Masono v The State (Criminal Appeal No. 35/99) [2000] BWCA 8; [2000] 1 B.L.R. 46 (CA) (27 January 2000)

Appellant was convicted of the murder of a new-born baby. The High Court held that there were no extenuating circumstances. Appellant was accordingly sentenced to death. She appeals both against her conviction and against the sentence imposed upon her. In the latter regard, counsel who appeared for her challenged the finding that no extenuating circumstances were present.

The first argument was that the learned Chief ]ustice who presided at the trial had "erred in finding that Appellant's alibi had been disproved by the State." The second argument challenged the finding of the court a quo concerning the acceptability of the evidence of the principal state witness, the mother of the baby, referred to as PW2. This witness was correctly found by the trial court to have been an accomplice and her evidence was evaluated as such. She had in fact been a co-accused together with appellant. However, after a separation of trials, she was convicted of the crime of infanticide under Section 208 of the Penal Code and had been sentenced by the time she testified. Her sentence was one of 5 n years imprisonment, 2 years of which were suspended on certain conditions.

PW2 was at the time of the trial 21 years old. According to her she fell pregnant at the end of April 1997 (she must then have been 1 8 or 19 years old). At that time she was employed at a hair-dressing salon in jwaneng. She says that she got to know appellant at the end of June 1997. She was a client of the salon. On an occasion when she came to the salon and whilst PW2 was doing her hair they talked with one another about children. Appellant asked her if she was pregnant, saying that she (appellant) was an adult and "she could see." She urged appellant to confide in her and said that she would assist her. They agreed that after her hair had been done the two of them would go outside and talk.

conversation was that appellant offered to perform an abortion on the witness for a fee of P700.00, payable in monthly instalments. The last instalment was paid on the 29* of November 1979. The date for the abortion was set for Monday the 8"¹of December 1997. On this date appellant came to PW2's home, and gave her certain medicine to induce labour pains. She was told to lie on her back. Appellant inserted what the witness describes as "a pen without a refill" into her vagina and turned it. Certain other procedures were carried out and the witness gave birth.

Contrary to the two women's expectations a baby boy, who was very much alive and cried, was born. The witness was asked whether she or appellant divj anything to the baby. She replied that she did not see what appellant did but later when she asked her, appellant told her that she had suffocated the baby by covering its mouth with her hand and also said that she had covered the child with the witness's nightdress and that she had thrown him into the pit latrine. Appellant gave PW2 some medicine to esse her pain. She informed the witness that she would check on her the following day. She also testified that appellant "told me that I must not go to the hospital and I must not tell anyone about what happened because (it) might get us into trouble and again she will deny that she is the one who helped me."

In her evidence PW2 said that during the discussions concerning her own pregnancy and its possible termination appellant had told her that she had in fact assisted other women in procuring abortions. She asked PW2 if she knew anybody else and if so to refer them to her (appellant). PW2 says she did know of a woman

who was "in trouble" and could well be seeking help. Pursuant to this discussion two things happened. PW2 informed the woman of the services appellant offered and appellant informed PW2 that she would go to the Shell garage where the woman worked, to meet her and offer her services. Appellant subsequently confirmed to PW2 that she had met this woman at the garage and that she would be helping her.

This woman, referred to by the trial Court as PW9, gave evidence which was to the following effect. She confirmed that she had talked to PW2 about her pregnancy and that PW2 had told her about appellant and the possible assistance she might render. PW9 described how they had met at the petrol station 3nd true appellant had introduced herself as Rinah with another name that sounded like Marina. Appellant confirmed that she had come to see her about her pregnancy which she had discussed with PW2 the previous day and that she could assist her in the termination of her pregnancy. The fee to be charged for her services was discussed. Appellant said that she charged P400 if the fee was paid in cash. If paid in instalments the fee would be P450 with a deposit of P250. PW9 did not have such substantial sums of money available, but appellant told her that any amount would be handy to enable her to buy medicines and other requisites necessary for [he successful completion of the procedure. PW9 accordingly borrowed P20 which she gave appellant. She was subsequently dissuaded from proceeding with the abortion but when on enquiry she informed appellant of her decision, she failed to repay the P20.

I now return to the issue of the murder of PW2's baby. It was not disputed that the body of a new-born baby was subsequently retrieved from the pit latrine at the residence of PW2. This body was later examined by a pathologist, PW12. He gave evidence that on examination he found some internal injuries, such as diffuse contusion of the scalp in the vault area of the head of the baby with haematoma beneath. The pathologist further said the two parietal bones were separated from each other as well as from the forehead bone. He confirmed the information that all the injuries were ante mortem in nature, and that the baby was born alive as its lungs showed that it had breathed before it died. He concluded that the cause of death was the head injury described above.

In his oral evidence the doctor said that the baby must have been hit with a blunt instrument on the top of the head causing the aforesaid injuries, or it had fallen headlong on a hard and blunt surface from a height. In other words the baby either fell on a hard object or somebody hit it with a hard blunt object on the top of the head, resulting in the contusion and separation of the various bones forming the vault area of the head.

In so far as the commission of the murder is concerned, appellant raised the defence of an alibi. She alleged that on the 8^th of December she was in transit from Francistown to Maun to stay with her boyfriend, who was called as a defence witness and is referred to as DW2. Appellant produced what the learned Chief Justice referred to as a "piece of paper⁷' which she alleged was a bus ticket issued with a date alleged to be the 8^th of December 1997 written on it and which purported to reflect that someone had travelled from Francistown to Maun on chat date. There is no reference to the identity of the passenger to whom the ticket was issued. The date on the ticket appears also to have had an alteration effected on it. The numeral 1 appears to have been written over a different numeral, possibly 3n O. Be that as it may, the attempt to establish an alibi, i.e. that appellant could not have performed the abortion on PW2 because she was in Maun on the 8^:n of December via viva voce evidence, failed miserably. The witnesses she called were unable to confirm that this was the case. Indeed, although counsel devoted a great deal of his argument to this aspect of the matter, it is abundantly clear that there is no evidence on record - other than the enigmatic bus ticket - that supports the defence. Moreover, the failure of appellant to testify under oath as to her movements and to subject herself to cross-examination, inter alia in substantiation of

I turn to deal with the second string to appellant's counsel's bow, i.e. his challenge directed at the acceptability of the principal state witnesses. I have considered the discrepancies in the evidence of PW2 to which the appellant's counsel has referred us. These are of such a minor and understandable nature that they in no way cast any doubt on the correctness of the findings of the trial court. Moreover the evidence of PW9 lends considerable credence to PW2's version of the events, and if believed, reflects adversely on the acceptability of the averments made by appellant in her unsworn statement.

The learned Chief Justice analysed and weighed the evidence before him with great care. He applied the cautionary rule in relation to the approach to ire adopted in the case of accomplice evidence in a manner which is beyond reproacn. His reasons for the acceptance of the testimony of the State witnesses is convincing, as is his rejection of the defence witnesses who attempted to support appellant's alibi. We are satisfied that appellant was correctly convicted on evidence which was both cogent and credible. THE ISSUE OF EXTENUATING CIRCUMSTANCE

"You are convicted of murder of a baby. Your lawyer has tried his level best for you in regard to the sentence I should impose. He has in mv view argued every single element that is conceivable as extenuation. However, as I see it this is a case of a planned abortion that failed necessitating that you, who had taken money or a fee to procure that the baby was not born alive, had to make a choice since in fact the baby was born alive. The choices were not enviable to you but they were clear. You had to tell Boitshoko that the baby was born alive and that the proposed abortion was itself aborted, or you

could go further and terminate the life of the baby by other means. You chose to terminate the baby's life, clearly in order to keep the fee, and perhaps to vindicate the efficacy of your services. It is only in that context that it can be said that there was no pre-planning to murder a living person, but the fact is that the idea was to procure that the baby was not born alive but born dead. The issue is whether it can be a factor to reduce your moral blameworthiness. Normally the lack of premeditation is taken to be an extenuating factor where the killing or the carrying out of an offence was never in the contemplation of an accused up to almost before the crime happened. Here you had the intention of preventing this baby from ever being born alive and when it was born alive you decided to get rid of it. In my view the killing was an extension of a wicked plan in the first place." [Emphasis added]

"You and your hirer set out a plan and for months you and Boitshoko acted on it, meanwhile vou were taking a fee during that period. In the process you made it known that this is vour business and you would welcome other customers and you said vou had had some before. I must not be thought to want to punish her for those other activities. They are not before me, but thev serve to show vour attitude towards illegal termination of pregnancies by abortion. They show that in agreeing to help abort the baby in the present case you were not suddenly moved by youthful impulses or a youthful lack of maturity. You were in business." (Emphasis added)

"It is quite clear from this provision that it is the responsibility of the court convicting a person of murder to consider all the facts and circumstances of the case and determine whether or not there are extenuating circumstances. The law does not, in my opinion, cast any onus on such a person to show that such extenuating circumstances exist, such a decision may be arrived at independently of whether or not the accused gives any evidence in that regard. In order for a fair determination of the issue, however, it becomes incumbent on the court to explain the purpose of the enquiry to the accused and to affording the opportunity to give any evidence or to point to any facts in the case upon which a finding of the existence of extenuating circumstances may be found in his favour. If such circumstances already exist clearly in the evidence, a court may so find without the necessity of calling upon the accused to tender further evidence or to make further submissions in their behalf. However, a court cannot hold that such circumstances do not exist without affording the accused an opportunity to show by oral evidence or otherwise that such circumstances exist."

"We note in particular the significance which Schreiner J.A. ascribes to the subjective side and that no factor not too remote or too faintly or indirectly related to the commission of the crime and which has a bearing on the accused's moral guilt can be ignored. See R. v. Fundakubi supra. It seems to us that there is therefore an overriding responsibility of the court and its officers - counsel - to ensure that the second phase of the process - the inquiry as to the presence or absence of extenuating circumstances - is conducted with diligence and with an anxiously enquiring mind. The purpose of the enquiry inter alia is to probe into whether or not any factor is present that can be considered to extenuate an accused's guilt within the context and meaning described above. At the same time, the state may both in argument or by way of evidence, canvass the presence of aggravating circumstances. 2. When all the evidence is in, the court is obliged to evaluate the testimony and submissions before it, consider and weigh all the features of the case - both extenuating and

aggravating - See lekolwanc v. The State supra at pg. 249. This will include evidence tendered during the principal hearing and that tendered during the second phase inquiry. It will then make its value or moral judgment - See Lekolwane supra - as to whether extenuating circumstances exist or not. Should it be in doubt as to whether such circumstances exist or not as such doubt is reasonable and not the doubt of a weak or vacillating mind, it should in my view give the benefit of such doubt to the accused. 3. Should it find that such circumstances do exist, it will, where appropriate, hear any further evidence in mitigation or aggravating, including evidence of the presence of previous convictions) as the state or the accused may wish to tender and will then pass an appropriate sentence."

It is apparent from the emphasised passages from the court a quo's reasoning cited above, that it viewed the task at hand as one that concerned the passing of a sentence on appellant, i.e. it dealt with the process of an enquiry into the presence or absence of extenuating circumstances and the determination of an appropriate punishment as if it were a single enquiry. This caused it to consider as a relevant factor the fact that appellant was in the business of performing abortions. This fact has no bearing upon appellant's moral guilt as regards the commission of the murder itself. Whilst this aspect of the matter could possibly be considered as an aggravating feature in the determination of the sentence to be imposed, it is not conduct associated with the commission of the crime and should not have been taken into account when determining appellant's degree of moral guilt in committing the crime of murder. When deciding whether there are extenuating circumstances, the court is confined to the consideration "of facts associated with a crime which serves in the minds of reasonable men to diminish morally, albeit not

It is open to a court, even if it should find that extenuating circumstances exist, nevertheless to sentence an accused to death. Whist this would only be appropriate in the rarest of cases, it is clear that what a finding of the presence of extenuating circumstances does, is to confer a discretion on a court to pass a sentence other than the prescribed penalty - the death sentence - on an accused. Thus, for example, should it be proved after conviction of murder with extenuating circumstances, that an accused has previously been convicted on one or more murder charges, a court may consider such prior conduct to justify the imposition of the supreme penalty.

The learned trial judge following what was said in Gofhamodimo v. State [1984] B.L.R. 119, C.A.; Ramone v. R. 1963-69, Swaziland L.R. 249 (C.A.): Shabalala 1966 (2) S.A. 297 (A.D.) and S. v. Shoba 1982 (1) S.A. 36 (A.D.) correctly decided to deal with the question of extenuating circumstances as a separate issue.

Thb procedure ought to be followed in all cases of murder where the question arises as to whether the death sentence ought to be imposed or not. In some cases extenuating circumstances may become apparent in the course of the trial. In all others where there is a verdict of guilty to murder, the accused should be permitted to lead evidence and to address the court in extenuation or merely if he so desires, to address the court in extenuation.

I thought it desirable to set out fully the proper procedure to be adopted by the trial court because in the present case just as in Mosarwa v. The State (reported at p. 258, ante) the learned judge has fallen into the same error as he did in that case. In considering the question as to whether there are or are no extenuating circumstances he took into account a serious previous conviction of the appellant. This he can only do, as pointed out in Mosarwa supra, after finding that extenuating circumstances exists, in determining what is an appropriate punishment.

This then is a case where, because of a misdirection by the trial judge, this court is at large to consider the question of sentence afresh. The proper approach to the question as to whether there are extenuating circumstances is set out in the oft cited decisions in R. v. Fundakubi 1948 (3) S.A. 810 (A.D.) and S. v. Letsholo 1970 (3) S.A. 476 (A.D.) which have been unquestionably followed in the courts of Botswana."

"Mitigation is different from extenuating circumstances. For example previous convictions are not relevant to the latter. In my view it is important that the presiding judge should concentrate his mind specifically on the question of extenuating circumstances as are connected with or have in relation to the conduct of the accused in the commission of the crime which carry weight."

We reaffirm that the procedure to be adopted when considering the presence or absence of extenuating circumstances and the subsequent determination of an appropriate sentence is that which is set out in the judgments of this court referred to above. The court has to approach them as two separate and distinct enquiries 3nd they should not be compressed into one single enquiry.

As appears from the citation from the Chief Justice's judgment he
specifically disavowed any intention of punishing appellant for her known other
criminal activities. However, he does seem to have given a great deal of weight to
the fact that appellant was not only a practising abortionist, that she did so for
money, that she was "a determined person in removing the pregnancy, that she
"chose to keep to the contract (to abort the child) perhaps to vindicate the efficacy
of her services and that she "chose to terminate the baby's life, clearly in order to
keep the fee "

Some of these findings are justified on the evidence, however others are not. Thus for example there is no evidence to justify the finding that appellant killed the baby in order to keep the fee or to "vindicate the efficacy of her services." The Court appears to us to have attached too great a weight to the moral obliquity of appellant's callous conduct and the other aggravating features of her behaviour.

This is more so when such factors are weighed against the fact that the murder of a live baby had probably not been contemplated. Appellant believed that it was a pregnancy of some 6 months that she was about to terminate. (The court held that appellant believed that the child had been conceived in May or ]une 1997). Whilst the conduct of appellant in seeking to abort such a foetus can only be described as reckless in the extreme, she was not an experienced midwife. In these circumstances it is not unreasonable to accept that both she and PW2 must have been shocked and surprised when her attempts at an abortion produced a live baby. What followed was indeed a horrific crime, but was not premeditated.

The crime committed by appellant was both callous and cruel. It is difficult to understand how anyone, especially someone who, like appellant is herself a mother, could destroy the life of a defenceless child. However, the crime of murder was not premeditated. The absence of premeditation, as the court itself correctly says, is normally an extenuating circumstance.

The moral guilt of appellant is profound. Indeed the gravity of the crime appellant committed makes the imposition of a lengthy period of imprisonment imperative. I am of the view that a sentence of 20 years imprisonment will meet the well known triad of considerations that have to be weighed when determining an appropriate sentence i.e. deterrence, retribution and the rehabilitation of the accused. It follows that the sentence of death is set aside and in its place is ordered: 20 years imprisonment. The sentence is back-dated to the date of appellant's arrest, i.e. the 7^th of January 1998. Delivered in open court at Lobatse on 27 January 2000.

Botswana: Court of Appeal

Masono v The State (Criminal Appeal No. 35/99) [2000] BWCA 8; [2000] 1 B.L.R. 46 (CA) (27 January 2000)