Harvey v The State (Criminal Appeal No. 21/99 ) [2000] BWCA 6; [2000] 1 B.L.R. 56 (CA) (27 January 2000)

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Harvey v The State (Criminal Appeal No. 21/99 ) [2000] BWCA 6; [2000] 1 B.L.R. 56 (CA) (27 January 2000)

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IN THE COURT OF APPEAL FOR BOTSWANA HELD AT LOBATSE
Criminal Appeal No. 21/99 High Court Criminal Trial No. 50/97
In the matter between:
SEPONONO HARVEY Appellant
And
THE STATE Respondent
Ms M. Tabengwa for the Appellant Mrs S. Mangori for the Respondent
JUDGMENT
CORAM: AMISSAH P. TEBBUTT J.A. LORD WEIR J.A.
AMISSAH P.

The appellant, Seponono Harvey, was tried and convicted of murder by the High Court. The case of the prosecution was that she had killed her boy-friend of long standing, one Lameck Moyo, by pouring a bucket of hot water over him while he was asleep. That the appellant killed the deceased, there can be no doubt. The evidence was that the deceased died six days after the incident from a cause which the pathologist described as toxaemia due to scalds. These scalds could only have occurred as a result of the pouring of hot water over the body of the deceased. The appellant did not contest these facts or conclusions. On the contrary, the case

she put forward was that she had poured the hot water over the deceased because she had, over a period of time, been subjected to persistent physical abuse by the deceased. She poured the heated water on him when she was at the end of her tether in order to show the deceased that he could not continue to treat her as he had been doing while demanding from her the services of a good wife which she invariably gave. Indeed, there was evidence that the act of pouring by the appellant of the hot water over the deceased had been preceded earlier that day by a quarrel in the course of which the deceased had hit her with a metal rod. There was also evidence that the deceased had before assaulted the appellant with a brick and a sjambok, resulting in injury to her forehead. The picture painted of the deceased was of a man who often used violence against the appellant. The defence case, therefore, was that the appellant at the material time lacked criminal capacity, as she was then suffering from a condition known as battered wife's syndrome which rendered her incapable of forming the intention required to constitute the offence of murder. According to the defence, in pouring the hot water over the deceased, the appellant acted impulsively, unable to control herself.

Psychiatric evidence of the appellant's ailment was given by one Dr. Paul Urian Ortho Sidandi, a Senior Specialist Psychiatrist at the Lobatse Mental Hospital. He was asked to examine the appellant by the police, and was called as a witness by the prosecution. Dr. Sidandi was asked in examination-in-chief about the reaction from a psychiatric point of view which a spouse who had been persistently beaten over a period of time would have. The answer was that "there would be resentment and anger on the part of the spouse being beaten." This anger and

resentment, Dr. Sidandi said, "would be ongoing". In cross-examination, Dr.
Sidandi said that he did not detect any "psychiatric condition" in the appellant. By
this he meant that the appellant was not suffering from a condition like depression,
schizophrenia, maniac depression psychosis. But the doctor also said that the
appellant gave a history of a person who suffered from battered wife syndrome. It
was a syndrome which referred to the actual abuse, which could consist of physical
or emotional abuse. Its effect could be to lower the morale of the person abused.
It could cause a lack of confidence and it could also result in retaliatory anger which
could be inwardly or outwardly directed. The anger would be inwardly directed
when the sufferer caused harm to him or herself, like killing him or herself. The
anger is outwardly directed when, as in this case, the anger is directed against the
abuser, or towards someone else. Thereafter followed this exchange of question
and answer:
"Ms Tabengwa: When you say when she poured the hot water it was an impulse what exactly do you mean?
PW2:     I am talking of impulsive act, meaning an act
without much planning being put to it. It happened at a spur of the moment.
Ms Tabengwa:     This impulsiveness is it also a moral consequence
of the syndrome.?
PW2:     It can be."
The learned judge concluded, upon considering the defence, that "in pouring the hot water on the deceased the [appellant] at least, intended to cause

him grievous harm/⁷ That was, in his opinion, sufficient to satisfy the mental element of the offence of murder. Accordingly he found the appellant guilty of murder as charged, and convicted her.

Against that conviction, the appellant has appealed on the following grounds:
"Ground 1

The court a quo erred in finding the Appellant guilty of the offence of murder in that the essential element of mens rea was not established beyond reasonable doubt.

Ground 2

The learned court erred and misdirected itself in holding that the Appellant was capable of having malice aforethought despite being a victim of the battered woman syndrome.

Ground 3

The court a quo erred and misdirected itself in that it did not give sufficient weight to the Appellant's mental state as caused by her suffering from the battered woman syndrome at the time of committing the offence.

Ground 4

The trial a quo was fatally flawed as a result of conducting the contempt of court proceedings State v. Maame Awuah and others

as part of this trial as they had the effect of clouding the court's objectivity thus rending (sic) it unable it (sic) to make an unbiased ruling."

Apart from Ground 4, the other three Grounds of Appeal seem to me to deal with the same point. A general restatement of that point is that by virtue of the abuse suffered by the appellant at the hands of the deceased, described in the above grounds as "battered woman syndrome" and in the judgment of the trial

judge as "battered wife syndrome", the appellant was rendered incapable of forming an intention to murder the deceased and she, therefore, lacked criminal capacity at the material time. Ground 4 of the Grounds of Appeal, however, deals with a totally different matter. The background to that ground of appeal is that in the course of the trial, Ms Maame Baffour-Awuah, the partner of Ms Tabengwa who was then, as now, representing the appellant, gave an interview to one Mrs Caitlin Davies. An account of it was published in the newspaper Mmegi under the title "Murder case to make history." The main point made by Ms Baffour-Awuah at the interview was that the appellant was going to raise as her defence that she was "a victim of battered woman syndrome, and should therefore, not be held criminally responsible for her acts." The article said that the appellant would be the first person to make this claim within this jurisdiction. The newspaper report further stated, among other things, that Ms Baffour-Awuah said that "prior to the incident, the couple had lived as husband and wife for 10 years, during which Harvey suffered "unparalleled abuse at the hands of her partner." The article ended by saying that "the syndrome has been recognised by judicial systems in the United Kingdom, Canada and USA, among other, but not in Southern Africa so far." The learned trial Judge took the view that this article was contemptuous of the Court, and summoned the editor of the newspaper, Mmegi, one Mr. Sechele, the writer of the article, Mrs Caitlin Davies and Ms Maame Baffour-Awuah to appear before him to show cause why they should not be punished for contempt of court. The learned Judge after a summary procedure in the course of which Mr. Sechele was granted bail to consult a lawyer, acquitted Mrs Caitlin Davies but

convicted Maame Baffour-Awuah, and sentenced her to 7 days imprisonment. These contempt proceedings were interposed between parts of the murder trial. And it is this interposition which, the appellant complains, blighted the vision of the trial Judge to the extent that his judgment in the murder trial became flawed.

It is that case which is referred to in Ground 4 of the appellant's Grounds of Appeal. We are aware of that case because Ms Maame Baffour-Awuah's appeal against her conviction for contempt of court and sentence came before us under the title Maame Baffour-Awuah v. The State Criminal Appeal No. 10 of 1999. We gave judgment allowing that appeal, and quashed her conviction and sentence. We have reminded ourselves of the facts and circumstances of that case by reading that judgment once more. We find ourselves at a loss to understand how the interruption of the present case to deal with the contempt case could possibly have clouded the learned judge's judgment in the murder case. None of the parties summoned had any direct connection with the conduct of the murder case before the court. The appellant was not involved in the contempt proceedings. The Court took the action it did at the time presumably because it thought the act of the defendants in that case was an attempt to interfere with the judicial process, in a manner prejudicial to a fair trial. No doubt the Court thought that a repetition had to be stopped forthwith.

Persons supposed to be interfering with the judicial process are from time to time dealt with summarily by the courts without any suggestion that the contempt proceedings affected the judgment of the Court in the main case to which those

proceedings related. It might probably have been better if the contempt proceedings had been postponed until after the murder trial. But I do not think that it was a matter which would in any way prejudice the manner in which any judge, more especially a judge of the knowledge and experience of the learned trial Judge in this case, would look at the respective cases of the prosecution or the accused in the main trial. We pointed that out to Counsel and she decided not press that ground of appeal further.

As stated earlier, the facts of the case now on appeal were not in dispute. Neither was there a dispute over the defence that the appellant, at the time the offence was committed, was suffering from battered wife syndrome. The only question was as to the manner in which the syndrome and its effect on the appellant affected her position under the laws of homicide in this country. I say this because the fact that a condition such as the alleged battered wife syndrome, whether in a general or special form, has been accepted as a defence under the laws of one country does not mean that it ought to be accepted in all countries. Each country has its own laws providing for acts which are proscribed as criminal, stating the elements of and exceptions or defences, to these crimes. In some countries, such as England and South Africa, the criminal law is not found in a Code, it is mainly based on the common law. In others, such as Botswana, India and the other anglophone African members of the Commonwealth, the criminal law is codified. Indeed, in Nigeria there are two different Codes, with significant differences operating in the country: the Penal Code for the Muslim North and a Criminal Code for the rest of the country. What the law is for a country as a whole or in a

8
particular part of it depends entirely on the provisions of the operative statute in
that country, judges in countries not regulated in a field of law by statute may find
themselves in a better position to be more innovative than their Brothers whether in
those very countries or otherwise who are dealing with fields of law regulated by
statute. In the latter case, the duty of the judge is to interpret the statute, not to
amend it. It is, therefore my view that in Botswana, judicial innovation, if any, in
the criminal law must be firmly rooted in the Code. Amendments whether to
change, or introduce new offences, concepts, or defences into the law, should be
left to the legislature. I am, therefore, not persuaded by the mere fact that because
a defence like battered wife syndrome has been accepted in the United States,
Canada or England, that defence should be adopted in Botswana, without first
considering what our own law says either expressly or impliedly about that defence.
Battered wife syndrome to my mind can, therefore, be considered as a defence only
in so far as it fits into the provisions of the Penal Code of Botswana.
The learned trial judge dealt with this defence of battered wife
syndrome in the context of the appellant's capacity to form the intent
required to constitute the offence of murder. In a well-considered judgment,
he said this:

"In the instant case the accused did not claim not to know what she did or that it was wrong. Her confession statement, Exhibit A, and her evidence show clearly that she knew what she was doing at the material time and that it was wrong. In the last paragraph of the statement she gave her reason for pouring the water on the deceased by saying, "due to the treatment my boyfriend levelled against me, I ended up pouring hot water onto my boyfriend's body. I immediately ran to the police to report the matter." And in her evidence she said she poured the water on the deceased after thinking

of frightening him to stop assaulting her. Nowhere in her statement or evidence did she say that the pouring of the hot water on the deceased was not of her volition. The statement and evidence show that she knew what she was going to do to the deceased and she did just that.

I agree with Dr. Sidandi that the accused acted impulsively. That is borne out by the evidence. I however find nothing in the accused's confession statement or evidence to support his opinion that her impulsive action was beyond her control. In any case it would be no defence that the accused poured the water on the deceased as a result of an impulsive action beyond her control. See the case of Bratty v. Attorney General For Northern Ireland (1963) A.C. 386 at p. 409 per Lord Denning:

"When a man is charged with murder, and it appears that she knew what he was doing, but he could not resist it, then his assertion "I couldn't help myself" is no defence in itself, See Attorney General for South Australia v. Brown (1960) A.C. 432: though it may go towards a defence of diminished responsibility,

in places where that defence is available but it does

not render his act involuntary so as to entitle him to an acquittal."

In my view, the manner in which the learned judge a quo considered the defence of battered wife syndrome is right. The defence has no place under our law of murder unless it comes under one or other of the recognised exemptions or defences under the Penal Code [Cap 95:02].

Section 202 of the Penal Code provides that:

"Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder."

"Malice aforethought" is explained in Section 204 of the Code in the
following words:

"Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances -
(a)

an intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not;
(b)

knowing that the act or omission causing death is likely to cause the death of some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death is caused or not, or by a wish that it may not be caused;
(c) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit such an offence."

From the evidence, there is no doubt that, at the time the appellant poured
the hot water on the deceased, she knew that it would cause him grievous harm,
but nevertheless she intended to cause that result. She intended to retaliate for the
violent treatment she had hitherto received from the appellant in a manner which
would remind him to desist from his acts against her in future. If that is the case, I
hold the view that malice aforethought in a case of murder has been established.
The Code says so. The learned ]udge a quo pointed out that the Penal Code
defines "harm" in section 2 as:

"any bodily hurt, disease or disorder whether permanent or temporary"; and

"Grievous harm" is defined in that section as:

"any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health, or which is likely to injure health, or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, membrane or sense."

The Judge described the injuries caused to the deceased by the hot water poured on him. He pointed out that the photographs exhibited in the case showed that the skin covering about two-thirds of the deceased's body got peeled off as a result. Having on the basis of the evidence ruled out self-defence and provocation as defences to the murder charge, the Judge found that the prosecution's case had been proved beyond reasonable doubt.

Counsel for the appellant again put for our consideration the case that the appellant lacked criminal capacity. It was not because she was insane in the eyes of the law, but she lacked capacity because she could not resist doing what she did, and did not know it was wrong. That was a submission which had been made to, and considered by, the Judge a quo. In this regard, I should recall the observation made by Lord Denning in Bratty's case, which the learned Judge referred to and which I have reproduced in the earlier part of this judgment. As Lord Denning said, an answer made to a charge of murder that the accused could not resist doing what he did, is no defence, though it may go towards a defence of diminished responsibility, in places where that defence is available. But it does not render the act involuntary so as to entitle the accused to an unqualified acquittal. Botswana does not recognise the concept of diminished responsibility as a defence to a murder charge. What Botswana recognises is a finding of extenuating circumstances which could permit a trial judge convicting an accused person of murder to substitute as sentence some other punishment than the death penalty, which is otherwise mandatory.

12
The acts or conditions recognised by the Code for determining a person's
criminal capacity or incapacity are set out in the General Rules as to Criminal
Responsibility in sections 6 to 20 of the Penal Code, and in the terms therein
specified. That part of the Code deals with matters like intention and motive,
presumption of sanity, insanity, intoxication, immature age, compulsion etc. The
provision relevant to this case is section 8(1). It deals with intention, and provides
that:

"8(1) Subject to the express provisions of this Code relating to negligent acts or omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident."

Had the case for the appellant as shown by the evidence, been that she had no intention to cause grievous harm to the deceased, or that the harm to the deceased occurred without her volition, that could have been a different matter. But that was not her case. She may not have intended to kill the deceased. An intention to cause grievous harm, however, is sufficient. And as said earlier, that intention was manifest on the evidence. Her case was that she intended to do the act she did, but as she was suffering from battered wife syndrome her doing of the act was irresistible. I do not think that is a defence, because that is not what section 8(1) excuses. Irresistible impulse is not a defence to a charge of murder in Botswana. To make it a defence would require legislative action, not innovative judicial action. As I pointed out earlier, it is not for judges to change statutory law. Their duty is to apply it. The dicta from the South African cases of S. v. Wiid

13
1990 (1) SA CR 561 and S. v. Laubscher 1988 (1) SA 163 are, to my mind, illustrative of section 8(1) of our Penal Code as quoted above.

Considering the evidence and the legal position, as it appears to me, I would dismiss this appeal against conviction.

The learned Judge a quo gave full consideration to the defence of battered wife syndrome when he came to consider whether or not there were extenuating circumstances in this case. He found that there were, and accordingly sentenced the appellant found guilty of murder, not to suffer the death penalty, but to a term of five years imprisonment. Counsel for the appellant has submitted that in the circumstances of this case, as the appellants tormentor is now dead, the appellant would no more be a threat to society. Her sentence should therefore be substantially reduced, if not altogether set aside. I have great sympathy for the appellant. But like the Judge a quo, I think that her offence is a serious one. A human life has been lost through her act, and the manner which she chose as retaliation for her suffering inflicted a most painful and traumatic experience on the deceased during the last few days of his shortened life. The number and ages of the appellant's children, who would be left without a mother's care during her imprisonment, which her Counsel urged upon us, were considered by the Judge in his determination of sentence. The law gives the discretion to decide on the sentence to the trial judge. An appellate court like ours may interfere with his exercise of that discretion only under well-defined principles. I cannot find any

14
fault with the Judge's exercise of his discretion in this case when those principles are considered. Accordingly, I find myself unable to disturb the sentence he imposed.
In the result, the appeal in respect of both conviction and sentence is dismissed.
Delivered in open court at Lobatse on 27^th January 2000
A.N.E. AMISSAH [PRESIDENT]

I agree:
P.H. TEBBUTT [JUDGE OF APPEAL]

agree:
LORD WEIR [JUDGE OF APPEAL]

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