their love affair, he further alleged that the deceased started assaulting him, she clapped him and also
she injured him."
He sent appellant to the hospital to determine whether he had been injured. A medical report was handed in by consent. It reflects
that appellant had "a small superficial abrasion on (the) bridge of the nose" and a "painful right cheek." A
blood sample was taken from the deceased. This determined that deceased had 345 mg of alcohol per 100ml of blood and was drunk at
the time of her death.
4
In cross -examination PW3 conceded that he remembers appellant saying that the deceased was the first to attack him by throwing stones at him. He could not remember him saying that he had stabbed the deceased
accidentally. Appellant had also told him that the deceased had left their home for three days before the incident, that he did ask her to go home with him and that on the journey home they had quarreled.
Finally when asked whether appellant had told the witness and the judicial officer in his confession that he had no intention of killing the deceased, he affirmed that appellant in fact said so. He later resiled from this statement.
As indicated above appellant made a confession which was reduced to writing before a judicial officer 10 days after the events in question. When questioned by the district commissioner if he (appellant) had
any injuries, appellant replied as follows:-
"Yes, I have sustained injuries by the woman I was in love with. She stoned me between the eyes and on the right of the cheek."
The Judicial officer recorded in brackets, "(scars are there)." Because of the importance of the confession statement I record it in full. In it the appellant said:-
5
"I have been in love with Kgalalelo Sentlhaga since 1983. We stayed at Old Naledi all the time. Kgalalelo hails from Sojwe whilst
I come from Kumakwane and works for Gaborone City Council.
On the 22.11.95 on a Wednesday Kgalalelo requested for money so that she could buy relish (meat) and my reply was I have no money.
This reply annoyed her and remarked that if I have no money we better end our love affair so that she could go and look for a better
boyfriend who would be in a position to give her money. Kgalalelo then decided to leave whilst resting on the bed. We then met at
a Shebeen on the 25.11.95. This is where still water is sold and is in Old Naledi. Kgalalelo came to me and requested that we go
home. I replied that I was still drinking my brew. She bought hers and shared with my aunt. After finishing their drink my Aunt decided
to go home and Kgalalelo entered a yard next to where we were drinking. I later followed her with intention of calling her to go
home. She resisted and I pleaded with her and then we went home. On our way we quarreled. We were all drunk but I think I was much
better. She picked up a stone and stoned me in between the eyes and sustained an injury. She also beat me on the right cheek which
also sustained an injury. I then took my knife trying to scare her only to find myself having stabbed her below the shoulder of the
left and below the breast of the same side. She started crying and felt down. She stopped crying and then I realised I had done something
dangerous. I went to report at the Police station and on the way I threw the knife away and I also met with my cousins and asked
them to accompany me to the police to report this mishap. These were Rabasimane and Sehwisana. The incident took place at around
7 p.m. The Police took a statement from me and I exactly told them the above story.
On the following day Police and I went to look for the knife but we did not locate it. I had no intention of killing Kgalalelo."
6
In his testimony appellant confirmed that he and the deceased were lovers and that he had two children by her. Three or four days
before the relevant evening she had left the common home. She had asked appellant for money which he was unable to give her. According
to appellant the deceased said that it would be better for her to go and look for a man who can give her some money. She left him
and she slept out of the house for three days. On the 25th of November 1995, the deceased found him (appellant) at the drinking spot - a shebeen. They had some liquor, left to go home together
and on the way they quarreled.
When asked what they were quarreling about, appellant replied as follows:
"She said that she has heard that I am sleeping with another girl and I said to her that what can I do because you have rejected
me, she became annoyed and she slapped me and I got angry and kicked her on the buttocks and she picked up a stone and hit me between
the eyes and on the cheek with another stone then, I took out the knife in order to cut a stick to whip her, and I thought she will
be afraid when she saw a knife and not come to me. She just came to me and I tried to push her and I ended up having stabbed her
and I had nothing to do because we were drunk and I decided to go to the police to report and on the way I threw away the knife because
I thought the police will beat me for it.
He went to say that he had no intention of killing the deceased and had plans to marry her. They had in fact been living together
fori 1 years and had two children.
7
In cross -examination he said that he took out the knife to frighten the deceased. He alleged that he only stabbed her once, although
he told the judicial officer that he had stabbed her twice.
The post mortem revealed one stab wound in the neck and three incised wounds, two on the left fore arm and one on the left hand. There
was also an abrasion on the front side of the left upper arm. Death was due to the stab injury of the neck.
As can be seen from the cititaion of the various statements made by appellant there were significant differences between the three
versions. Thus e.g. appellant introduced into his evidence during the trial for the first time a version that seeks to explain that
he drew his knife i.e. in order to cut a stick with the intention to beat his lover. It is improbable that he would not have availed
himself of the opportunity to mention this fact - which would tend to diminish the gravity of his offence - either to PW2, PW3 or
to the judicial officer.
In this regard, the trial court made the following observations: "The accused's various stories conflict with each other, and
the evidence given in court as to the reason for extracting the knife is considered to be ridiculous, and it is rejected." The
trial court also rejected a belated attempt made by appellant to assert that he stabbed the deceased accidentally or that he did
so in self-defence.
8
The court did find, however that the deceased was aggressive and that she had
indeed provoked appellant. It goes on to find however that:
"Even accepting that the cumulative effect of his insulting words and aggressive conduct amounted to considerable provocation,
I find that his reaction was wholly unwarranted."
The court accordingly rejected the contention that the provocation could serve as a justification for reducing appellant's guilt and
entitle him to be found guilty of manslaughter and not of murder.
The court also found that although appellant had consumed alcohol, he was not sufficiently intoxicated that "he was unable to
tell right from wrong or that he did not know what he was doing."
Having considered all the relevant facts the trial judge then concluded as follows:
"As a result of the foregoing considerations, it is my view that to stab another person with a lethal weapon such as the knife
described by the accused here must inevitably show an intent to do that person grievous harm at least, and in the circumstance applicable
here, an intent to cause the death of that person. This conclusion places the accused's acts squarely with the definition of malice
aforethought as specified in the Penal Code, Section 204."
9
I am satisfied, in all the circumstances, that the accused intentionally and with malice aforethought stabbed the deceased with a
lethal weapon, thereby inflicting the wounds which resulted in her death. In the result I find accused guilty of murder as charged."
Counsel for appellant contended that the court erred in not finding that the cumulative effect of the provocation and the liquor appellant
had consumed was sufficient to negative the inference from the proved facts that appellant had indeed intended to kill his wife.
He also submitted that the incised wounds on the arm and hand of the deceased could have been caused by a single blow with the knife
and could have taken place in an attempt to ward off the assault with the knife perpetrated on her.
lam inclined to agree with defence counsel that the various incised wounds were caused by the appellant's knife when the deceased
warded off his attempt to stab her on her body. However, it is highly improbable that they would have been caused by a single stab
with a knife. It must be borne in mind that appellant in his confession stated that he had stabbed the deceased twice, although he
subsequently sought to retract this admission. In fact the persistence of the appellant, after three blows with his knife had been
warded off, to stab the deceased once again is a factor which underscores the correctness of the decision
10
by the court a quo that appellant was guilty of murder and not of culpable homicide.
There does not appear to be misdirections in the trial court's reasoning to which counsel could point us. We are satisfied that appellant
was correctly convicted of murder and the conviction is confirmed.
Extenuating circumstances were found and summarised as follows by the court:
"The Sate has very properly conceded that there were extenuating circumstances in this case, and Mr. Rugwaro has outlined these
circumstances in his address to the court. As I have said in the Judgment above, I accept that the accused was intoxicated to an
extent. The alcohol he had consumed would no doubt have affected his behaviour, and he would perhaps have acted in a different manner
to his normal behaviour. I also consider that he and the deceased had experienced a strained relationship. On this particular night
the deceased had provoked him and had possibly flaunted her unfaithfulness towards him. She had also retaliated against his slap
by throwing stones at him. In the circumstances I find that extenuating circumstances are established."
Concerning sentence appellant's counsel submitted that in all the circumstances, more particularly the drunkeness of the accused and
the appellant as well as the
11
provocation to which he had been subjected, an effective sentence of 12 years imprisonment was excessive. I say an effective sentence
of 12 years because appellant had been in jail pending trial for 3 years by the time he was sentenced to 9 years imprisonment. He
urged us decree an effective sentence of 9 years by ordering the sentence to be backdated to the date of appellant's arrest and detention.
The practice in this jurisdiction appears to be to backdate sentences. This is done to ensure that an accused person is not punished
excessively, in as much as the period awaiting trial whilst in prison may be overlooked by the sentencing court.
There is no such possibility in the present case. The presiding Judge says the
following in his judgment:-
"In assessing sentence I have taken into account that he has been incarcerated for a considerable period of time. In the circumstances
the accused is sentenced to undergo imprisonment for nine years. The sentence will take effect as from today."
When passing sentence the court specifically directed that the nine years imprisonment imposed would be effective "from today's
date" (8th September 1998)
Whilst a consistent sentencing practice is advisable, it is not an irregularity for a presiding officer not to follow it. Provided,
however, that it is clear that he took into
12
account the period of imprisonment served by an accused prior to the date on which the sentence is imposed. This the court in casu clearly did.
It follows that we can only interfere with the sentence on the well-known grounds, e.g. that it is manifestly excessive or that the
trial court overlooked material facts or misdirected itself. Whilst the sentence is indeed severe it is not in our view so excessive
as to merit intervention.
For these reasons the appeal is dismissed and the conviction and sentence are confirmed.
DELIVERED IN OPEN COURT THIS 13th DAY OF JULY 2000
J. H. STEYN_
JUDGE OF APPEAL
I agree
A. N. E. AMISSAH PRESIDENT
I agree
N. ZIETSMAN JUDGE OF APPEAL
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