Koitsiwe v The State (Criminal Appeal No 1 of 201) [2001] BWCA 20 (20 July 2001)

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Koitsiwe v The State (Criminal Appeal No 1 of 201) [2001] BWCA 20 (20 July 2001)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
CRIMINAL APPEAL NO 1 OF 2001
HIGH COURT CRIMINAL TRIAL NO 1 OF 1998
IN THE MATTER BETWEEN:
KENTI MOGAU KOITSIWE APPELLANT
AND
THE STATE RESPONDENT
L.T. MOTHUSI FOR THE APPELLANT R.S. SEGOKGO FOR THE RESPONDENT
JUDGMENT
CORAM: P.H. TEBBUTT Ag. PRESIDENT K.R.A KORSAH JA N. ZIETSMAN JA
TEBBUTT Ag. P

On the 20 January 1997 the body of GORATAGAME MOILWE (the deceased) was found in a house in Tlokweng in the Gaborone district. A postmortem examination of the body revealed that she had been strangled. She had also been raped. As a result the appellant was charged before Dibotelo 1 in the High Court with murder, contrary to Section 202 of the Penal Code, and one count of rape, contrary to Section 141, read with Section 142, of the Penal Code; the State alleging that It was he who had raped and strangled the deceased. He was convicted of both offences. He was sentenced to 15 years

imprisonment on the rape charge and on the murder charge was sentenced to death. He now comes on appeal to this Court.

The appellant did not initially seek to challenge his conviction on either the rape or the murder charge. Nor did he seek to appeal against his sentence of 1 5 years imprisonment on the rape charge. His appeal was directed solely against the finding of the learned trial Judge that there were no extenuating circumstances, which accordingly, in terms of Section 203 of the Penal Code, obliged him to sentence the appellant to death.

However, on the day before the matter was called in this Court, Mr. Mothusi for the appellant filed certain additional heads of argument in which he submitted that the conviction was also flawed and could not stand in that the appellant had not had a fair trial as provided for in Section 10 (1) of the Botswana Constitution and that there had been a fatal miscarriage of justice. His submission was based on the fact that there was a trial within a trial as to the admissibility of a confession made by the appellant to a judicial officer during which the learned Judge in the court a quo had sight of the confession which he subsequently ruled as being admissible having been freely and voluntarily made by the appellant. He had therefore had sight of evidence that would have affected his impartiality. He had also heard evidence during the trial within a trial which would have affected the independence and impartiality of the Court's mind during the rest of the trial. The learned trial Judge should therefore have

recused himself at the conclusion of the trial within a trial and his failure to do so had resulted in a miscarriage of justice.

The late filing of these additional heads was opposed by the State but the Court nevertheless decided to hear Mr. Mothusi's argument on the points raised.

There is no substance in his argument whatsoever. Trial courts regularly hear trials within trials on the admissibility of confessions and it would be absurd to suggest that in each and every case in which this occurs the presiding judicial officer should, at the conclusion of such trial within a trial, automatically recuse himself from the rest of the trial. On Mr. Mothusi's argument this would have to occur whether the presiding officer admitted the confession or not. It would also apply to any inadmissible evidence which the presiding judicial officer has heard but ruled inadmissible and struck rrom the record. Such a proposition is untenable. Judges and magistrates are trained judicial officers who are able to disabuse their minds of inadmissible evidence placed before them (cf R v Mabaso 1952 (3) SA 521 at 524 - 525). Moreover, while it has been said in South Africa that it is a salutary practice not to have regard to the contents of a confession before the issue of its admissibility has been decided, this is no hard and fast rule and if it occurs, an accused person would have to show that he had actually been prejudiced thereby (see S v Gaba 1985 (4) SA 734 A at 748 -750). In any event where the accused disputes that he provided the contents of a confession, those contents would of necessity have to be disclosed to the Court

(see S v Lebone 1965 (2) SA 837 (A). In the present case, no possibility of any prejudice exists. The learned trial Judge was meticulous in ensuring that the appellant had a fair trial and went out of his way to assist the appellant in the conduct of his defence. Moreover, no application for the trial Judge's recusal was ever made at the trial. Furthermore, while from the record it appears that the confession was handed up to the learned Judge, at the start of the trial within a trial it nowhere appears that he either read it or had it read to him. Mr. Mothusj's submissions were therefore rejected.

I turn then to the question of extenuating circumstances.

The deceased at the time of her death was 15 years old. She lived in Tlokweng with her mother, Seanokeng Mokula Moilwe, who lived together as man and wife with the appellant. The appellant was not the biological father of the deceased but had brought her up from about the age of one year.

Mrs. Moilwe testified at the trial of the appellant that the appellant walked with her to a nearby bus stop, as he usually did, when she left for work early on the morning of 20 January 1997. At about 2 p.m. that day she was called home to find the house locked. There was a strong smell of gas emanating from the locked house. A windowpane was broken and one Dintle, an off-duty member of the Botswana Defence Force, entered the house through the window. In the house he found the deceased lying on her back on a mattress wearing a T- shirt

and a skirt which was pulled up to her waist. She was not wearing a panty. She had scratch marks, bruises and blood on her neck. She was taken to hospital but certified dead on arrival there. The pathologist, who conducted the postmortem on the deceased found that her death was caused by asphyxia due to manual strangulation. She had multiple scratch marks on her neck, which could have been caused by fingernails. She also had a laceration of her vagina which he said could have been caused by forcible penetration.

A description of what occurred on that morning appears most clearly from the
confession, referred to above, which the appellant made on 28 January 1997 to
a District Commissioner for Gaborone whose duties included the recording of
confessions. In his statement he said:

"On the 20^th January 1997 at about some minutes after 7 a.m. I escorted my wife to the combis to go to work. When I came back I told my daughter (of customary adoption) Gorata Moilwe 15 years of age who was in the house to remove her clothes and she refused. I then grabbed her and raped her. I strangled her slightly to hold her while I raped her. When she stopped struggling, I raped her while she was alive. When I was through, I opened the gas that was in the house so that I should kill myself. I tried to cover myself with a blanket but the gas was so severe that I could not stand it. The girl was still alive and I was terribly scared to the extent that I did not know what I was doing. Because of the severe smell of the gasses which were choking me I closed the gas tank. I was dizzy and I walked out. I left the girl inside but it was not my intention to kill her. When I went back to the house I checked on her and she was no longer breathing. I became scared and ran away to my home in Mochudi. The idea was so that I should kill myself because I had killed someone without intent."

6
On his arrest he told the investigating officer that he was the one who had killed the deceased and that he "was cursed by Satan".
After his arrest the appellant was examined by a psychiatrist consultant at the
Lobatse Mental Hospital, Dr. Paul Sidandi, on two occasions. In a report Dr.
Sidandi said that the appellant had also recounted to him what had occurred on
20 January 1997. This was in terms almost identical to those in his account to
the District Commissioner. As to the actual incident, the appellant, according to
Dr. Sidandi, said this:

"He told the girl to undress as he wanted to have sex with her but she refused. He then pushed her down by force. She was dressed in a short skirt and a skipper (T-shirt). She struggled with him and scratched him over the side of the nose. He got hold of her by the neck. He felt her body go limp and he proceeded to undress her and had sexual intercourse with her once."

Dr. Sidandi stated that the incident followed four months of tension in the household. The problems started when the deceased reported to her mother that she had seen him with other women at a bar. Whenever she did so, the mother would get angry with the appellant. Two weeks before the incident he felt suicidal and contemplated hanging himself or running in front of a moving vehicle. Two months before the incident the mother stopped having sex with him after accusing him of having other relationships, which he denied. He decided to have sexual intercourse with the deceased as a means of hurting the

mother in order to force her to resume sexual relations with him. Dr. Sidandi also talked to two of his relatives. They said he had complained to them about his relationship with the deceased's mother. He told them he wanted to stop staying with her at Tlokweng and return to his home at Mochudi as they had a lot of mis-understanding with one another, mainly about their alleged relationships with other men and women. As a result of this poor relationship, said Dr. Sidandi, the appellant could have been under a mild depression. A person's mind would, however, only be affected by a depression of a severe degree and appellant's depression was not severe. The appellant had started school at 9 years of age but was a slow learner and left school in standard 4 when he was still unable to read or write. Dr. Sidandi said that the appellant was not bright and was of dull intelligence, but that such dull intelligence did not make him not realise what he was doing. He was, however, of "borderline intelligence". Dr. Sidandi said that in his opinion the appellant was mentally well at the time of the incident and he was also fit to plead and stand trial. There was also evidence that appellant was medically examined about a week after the incident and was found to have healing scratch marks on his neck which were probably caused by the deceased's struggling with him during his attack on her.

Section 203 of the Penal Code provides that:

"(1) Subject to the provisions of subsection (2), any person convicted of murder shall be sentenced to death.

(2) Where a court in convicting a person of murder is of the opinion that there are

8
extenuating circumstances, the court may impose any sentence other than death."
There is a plethora of authority in this Court on extenuating circumstances and
the approach which the court's should adopt in determining in any particular
case if there are extenuating circumstances present or not.

It is well-established that extenuating circumstances are any factors which reduce the moral blameworthiness of an accused person as distinct from his or her legal culpability on a charge of murder (see Thatavotlhe Puso v The State Cr. App 20 of 1998 (C.A) unreported) at pp 9 - 10 and cases there cited). The question of the existence of extenuating circumstances or otherwise should be dealt with as a separate issue from the legal guilt of an accused person in a murder trial (Losane v The State 1985 BLR 281 at 282). No onus lies on an accused person to prove or establish the existence of extenuating circumstances or on the State to negative their existence (see Patrick Ntesang v The State Cr. App 57/94 (C.A); David Kelaletswe v The State Cr. App 25/94 (C.A); Puso's case supra p 10). It is the duty and responsibility of the trial court to examine diligently and with an anxiously enquiring mind all the evidence before it to establish whether or not any factor is present that can be considered to reduce the accused's moral blameworthiness. At the same time it must consider the presence of any aggravating circumstances which the State may advance either in argument or by way of evidence (see David Kelaletswe v The State supra at p 40; Patrick Ntesang v State supra). In fulfilling its task in this regard, the court cannot ignore any "factor not too remote or too faintly or indirectly related to

9
the commission of the crime" and which bears on the accused's moral guilt (see
R v Fundakubi and Others 1948 (3) SA 810 at 848 cited with approval in
numerous Botswana cases including the landmark Kelaletswe case supra and
Puso's case supra.) This Court has also in several cases (see e.g. Kelaletswe's
case at p 33, Lekolwane v State 1985 BLR 245 at 248 H - 249 A; Puso's case
at p 10) approved the dictum of Holmes JA in the South African case of S_v
Letsolo 1979 (3) SA 476 (A.D.) that a trial court has to consider:

"(a) Whether there are any facts which might be relevant to extenuating circumstances such as immaturity, intoxication or provocation (the list is not exhaustive);

(b)

Whether such facts in their cumulative effect, probably had a bearing on the accused's state of mind in doing what he did;

(c)

Whether such bearing was sufficiently appreciable to abate the moral blameworthiness of the accused in doing what he did. In deciding (c) the trial court exercises a moral judgment."

It has been held that it is implicit in regard to (c) that the court considers not only the extenuating factors but also any aggravating features in the case and considers them cumulatively in arriving at its value or moral judgment (see Lekolwane v The State supra at 249 B; Kelaletswe's case supra at p 34; Puso's case supra at p 11). The court must, however, be on its guard not to allow the seriousness or repugnance of the crime to exclude the possibility of extenuating circumstances (see S v Petrus 1969 (4) SA 85 (A.D) at 95 H; S v Mzinvane

10
and Others 1988 (2) SA 151 (A.D.) cited with approval in Puso's case supra atp 11).
In his judgment on extenuating circumstances in this case the learned trial Judge,
quite correctly, rejected as extenuation youthfulness (the appellant was 40 years
of age at the time of the commission of the offence) or the fact that the
appellant was a first offender. He then said this:

"I have taken into account what the Psychiatrist said in regard to the accused, namely that he was of dull intelligence and may have been suffering from a mild form of depression due to mutual accusations of infidelity between himself and his cohabitee. These factors are however outweighed by the aggravating factors in this particular case. When the accused started living with PW3, the deceased's mother, the deceased was one year and a few months old and the accused raised the deceased as his own child and in fact the accused said he loved the deceased and the other two children. The deceased therefore regarded the accused as her father or at least as the learned State counsel has pointed out the relationship between the accused and the deceased was that of father and daughter. It must have been most terrifying to that young girl of 15 years when the accused forcefully undressed her and raped her while at the same time deliberately strangling her with bare hands.

Although the psychiatrist has said that the accused was of dull intelligence and might have been suffering mild depression because his relationship with his cohabitee was not good I have accepted that the psychiatrist also said that the dull intelligence and the mild depression of the accused were such that they would not make him not to know what he was doing."

He went on to say the following:

"The court is enjoined by Section 203 (3) of the Penal Code in deciding whether or not there are extenuating circumstances to take into consideration the standards of behaviour of the community to which the convicted person belongs. There is no doubt that the accused has never been to school and that he comes from a rustic background. However even if the accused has never been to school or comes from a rural community or has a rural background I do not think societies of that nature would permit that fathers or step fathers, as the case may be, should rape their daughters or step daughters or children they brought up who had come to regard them as their fathers. Such practice is abhorred in rustic communities and I have no doubt that the community in Tlokweng where the accused stayed with the deceased or in Mochudi where he originally comes from would abhor what the accused has done as totally repugnant to their standards of behaviour. In the premises I have come to the conclusion that there are no extenuating circumstances in this case."

The above passages suggest, in my opinion, that the learned trial Judge allowed
what he considered to be the seriousness or repugnance of the crime to so cloud
his view of the case that he failed to consider all the features that may be
regarded as extenuating. One such was the question of premeditation. That the
murder was not premeditated was raised as an extenuating factor by defence
counsel. However, the learned trial Judge failed entirely to avert to it. Both
these aspects of the trial Court's judgment in my view constitute misdirections,
which would require that this Court should consider afresh the question of
extenuating circumstances.

11
Premeditation - or the absence of it - can be a very important factor in assessing
an accused person's moral guilt, (see Nkosana Luckvson Baliki v The State Cr.
App 5/1997 (C.A. at p 8). In the present case, while it is undoubted that the
appellant planned to rape the deceased, it is in my view equally clear that he had
neither planned to murder her nor that the murder was in any way
premeditated. His statements bear this out. He said:
"I told my daughter to remove her clothes and

she refused. I then grabbed her and raped her. I
strangled her slightly to hold her while I raped her.
When she stopped struggling, I raped her "

To Dr. Sidandi he said that when the deceased refused to undress, he "pushed her down by force". She then struggled with him and he got hold of her by the neck and he then felt her body go limp. This can by no stretch of the imagination give rise to a finding that he had planned to kill her. On the contrary, it points incontrovertibly to an impulsive grabbing of the deceased by the neck in order to achieve his purpose to rape her. His subsequent actions of trying to kill himself when he realised he had killed her bear this out. I therefore come to the conclusion that appellant's murdering of the deceased was not premeditated.

The above evidence also points to the fact that there was no intention to kill in the sense of dolus directus. Indeed the trial Court found, in regard to whether the appellant acted out of malice aforethought as defined in Section 204 of the Penal Code, not that there was an "intention to cause death" but that appellant

had an intention to cause grievous harm to her and was indifferent as to whether or not his act could cause her death. These findings are consistent with dolus eventualis (see Milton; South African Criminal Law and Procedure 3^rd Edition, Volume 2 at p 324). In South Africa, when the question of extenuating circumstances was still a factor in murder cases, it was held that where the accused's intention was one of dolus eventualis. in a particular case, in the light of all the circumstances, the absence of the aim (i.e. the direct intention to kill) might constitute an extenuating circumstance. In deciding on intention one is concerned with what the doer subjectively foresaw. (See S v Dladla and Others 1980 (1) SA 1 (A.D.) As stated by Schreiner ]A in R v Fundakubi and Others supra "the subjective side is of very great importance." The appellant is clearly a person of dull - indeed "borderline" - intelligence and I am of the view that when he grabbed the deceased by the neck to effect his purpose to rape he did not subjectively foresee that he would kill her. This, too in my view is a factor which morally reduces his blameworthiness. This was an impulsive action committed on the spur of the moment by a simple man of dull intelligence.

1 accordingly hold that there are extenuating features in this case that in coming to a value judgment on them and weighing them up with those features as may be considered aggravating, as set out by the learned trial Judge, extenuating circumstances exist which reduce the moral guilt of the appellant. I would respectfully adopt what was stated by Steyn jA in Ndlovu v The State Cr App 15/1995 (C.A.)

"The appellant's crime deserves condemnation and severe punishment. It does not however, fall into the category which can be described as undoubtedly meriting no punishment other than the death penalty."

In the result the appellant's conviction for murder and rape are confirmed as is his sentence of 15 years imprisonment for rape but the death sentence passed on him on the murder charge is set aside and there is substituted for it a sentence of 20 years imprisonment. It is ordered (i) that this be backdated to 25 January 1997 (the date of his arrest) and (ii) that the sentence of 15 years imprisonment on the rape count is to run concurrently with the 20 years imprisonment on the charge of murder.

DELIVERED AT LOBATSE THIS ^^ DAY OF JULY 2001
P.H. TEBBUTT ACTING PRESIDENT
I AGREE: .A^^^^^fr
/K.R.A KORSAH-JUDGE OF APPEAL
_Jd^^r.
I AGREE:
N. ZIETSMAN JUDGE OF APPEAL

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