Totowe v The State (Criminal Appeal No. 47/2000) [2001] BWCA 14; [2001] 1 B.L.R. 166 (CA) (31 January 2001)

The appellant was convicted of murder with extenuating circumstances and sentenced to imprisonment for fifteen years. The appeal is brought on two grounds. First, it is contended that the Court a quo should have convicted the appellant not of murder but of manslaughter on the ground of provocation by the deceased. Second, the sentence is said to be excessive.

On the afternoon of the event a number of young men had been drinking and it is clear that they were in differing degrees intoxicated. The appellant joined this group and was himself affected by drink. His nephew, the deceased, was similarly affected. After some time signs of aggression began to show among the young men. A fracas broke out between two of them, PW3 and PW4. The deceased who was 19 years old became involved in this matter and chose to direct an insult at the appellant saying that he was a "sellout".

Not unnaturally the appellant was displeased at this impertinence, particularly as the deceased moved towards him as if to fight him. One of the group who was a non drinker, Baitshepi Bakoko, (PW1) restrained him. By this time the appellant's blood was up. He struck a blow with his fist whereupon the deceased fell to the ground. The trial judge described what, according to the evidence of PW1, (which he accepted) happened next:

"He continued his evidence to say that the deceased rose from where he had fallen and proceeded to leave Lucia's yard as advised by him. He was hardly out of the yard when the accused quickly rushed out through another entrance of the yard following the deceased. The witness shouted to the deceased to run as the accused was coming behind him. The deceased tried to run but tripped over and fell on his back. The accused who had a knife in his right hand was now near and the witness saw him bend down and strike the deceased with his right hand. The deceased was still lying on his back. The witness says he heard a thud as if of a fist and for a moment he thought only a fist blow had been delivered to the deceased's abdomen.

As the witness approached, the deceased got up on his knees and lifted up his shirt to expose the wound on his stomach. The witness saw the injury and the intestines spilling out of the deceased's stomach."

In evidence the appellant stated that the deceased's behaviour was not confined to the single verbal insult already mentioned. His conduct was in fact much more provocative. According to the appellant, the deceased said he was going to shit over him, and that he and the others were going to sort him out on his way home. He threw down a plastic container at his feet just immediately before the incident. As this testimony was in conflict with the evidence of PWl, who only referred to the "sell out" insult, the trial judge had to decide who to believe on this matter. Counsel for the appellant submitted that he should not have accepted the evidence of PWl but should have preferred that of the appellant. He drew our attention to the evidence of Shimane (PW5) another of the group of young men to the effect that PWl was not at the scene of the stabbing. This, he said, undermined the credibility of PWl.

Matters of credibility are for the court a quo. The court will rarely substitute its own view for that of a judge who has seen or heard the witnesses. This is not such a case. The trial judge was not prepared to accept the evidence of the appellant (Page 133) and he was fully entitled to do so. Accordingly on the basis of the facts found by the trial judge it is necessary for this court in judging as to the

Counsel urged us to accept that the effect of the verbal insult on a man of the appellant's intellect and background was to rouse him to such a pitch of passion that he lost control of himself and in the heat of the moment inflicted a single stab wound which proved to be fatal. This, he submitted, should have been treated by the court a quo as sufficient provocation in law so as to reduce the conviction to manslaughter.

I agree that the defence set out in Section 206 of the Penal Code as to the effect of wrongful act or insult upon an ordinary person has a degree of subjectivity about it in as much as one must look at the ordinary person living in a particular class of society (State v. Mathono 1991 BLR 66 at P 71.) But this test must be looked at with some care. The appellant in this case was described by the judge as "an illiterate of rustic background" but without evidence I am unable to conclude that such person is necessarily more sensitive to the particular insult in question than others of different intellect or background. I agree with the trial judge that the particular insult should not have caused the appellant to react in the way he did and I further agree when he says:

In my view, the reasoning of the trial judge is entirely correct. The deceased was asking for trouble for behaving in the way he did but the appellant's reaction was wholly out of proportion . The appellant struck him with his fist and knocked him down. When the deceased who was unarmed ran away he was pursued and after he tripped and fell, the appellant inflicted a savage fatal wound. There is no merit in the plea of provocation and the conviction is affirmed.

Counsel for the appellant submitted that the sentence of fifteen years imprisonment was excessive . He did not argue that the court a quo had misdirected itself in sentencing but contended that the length of sentence was so grossly excessive that the court should intervene. There was no premeditation in the fatal assault. The appellant's temper had been aroused by the deceased's behaviour. There was only one stab wound and the court should view the assault as a dreadful mistake. He was under the influence of drink at the time. He has felt remorse at killing his nephew. Bearing also in mind that the appellant was an illiterate countryman, the court a quo should have passed a lessor sentence .

The court a quo took all these factors into account but the judge expressed his concern at the prevalence of knife assaults and the need to deter those who might wish to settle disputes by the use of such weapons, the judge also expressed strong words about the nature of the assault which led to the death of the deceased.

In my judgment it cannot be said that the court a quo misdirected itself in any way in dealing upon sentence and while it can be argued that the sentence was severe, it was within the range of sentences open to the court and as such it was not one with which this court can interfere. The appeal against sentence also fails.

Botswana: Court of Appeal

Totowe v The State (Criminal Appeal No. 47/2000) [2001] BWCA 14; [2001] 1 B.L.R. 166 (CA) (31 January 2001)