Rakena v The State (Criminal Appeal No. 2/201) [2001] BWCA 24 (20 July 2001)

The Appellant, despite his plea of not guilty, was convicted of murder by the High Court sitting at Francistown. The trial Judge made a finding of extenuating circumstances and he sentenced the Appellant, a first offender, to 8 years imprisonment. The Appellant appeals against both his conviction and his sentence.

At the trial certain admissions were made on behalf of the Appellant and two witnesses were called by the State, namely Agnes Molasa (PW1) and Shandukani Shunga (PW2). No defence witnesses were called to testify and

The murder is alleged to have been committed on 31 October 1997. It is clear from the evidence that the incident which resulted in the deceased's death occurred late at night or, more probably, in the early hours of the morning. The circumstances surrounding the incident are largely common cause and the Appellant does not dispute the fact that he struck the blow that caused the death of the deceased. His evidence at the trial was one of self-defence.

As stated above, the Appellant did not give evidence at his trial but his written statement to Magistrate Somolekae was admitted as part of the record. It will be convenient to, at this stage, set out fully the said statement which, translated into English, reads as follows:

"Yesterday at around 12:00 midnight I was from Orlando going home to the Stands. When I arrived at my house everyone was asleep. I decided to go to Agnes' yard there is a shebeen there. When I got there I bought myself a pint of chibuku. I then sat down to drink my chibuku. As I was drinking my chibuku Malutu came to me and accused me of having an affair with his wife. He said I wanted to destroy his life. I then took the said chibuku I was drinking and poured it on Malutu. Agnes and Patrick then stood up and came to where I was, they accused me of being ill-mannered and started assaulting me with fists. I told them that I wanted to go home. I retreated walking backwards. I fell down as I was tripped by some branches. I got up and ran away towards my house. Agnes and Patrick followed me, Agnes had picked up some bricks and she was throwing them at me, none of them hit me. Patrick caught up with me and started assaulting me with fists again. I picked up a tree branch nearby and hit him. I do not know

where I hit him. I was only defending myself and did not intend to kill him. After I hit him with the branch he fell down and started groaning, he was not bleeding. I fetched some water and poured it on him, but he continued groaning. I got scared and ran away.

I spent the night in the bush. When I went home this morning I was informed that Patrick had died. I then decided to go and present myself to the police. I did not intend to kill Patrick I was only defending myself."

It is common cause that Patrick and Agnes were living together as man and wife and that they ran a shebeen at their house. The Appellant's statement that he poured some of his chibuku on to a man known as Malutu is supported by other evidence and it is further common cause that Patrick approached the Appellant and remonstrated with him. The three of them, the Appellant, Patrick and Agnes, then proceeded across the road to the Appellant's home and it was in the yard of the Appellant's home that the Appellant struck the blow that caused the death of the deceased. The two homes are on opposite sides of a road and according to the record they are approximately 40 metres apart.

What took place at the time when the three persons moved from the deceased's home to that of the Appellant is not common cause. According to the Appellant's statement Agnes and the deceased assaulted him with their fists while he was still at the deceased's home. He then told them that he wanted to go to his home. He retreated backwards but tripped and fell. He got up and ran towards his home followed by Agnes and Patrick. Agnes threw bricks at him and when Patrick caught up with him he assaulted him

Agnes told a somewhat different story. She denied that she threw bricks at the Appellant. According to her the deceased grabbed hold of the Appellant and pushed him out of their yard and towards his home. The Appellant twice broke the deceased's hold on him and at one stage the Appellant, according to Agnes, threw bricks at them. One of the bricks struck Agnes on her left elbow. Agnes stated that she told the deceased to leave the Appellant alone but the deceased replied that he was taking the Appellant to his mother. Agnes stated further that when the two of them entered the Appellant's yard the deceased was still pushing the Appellant.

Agnes did not see what happened after they had entered the Appellant's yard and she could not say whether the deceased assaulted the Appellant there. She stated that she heard a thud and when she entered the Appellant's yard she saw the deceased lying on the ground. She confirmed the fact that the Appellant then fetched a container with water which he poured over the deceased.

The Appellant did not give evidence at the trial and his statement which was handed in at the trial was not made on oath. There was thus no sworn evidence to contradict the evidence given by Agnes. There appears to be no reason to doubt the evidence given by Agnes and her evidence was correctly

accepted by the trial Judge. The facts, as correctly found by the trial Judge, are that after the Appellant had poured some of his chibuku on to Malutu the deceased seized hold of him and forcibly pushed him a distance of approximately 40 metres from his yard to and into the yard of the Appellant's home.

After the deceased and the Appellant had entered the Appellant's yard Agnes could not see them and she could not say whether at that stage the deceased struck Appellant with his fists. The trial Judge found as a fact that the deceased at no stage assaulted the Appellant. Mr Mhandu, who appeared for the State on appeal, submitted that this finding by the trial Judge was not justified. He submitted that we should accept in favour of the Appellant not only that he was forcibly pushed by the deceased all the way to his home but also that he was in all probability struck by the deceased with his fists before he seized the weapon with which he struck the deceased.

Mr Kaanq. on behalf of the Appellant, has submitted that the Stated failed to discharge the onus of proving that the Appellant, when he struck the deceased, was not acting lawfully in self-defence and he submitted therefore that the appeal should be allowed and the conviction and sentence set aside.

The weapon used by the Appellant is described on the record as a pole 3 metres long. It appears from the record that only one blow was struck by the Appellant but it was struck with sufficient force to cause a fracture dislocation of the C² and C³ cervical vertebrae. The cause of death is described by the doctor who carried out a post mortem on the body of the deceased as shock and haemorrhage resulting from these fractures.

For the defence of self-defence to succeed the Court would have to find, as a reasonable possibility, that the Appellant was a victim of an unlawful attack by the deceased, that he had reasonable grounds for believing that he was in danger of being killed or seriously injured by the deceased and that the means he used to avert the attack upon him were not excessive, having regard to the circumstances.

In the present case, on the facts most favourable to the Appellant, the deceased was not armed. He used only his fists in his attack on the Appellant. The Appellant seized hold of a dangerous weapon. He then struck a blow aimed apparently at the neck or head of the deceased with such force that he dislocated and fractured two bones in the region of the deceased's neck and caused the deceased's death. The means he used to avert the attack upon him were clearly excessive and the trial Judge was correct in his

finding that the State had discharged the onus of proving beyond a reasonable doubt that the Appellant; had not acted lawfully in self-defence. The question of provocation on the part of the deceased was raised at the trial but because of his finding that the Appellant was "not at all assaulted by the deceased with fists" the trial Judge came to the conclusion that the Appellant did not act under provocation. Mr Mhandu, on behalf of the State, has conceded that this was an incorrect finding by the trial Judge. His submission is that the Appellant was provoked by the deceased and that the provocation was such that the trial Judge should have found the Appellant guilty of Manslaughter and not of Murder.

"When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only."

The trial Judge correctly came to the conclusion that the deceased acted lawfully in telling the Appellant to leave his premises after the Appellant had caused a disturbance there. The deceased however did not merely eject the Appellant from his premises. He thereafter used force to push the Appellant all the way to his own home and he did not heed Agnes' request that he leave the Appellant alone. We accept the Appellant's allegation further that after the deceased had pushed him into his yard he proceeded to attack him with his fists, and it was only then that the Appellant seized the weapon and struck the

It appears from the record that the Appellant and the deceased knew each other well and that there was a peaceful relationship between them. The Appellant was described by Agnes as an obedient child. He was staying with his parents and was 19 years of age at the time or the incident. After striking the deceased he fetched a container of water which he poured over the deceased obviously in an attempt to revive him. He then ran away and spent the night in the bush. The next morning when he was told that the deceased had died he gave himself up to the police. He clearly did not have any direct intention to kill the deceased and the facts to which I have referred support the view that the offence was committed by him in the heat of passion. It is our conclusion that the concession made by Mr Mhandu is correctly made and we will accordingly alter the conviction to one of Manslaughter.

We now have to reconsider the question of sentence. The Appellant is a first offender but the force he used against the deceased was grossly excessive and despite the fact that the verdict is to be reduced from Murder to Manslaughter we are of the view that the sentence of 8 years imprisonment is an appropriate sentence. We will however ante-date the sentence to the date of the Appellant's initial arrest, namely 31 October 1997.

In the result the appeal succeeds to the extent that the verdict of Murder is set aside and is substituted by a verdict of Manslaughter. The sentence of 8 years imprisonment imposed by the trial Judge is confirmed but it is ordered that the said sentence will run from 31 October 1997.

Botswana: Court of Appeal

Rakena v The State (Criminal Appeal No. 2/201) [2001] BWCA 24 (20 July 2001)