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Bosch v The State (Criminal Appeal No. 37 of 1999 ) [2001] BWCA 4; [2001] 1 B.L.R. 71 (CA) (30 January 2001)

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IN THE COURT OF APPEAL OF BOTSWANA
HELP AT LOBATSE
COURT OF APPEAL CRIMINAL APPEAL NO. 37 OF 1999 HIGH COURT CRIMINAL TRIAL NO. 34 OF f 997
In the matter between
MARRIETTE SONJALEEN BOSCH        APPELLANT
AND
THE STATE        RESPONDENT
Mr. D. de Silva QC with him Mr. Fashole-Luke II for the appellant Mr. L. Z. Ngcongco with him Mr. B. Nlanda for the respondent
JUDGMENT
CORAM: Aguda Ag. J.P. Nganunu C.J. Tebbutt J.A.
AGUDA Ag. 1.P
INTRODUCTION
On January 12, 1998, the appellant was arraigned before a Judge of the High Court sitting at Lobatse upon the single charge of murder contrary to Section 202 of the Penal Code. The particulars of the charge alleged that the appellant on or about the 26th June 1996 at Phakaiane in Gaborone Administrative District murdered Maria Magdalene Wolmarans. She pleaded not guilty to the charge. The
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State was represented by U. Mack with whom were Batsalelwang and NIanda whilst the appellant was represented by Fashole - Luke II.
The prosecution called sixteen witnesses and closed its case. For her defence, the appellant gave evidence and called eleven other witnesses. The record of appeal in the case runs to 1168 pages. Judgment was delivered on December 13, 1999.
THE JUDGMENT AND SENTENCE
The learned trial judge, Aboagye, ]. having concluded that it was the appellant who
with the requisite intention shot and killed the deceased with a gun and that the
defence of self-defence, provocation and insanity were not applicable in her case,
found her guilty as charged. He accordingly convicted her of the offence. The
learned trial Judge then gave her the opportunity, as she was entitled to under our
law, to lead evidence in support of her allegation that there were circumstances in
her case which would bring her case within sub-section 2 of Section 203 of the
Penal Code. The sub-section says that -
"Where a court in convicting a person of murder is of the opinion that there are extenuating circumstances, the court may impose any sentence other than death."
The appellant thereafter once again gave evidence and called three witnesses with a
view to convincing the court that there were extenuating circumstances in her case.
After the conclusion of all the evidence led by the appellant and the address of
Counsel for the appellant and the address by Counsel for the respondent the court
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adjourned for a ruling. In concluding his ruling dated February 11, 1996, the
learned trial judge said:
"... I find the accused's murder of her close friend in order to take over her husband an aggravating circumstance in the case. ...I find that the crime committed by the accused was carefully planned and committed with an evil motive without mercy for an innocent victim who had done her no harm. It is difficult to think of a crime that is more devoid of circumstances that could be held to reduce the moral blameworthiness of the accused than that of which she has been convicted."
She was accordingly sentenced to death.
THE APPEAL
On February 15, 2000, Counsel on behalf of the appellant filed a Notice and Grounds of Appeal to this Court. Only two grounds of appeal against conviction were filed and these were (1) that "the verdict was unreasonable cannot be supported having regard to the evidence" and (2) that "the conviction on the count charged is unsafe and unsatisfactory". In substance only one ground was filed against the sentence, and that was that the learned trial judge "erred in finding that there were no extenuating circumstances and imposing the sentence of death." Later, on December 1, 2000, Counsel for the appellant Fashole-Luke filed another document bearing no title and without reference to the Notice of Appeal containing grounds of appeal, earlier filed. It does not even bear any heading nor does it say that it contains substitute, or additional grounds of appeal. Be that as it
3

may, it is clear that the grounds of appeal set down in that document are in essence
these:
1.      
That the learned trial Judge erred in misunderstanding the burden and standard of proof thus leading to the erroneous conviction of the appellant for failing to prove her innocence. Subsidiarily, that the learned Judge erred in placing the burden of proof of alibi on the appellant.
2.      
That because the prosecution failed to disclose to the court and to the prosecution that one of the witnesses had been granted immunity from prosecution, the appellant did not have a fair trial.
3.      
As regards the sentence that the learned trial Judge erred in not finding that there are extenuating circumstances in this case.
However, without leave, Counsel for the appellant in the afternoon of Monday January 15, 2001, filed what he calls Additional Supplementary Grounds of Appeal against Conviction. On the same day, another set of Heads of Argument in relation to the latest grounds was filed at the same time. And the appeal had been definitely fixed for hearing to January 18, less than 60 hours to the hearing of the appeal. I do not see any provision of the law permitting the Registrar to accept the new grounds of Appeal without the leave of the court, and including them in the record of appeal, contrary to Rule 33 of the Court of Appeal Rules which read with Civil Form 1, Third Schedule which obliges an appellant to include grounds of appeal in his notice of appeal. In spite of all this, however this Court agreed to and did hear appellant's Counsel on each and every one of the grounds filed on the three occasions.

The latest grounds filed on January 15, 2001 which are numbered 6 and 7
complained that -
"6. The learned trial judge seriously erred in law in misunderstanding the evidential significance of a former inconsistent statement in that he failed to recognize that in law a previous inconsistent statement by a witness goes to the credit of that witness only and cannot be used or treated as evidence of the truth of its contents...
7. That learned trial judge made serious errors misdirecting himself both as to fact and law in considering the appellant's case and the evidence called on the appellant's behalf during the trial."
THE HEADS OF ARGUMENT
On December 18, 2000, the appellant filed her Heads of Argument. The
appellant in the Heads says that -
"The two real issues in this case raised by the defence were correctly identified by the learned trial Judge;"
and these are, according to the appellant (1) the plea of alibi and (2) that she had
given the gun to another person, and therefore could not have been properly
convicted of the offence. As I shall show later this of course failed completely to
give a good account of the various other matters raised in the Heads. As I shall
later consider each and every point of substance raised in the Heads as well as the
points of substance raised in the respondent's Heads of Argument I do not think
that I should set them down here in detail.
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The respondent did not file his Heads of Argument until January 8, 2001. The appeal was called on January 10, 2001, when as agreed it was postponed to January 18 and 19, 2001 for argument. Four days later, that is on January 12, 2001, Counsel for the appellant filed what he called "Appellant's Response to Respondent's Heads of Argument." It is not indicated under which rule of Court Counsel filed that response which consists of eight pages of closely typed fresh arguments supported with what looks like copious authorities in respect of what I categorised earlier as ground 2 of the Grounds of Appeal, and a repetition of what the original Heads contained as to burden of proof and sentence.
Similarly as 1 have said earlier, it is not shown on the paper marked Applicant's Heads of Argument in relation to the Additional Supplementary Grounds of Appeal the Rule of Court under which it was filed nor that leave has been obtained to file the additional grounds. It appears to me that the Court was simply taken for granted because it is thought that as it was a conviction for murder, we must accept and act on any paper filed by the appellant whether properly or improperly. Be that as it may I shall give a consideration to those Heads in this case, but this must not be taken as a precedent that in circumstances of this nature this court will in future take such a lenient and highly accommodating line as in this.
The new so called additional supplementary Heads of Argument in summary complains that the learned trial Judge erred in doubting the credibility of the
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evidence of the appellant by making reference to the out-of-court statement made by the girl Charmaine (DW2). The argument on the second ground is not so easy to follow. It seems to mean no more than to complain of an erroneous evaluation of the evidence of PW3, and that of DW10.
FACTS OF THIS CASE
The appellant lost her husband Justin Bosch in 1995 through a motor vehicle accident. She and the deceased Mrs. Maria Magdalene Wolmarans were friends even before her husband, Justin Bosch died. After Justin had died Mr. Wolmarans who was staying in Maun used to pay visits to the appellant, but after Mrs. Wolmarans had died, it is clear that his visits became more frequent and close intimacy developed between both. According to the appellant herself she went to Pretoria in South Africa with the deceased on June 17, 1996 to bring her mother to Botswana. They came back to this country on June 22. On June 25, 1996, the appellant went back to South Africa to collect her late husband's gun from one Dennis Webber at Pietersburg. According to her, she went as a messenger for one Mr. Hennie Coetzee who wanted to buy the gun, but according to the prosecution she went on her own and was never sent by Coetzee. Be whatever it may be it is common cause that she got her husband's gun, a pistol, and slept with the Webbers that night. She then came back to Botswana the very next day, June 26, 1996, not only with the pistol but also with a box of ammunition containing 25 rounds. According to the prosecution she told Webber that she was going to practice
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shooting with the pistol, but according to her, the purpose of collecting the pistol was that she was going to sell it to Coetzee. In any event she collected the pistol and brought it to Botswana without declaring it at the South African border post nor at the Botswana Border post. She arrived Botswana at about 2.00 p.m on that day June 26, 1996. And according to her she went direct to deliver the gun to Coetzee, and finally got to her home by 7.30 p.m. It is common cause that at about 8.05 or 8.10 p.m, Maryana Wolmarans, daughter of the deceased, by arrangement collected Charmaine a young daughter of the appellant to go out to have dinner with her and her boyfriend. The appellant's maidservant went to her own quarters. At about 8.45p.m gunshots were heard in the house of the deceased. At about 11.00 p.m when Maryana let herself into their home, she met the dead body of her mother. She made some telephone calls including one to the appellant. The police came in later and found the corpse and two spent cartridges. A post mortem examination was performed on the body on June 28, 1996. That examination revealed that the woman had died of gun shot wounds fired from the gun brought into the country on that same day by the appellant. The police then commenced investigation into what was apparently murder.
On or about September 13, 1996, the appellant went to South Africa to order a wedding dress. On September 14, 1996, whilst still in South Africa she gave the pistol which she had collected from Dennis Webber to Michael Bosch, his wife Judith Bosch being present in the house at the time. Michael Bosch later gave it to
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Judith Bosch who then handed it over to the police in South Africa. A police expert thereafter examined the pistol and found that it was the same pistol that had been used to kill the deceased. These are the bare facts, mainly of common cause save where indicated, shorn of all frills, irrelevancies and details seriously in dispute at the trial. The fact which remains to be mentioned at this stage is that before the appellant was arrested on October 7, 1996, the appellant had got married to the husband of the deceased.
Now I think I should mention the important facts which were and are in dispute between the prosecution and the appellant. The defence put forward by the appellant after she had been charged to court for the offence was that even though it was indeed the pistol in question that had been used to murder the deceased, it was not her that carried out the murder. In fact she was ordered, forced, as at were, to travel all the way to South Africa to collect the pistol by Hennie Coetzee who wanted to pay for it. She obeyed the command, went to South Africa, and brought back the pistol and delivered it to Coetzee in his office that very day. Two weeks after the pistol had been used to murder the deceased, Coetzee returned it to her. She also alleged that on the fateful night she watched television from a little after 8.00 p.m until she went to bed at about 10.00 p.m and never stepped out of her house until she was, as it were, summoned to the deceased's home after her dead body had been discovered.
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In order to prove conclusively that the story as told by the appellant could not be true, the prosecution tendered evidence which was disputed by the appellant. According to the prosecution, the appellant had told Mr. Webber in South Africa when she asked for the pistol that she was going to use it to practice shooting. According to the prosecution she had asked for only four cartridges, but Webber believing her false story had told her that four cartridges would not be sufficient for practice, and had therefore given her 25. Webber had warned her of the danger of illegally importing arm and ammunition into this country. Feeling so concerned about this point Weber had telephoned Judith Bosch seeking her assistance to prevail upon the appellant not to take the pistol to Botswana. The appellant promised that she would deposit the pistol and the cartridges at the South African border post. The appellant of course denied that such a discussion ever took place. According to the prosecution she never fulfilled her promise of depositing them at the border post. In addition the prosecution gave evidence to show that the appellant had the motive to murder the deceased, that motive being for her to marry the deceased's husband. On the other hand, the evidence of the appellant was that one day in June 1996, Coetzee invited her to dinner in his house. Whilst at dinner he offered her P6 000.00 for the husband's pistol. First she refused the offer because the pistol had been purchased by Dennis Webber, but later said that Webber had not paid for it. Later on June 23, 1996, on another visit to Coetzee, Coetzee, in her own words, "commanded me that I should go and pick that pistol." When she asked him what he was going to use the gun for, Coetzee, again
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according to her, told her that "did not concern me. He was quite aggressive with me." She then later went to Webber in South Africa to collect the pistol. According to her she had to tell a lie to Webber why she wanted the pistol frantically, that is, that she was going to practice with it because she was afraid of Coetzee and could not tell Webber that she had come to collect it at Coetzee's command.
On arrival in Gaborone, at about 2.00 p.m., she went direct to Coetzee's office. After she had been let into Coetzee's office by Coetzee himself, she left the pistol and ammunition on his table. Soon after one Phillip Botha came into the room but she was not sure if he saw the pistol and ammunition or not. Phillip Botha never gave evidence. It was after that that she went to her house to unpack her luggage. She went to bed at about 10.00 p.m. and never came out until she was summoned to the deceased's home by the deceased's daughter after she had discovered the dead body of her mother.
THE QUESTION OF MISDIRECTION
As I have analysed earlier one of the main arguments in support of the appeal in this case is that the learned trial judge erred in reversing the burden and standard of proof thus leading to the erroneous conviction of the appellant. The argument seems to be that the appellant was convicted because the learned trial judge shifted the onus of proof of her innocence on her, and that she was unable to discharge.
n

Mr. De Silva pointed out very meticulously, in his address every direction given by
the learned trial Judge which appeared to him to be erroneous. In his submissions
because of all these misdirections the appellant has not obtained a fair trial. In his
submission as soon as the learned trial Judge came to consider the defence case, he
derailed from the well-established principle that an accused has no onus to prove his
or her innocence or even any matter upon which his conviction could be based.
The first passage in the judgment which came under very serious criticism by
Counsel is this:
"From the accused person's evidence, her defence is simply that she gave the pistol which she had collected from Dennis Webber and brought with her to Gaborone on 26 June 1996 to Hennie Coetzee at about 2.00p.m. on that day so she cannot be held to have killed the deceased with that gun. She said she stayed at her home after returning from Westwood School at about 7.35p.m. and never went out until she received a call from Maryana at about 11.00p.m. If I therefore find that she gave the gun to Hennie Coetzee as alleged by her, or that it is reasonable probable that she gave it to him, she would be entitled to an acquittal."
Learned Counsel pointed with all emphasis at his command that it is not only this
passage that constituted a serious misdirection on a fundamental point but there
were a number of others, the most serious of these being where later in the
judgment the learned trial Judge said:
"The rule of evidence is that he who asserts a fact must prove it. In the instant case, therefore the onus was on the accused to prove on a balance of probabilities that she gave the pistol to Hennie Coetzee. I therefore have to examine the evidence to see if, on a balance of probabilities, it can be said that the accused's story is true, or is
12

reasonably probably true. Any finding in the accused's favour should depend on her credibility as a witness and on the evidence of the other witness in the case."
In my view it cannot be seriously argued that these passages do not contain certain misdirections, which had they be given to a jury of laymen might, subject to what appears later might have led to the Appeal Court ordering a retrial. In my opinion where as in this case a judgment is given after a misdirection of a learned Judge by himself what the Court of Appeal should have to decide is whether the decision appealed is indeed correct, bearing in mind the totality of the body of evidence available and whether, if objectively judged, that body of evidence shows beyond any reasonable doubt that the appellant was guilty of the offence charged. Indeed the Appellate Division of the South African Supreme Court had arrived at the same conclusion even in a case where the erroneous direction had been given to a jury of laymen. R. v. Moleko [1955] (2) SA 401, the Court held that there is no failure of justice where, though there has been a misdirection, a reasonable jury if properly directed would inevitably or without doubt have convicted. The court said that they were not concerned with what the particular jury had found but with what according to their own view a reasonable jury might find.
It seems clear that in this country the law is beyond doubt, namely, that where an accused person sets up a defence of alibi the onus is not on him to prove it but it is for the prosecution to negative it beyond reasonable doubt. The only onus which
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on the accused is for him to raise such a defence as soon as possible so as to enable the prosecution to investigate the defence with a view to avoiding an unnecessary prosecution which might end in failure, or of negativing the claim if it appears to the prosecution it was not honestly made. In this country there is no statutory rule obliging the defence to notify the prosecution that the defence would be raised but the danger to the accused is that if it is raised by the accused after it had been too late for the prosecution to investigate it, the trial Judge might come to the conclusion that it has been fabricated as an afterthought defence.
The rule of law that the onus of proof of the guilt of the accused beyond reasonable doubt is an off shoot of the Constitutional provision of the country to the effect that "every person who is charged with a criminal offence shall be presumed to be innocent until he is proved or has pleaded guilty." Section 10(2) (a) of the Constitution. This principle has been given constitutional recognition to the common law principle, accepted all over the Commonwealth, as stated by Lord Sankey, LC in the House of Lords in the case of Woolmington v. Director of Public Prosecutions [1935] AC 426; 25 Cr. App. R72; 30 Cox CC 234, long before the Constitution of this country and the Constitution of the newly de-colonised British colonies of Africa were drawn up in London.
In the Heads of Argument filed on behalf of the appellant, the arguments that a discharge and acquittal be ordered in this case were anchored mainly on the
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decision of the Court of Appeal in England in the case of Regina v. Johnson [1961] 1 WLR 1478; [1961] 3 All ER 969; 46 Cr. App. R55, although in argument before this court Mr. de Silva anchored his own submission on the fundamental nature of the direction as to alibi. In considering this appeal I must emphasise that this court is not bound by the decision of that foreign Court, or of any other foreign country no matter how eminent are the judges of that Court. However, even if this court is bound by the decision of that court, the facts overriding and circumstances of that case and of the numerous other cases similarly decided are far different from those of the case before us here.
First and very importantly, all the cases were based upon directions given by a Judge to a Jury. We do not use a Jury in this country, and here we are faced with a judge, learned in the law, giving directions to himself. And also of great importance is the fact as I shall show presently that in the case of Johnson one important factor which operated in the minds of the Court of Appeal was that the appellant was then on trial for the second time for the same offence, the first trial have been aborted on some procedural error or the other, and the court felt that it would cause great injustice if a third trial were ordered.
Now in the case of R v. Johnson (supra) Anthony Hugh Johnson the appellant and another were first tried with a Jury. The jury disagreed on the verdict even though there was nothing to indicate that there was any misdirection by the Judge.
15

A retrial was ordered by the Court of Appeal. The accused was discharged and
subsequently tried by Stevenson, ]., sitting with a jury. At the end he was
convicted. For the purpose of this judgment it is unnecessary for me to state the
facts. On appeal to the Court of Criminal Appeal in England, that Court ordered
his discharge and acquittal because the trial ]udge had committed a fundamental
error in his direction to the ]ury in respect of the plea of alibi put up by the accused
in that he had directed the ]ury in the following words, among others:
"In setting up his positive defence, the burden which is on the defendant is no more than this; he has only to leave you satisfied that his defence, the defence he has set up has, on the whole, been established. That is to say, it has been established to this extent, that on consideration of all the evidence and the probabilities, you feel that the scale goes down in favour of the defence that he has set up. Goes down on balance in favour of him. That is much less a burden of proof than the burden of proof on the prosecution and, members of the jury, when an alibi is set up, it is of course a defence which is, if it is established, a cast-iron defence."
Before the English Court of Appeal, Counsel for the respondent conceded that this
was a misdirection but urged the Court to sustain the conviction by making use of
the proviso to section 4 (1) of the Criminal Appeal Act 1907 which is to the same
effect as Section 13 (3) of our Court of Appeal Act which I shall deal with later in
this judgment. On this issue the Court of Appeal cited with approval what Lord
Goddard, C] had said in R v. Lobell [1957] 1 QB 547, at 55 thus:
"Had the judge in the present case gone on to say that it was not for the accused to establish his plea with the same degree of certainty as is necessary to establish a case for the prosecution it might have been that we should have had to consider whether this was a case for the application of the proviso."
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Further the Court of Appeal in the Johnson case applied what that court had said
in the case of R. v. Manning [1961] Crim. LR 561 decided earlier the same
year. The court had said in that case -
"it would be unsafe in this case to allow the conviction to stand. There can, as it seems to this court, be no question of applying the proviso to section 4 because this was the second trial. At the first trial, when given proper directions and with no interjections of this sort, the jury disagreed."
The appeal was therefore allowed and the conviction quashed. Concluding the
judgment in the Johnson case the Court of Appeal then said:
"The court has no reason in the world to suppose that the first trial was not properly conducted or that the summing-up was not free from criticism and yet the jury disagreed. It would be quite wrong to apply the proviso in this case and, accordingly, the court has no other course open to it than to quash the conviction and thereby allow the appeal."
As can be seen from these cases one of the pillars upon which acquittals were based was that the second trial following a re-trial of the appellant upon his appeal against conviction at the first trial. Obviously it would be most unfair to order a third trial. That was clearly why the courts were not willing to make resort to the proviso to Section 4 (1) of the Criminal Appeal Act 1907. That proviso was replaced by a proviso similar to Section 2 (1) of the Criminal Appeal Act, 1968. More recently however the position has been changed by the Criminal Appeal Act, 1995. Under Section 2 (1) of that Act, there is now only one single basis for allowing an appeal,
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namely, that the court thinks that the conviction is unsafe. So as today in England,
the position as put by Archibold, Criminal Pleading and Practice (2000 Ed.)
para. 746, page 890 is that -
"If the court was satisfied despite any misdirection or any irregularity in the conduct of the trial or any fresh evidence, that the conviction was safe, the court would dismiss the appeal."
This means in effect that the whole concept has remained substantially the same all
these nearly 100 years, and that position is similar in principle to that laid down in
subsection 3 of Section 13 of our Court of Appeal Act which provides that -
"Where the Court of Appeal in an appeal against conviction, considers that, notwithstanding the fact it is of opinion that the point raised in the appeal might be decided in favour of the appellant, there has been no substantial miscarriage of justice, it may dismiss the appeal."
At this juncture it is also necessary to say that a very similar provision exists in our
High Court Act, Cap. 04:02 when exercising its appellate jurisdiction: proviso to
Section 10(1). In the case of Nini Makwapeng v. The State, (yet unreported)
Cr. App. No. 29 of 1998, judgment dated January 29, 1999, in considering
the application of these provisions I said that -
"in deciding the issue whether or not to set aside the conviction following such an irregularity in procedure, the appeal court must look at all the facts established by the totality of the evidence led at the trial and if it is satisfied that the guilt of the appellant has been established beyond reasonable doubt, ... then the appeal must exercise the power to do justice given to it by the Act establishing it, and dismiss the appeal."
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To show that the provision of subsection 3 of Section 13 of our Court of Appeal
Act is not confined to this country, I wish to say that a similar provision is to be
found in subsection (1) of Section 26 of the Nigeria Supreme Court Act, No. 12
of 1960 says that -
"the court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
Also a similar provision exists in the Criminal Procedure and Evidence Act of Southern Rhodesia, now Zimbabwe, Section 236, and in the South African Criminal Law. The point which I have to emphasise is that in all these jurisdictions, the Legislatures understand that the very basic and fundamental function of the courts of justice is to ensure that no substantial miscarriage of justice is allowed through the operation of the judicial process. In a country like this the court cannot be seen to undermine the very foundation for the existence of the judiciary, namely, justice, unaffected by technicalities and sophistry of the legal profession. And in this it must be borne in mind that throughout the trial up to conviction the learned trial Judge had in mind the very important legal principle that it was the prosecution that had the onus to prove beyond reasonable doubt every ingredient of the offence charged, and of the guilt of the appellant. First at the very beginning of the judgment he sets down the five elements which make up the offence and says clearly that the onus of proof of each beyond reasonable doubt lies on the prosecution. Again later in the judgment the learned trial judge says, "as I have
19

already stated, the burden lay on the prosecution to prove beyond all reasonable doubt that she was the one who killed the deceased with two gunshots." In effect therefore even though the learned trial Judge committed the error of misdirections in the passages cited by learned Counsel, it cannot be said that he was oblivious of the general legal principle as to the onus of proof in a case of this nature.
The conclusion I reach in this case is that this is not one of the type of cases in which a misdirection of this nature should per se lead to a discharge and acquittal of the appellant nor one in which a retrial should be ordered. I take the view therefore that I must examine the case further in order to ensure that the misdirection pointed out have not led to a substantial miscarriage of justice. For, if I come to the conclusion that a substantial miscarriage of justice has occurred through the obvious misdirection then I will be in duty bound to allow the appeal. I believe I can properly carry out that duty only by examining in some detail the evidence that was led at the trial court so that I can decide whether that evidence leads us to the conclusion that in spite of the misdirection the case was proved beyond reasonable doubt and that there has been no substantial miscarriage of justice. I do not believe that it will be prudent of me to go into that at this point in view of the other point vigorously pursued in this appeal, namely, the failure of the prosecution to disclose to the defence at the trial that one witness, Hennie Coetzee, had been granted immunity from prosecution. It is to that matter that I shall now direct attention.
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THE NON-DISCLOSURE TO THE DEFENCE AT THE TRIAL THAT THE WITNESS HENNIE COETZEE HAD BEEN GRANTED IMMUNITY FROM PROSECUTION
It has been argued by Counsel for the appellant in his Heads of Argument and by
Mr. de Silva in his very powerful submissions that since Hennie Coetzee was a
material witness the fact that he was granted immunity from prosecution in terms of
Section 51 (3) (a) of the Constitution before he gave evidence "amounted to such
a substantial miscarriage of justice that the appeal should be allowed with costs for
both the High Court and Court of Appeal proceedings on an attorney and own
client scale." The arguments proceeded thus: if the disclosure had been made to
the appellant before or at the trial,
"(i) that could have enabled Counsel for the appellant to prove the witness's motive in him requiring immunity from prosecution;
(ii) it could have provided a basis for Counsel for the appellant establishing that the witness had an interest to serve in the evidence he gave;
(iii) it was material that was clearly and deliberately withheld from the appellant and the court;
(iv) it was material that should not have been so withheld."
In his Heads of Argument, the respondent has argued that -
"in any event the alleged non-disclosure of the indemnity/immunity granted to PW3 did not present or thwart the defence's wide ranging
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extensive and intensive cross-examination of the said witness, and it is submitted that no prejudice was occasioned to the appellant by their claimed subsequent knowledge of the said indemnity/immunity. More importantly, no miscarriage or failure of justice has been occasioned hereby (sic!); and to the extent that such alleged nondisclosure of the indemnity/immunity may be said to be an error or irregularity, this honourable court can lawfully invoke Section 13(3) of the Court of Appeal Act (Cap. 04:01)."
The Acting Attorney-General proffered strong arguments in the court that indeed the so called immunity was limited as it does not bar the witness being prosecuted later or by a private prosecutor. If a full pardon had been in contemplation it would have been given under Section 127 (1) of the Criminal Procedure and Evidence Act which provides for the giving of immunity to persons who are regarded as accomplices or principals in the commission of the offence charged.
Mr. de Silva submitted that a disclosure of the fact that PW3 had been given an immunity whatever the nature of the immunity was never made to the defence until several letters from the defence to the Attorney-General demanding a copy of the Immunity document to which there was no reply for many months. The first demand was made on April 13, 2000 long after the judgment had been given, just before hearing in this appeal, Mr. Fashole- Luke II who defended the appellant at the trial swore an affidavit saying the existence of the immunity was not disclosed to the defence until October, 2000. On the other hand Mr. Mack who conducted the prosecution deposed in a reply affidavit that he informed Mr. Fashole-Luke II verbally of the immunity during the trial, before PW3 gave evidence.
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Mr. de Silva submitted that the prosecution did not give the defence written notice of the immunity, and written notice was essential in order -
(a)     
to avoid dispute, as in this case;
(b)      so that the full terms of the immunity could be studied;
(c)      so that it might be used to cross-examine the witness.
Mr. Ngcongco, the acting Attorney-General, agreed that it would be good practice if the aforesaid were adopted, but that as at the present, that is not the law in this country. I have no doubt that in this, Mr. Ngcongco is right. It would be preferable if such a notice is given to the defence in writing ahead of the trial. However an oral notice giving the provisions of the law under which it has been given cannot seriously prejudice the case of the prosecution. In this case as Mr. Ngcongco submitted, PW3 was not going to be a witness for the prosecution as the prosecution had nothing in the files of the investigating officers that PW3 was in any way connected with the offence. In the letter of Mr. Tafa, then Acting Attorney-General written to Luke and Associates, on October 24, 2000 (and this same point was made by Mr. Ngcongco in argument)
"Although we learned of it (that PW3 might be accused by the appellant) from the press reports attributed to your client, in our view, once it emerged that Hennie Coetzee was central to the defence case, we considered it our duty to secure his attendance to attend court to give evidence and to be cross-examined by yourselves as in fact happened."
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Mr. de Silva told us that he did not think that it is necessary to go into the dispute as between Mr. Fashole-Luke II and Mr. Mack, because the issue can be determined without going into that dispute. I agreed with that. However it is my view that if the defence knew of the immunity before the witness gave evidence but failed to ask for a copy before the commencement of the cross-examination of the witness, the defence cannot later complain. Mr. de Silva cited a number of judicial decisions in support of his submission that the non-disclosure to the defence by the prosecution of any matter in the hands of the prosecution which is considered material, would vitiate the proceedings.
In the final analysis what is of importance is the quality of the evidence given by the witness, and to what extent that quality might have been affected had the disclosure of the immunity been made to the defence. Mr. de Silva submitted that the nondisclosure should be held to have materially affected that quality, and that had the trial Judge put this into consideration he might not have placed any reliance of the evidence of PW3 so much so that he used his evidence to destroy the alibi put forward by the appellant. On the other hand it was Mr. Ngcongco's submission that it did not have such an effect. In my view in this case the non-disclosure of the immunity did not materially affect the case one way or the other. A serious attempt to prove the witness's motive and that he had an interest to serve was made by the defence through the evidence of the witness under cross-examination
24

and through the evidence of some defence witnesses including that of the appellant. The cross-examination of the witness ran through 61 pages of the record.
Mr. de Silva then went on to submit that on the evidence the witness should have
been regarded at least as a person who has his own purpose to serve in giving
evidence which was diametrically opposed to that of the appellant. It was
submitted that therefore the learned trial Judge erred in not warning himself that it
was unsafe to convict on the evidence of Hennie Coetzee, PW3, without
corroboration. It is not very difficult for me to agree, in favour of the appellant
that Hennie Coetzee (PW3) was a witness with some purpose of his to serve. It was
Edmund Davis, ]., who said in R. v. Prater [1960] 2 QB 464; [1960] 2
WLR 343; [1960] 1 All ER 298; [1960] 44 Cr. App. R83 -
"in cases where a person may be regarded as having some purpose of his own to serve, the warning against uncorroborated evidence should be given."
This principle was applied by the Supreme Court of Nigeria in William Idahosa v. R. [1965] Nig. Monthly LR 85 where that court held that two witnesses for the Crown in a murder case who were charged on a separate charge with the murder of the deceased were clearly interested persons who might have some purpose of their own to serve, and therefore the trial court should have been wary in reaching a verdict of guilty on the uncorroborated evidence of such witnesses. The rule had been considered a year earlier by the Court of Appeal in England in
25

the case of R. v. Stannard St Others [1965] 2 QB 1; [1964] 2WLR 461;
[1964] 1 All ER 34; 48 Cr. App. R 81, where the court said (at page 91 of
Cr. App. R) -
"The rule if it be a rule is no more than a rule of practice ... [it] seems to amount to no more than an expression of what is desirable and what is to be hoped will more usually than, in cases where it seems to be appropriate to the learned judge, be adopted."
On the other hand the Court of Appeal in England, after considering Prater, Stannard and others, said in R. v. Beck [1982] 1 WLR 461; [1982] 1 All ER 807; [1982] 74 Cr. App. 221; [1982] Crim. LR586 that they were not willing to hold that in every case where a witness has a substantial interest of his own for giving false evidence then the court was bound to give such a warning.
The case before this court is in a very substantial way different from all that I have considered above. I have considered them only to show that from whatever angle one considers what happened in this case, the non-disclosure complained of cannot in any way affect the outcome of this appeal. In this case the defence of the appellant is not that she and the witness conspired to murder the deceased. What appears to me to be the allegation was that it was the witness that murdered the deceased without the knowledge of the appellant because he had some purpose of his own to serve. On the other hand, the case made against her and found proved against her according to the learned trial judge is that she and she alone planned the murder and executed it. It boiled down to this: it was either that it was the
26

appellant who murdered the deceased or it was the witness. The learned trial Judge found on the evidence that it was the appellant, and not the witness who murdered the deceased. Mr. de Silva said that this was possible for the reasons that the learned trial Judge did not advert his mind to the fact that PW3 had a motive to murder the deceased, and also that the extra-judicial statement made by Charmaine, DW2 a daughter of the appellant to the police was said by the judge to have had the effect of destroying the evidence of the appellant.
I shall come to the question of the motive of PW3 later but, here now I want to
consider what the learned trial Judge said about the statement which according to
Mr. de Silva is such a gross misdirection, and when taken along with others is
capable of vitiating the conviction. The learned trial Judge had said:
"Again, Charmaine's statement, Exhibit "T", devalues the accused's evidence that she and Charmaine answered the call from Maryana at the same time and destroys the credibility of the accused and her two daughters."
It seems to me that the way to deal with a witness who has come to say something different from what he had said previously is this. The value of the statement is, as has been argued, to discredit the witness but cannot be used as evidence: R. v. Golder [1960] All ER 457; [1960] 1 WLR 1169 45 Cr. App R5. The court may for that reason refuse to believe the witness or to put much weight on the testimony which the witness has given in court. This is the view of the courts in the Canadian case of R. v. Waterfield 61 Gilmore [1947] 3 DLR 362; 88
27

Can. CC 221; R. v. Harris [1927] 2 KB 581; 20 Cr. App. R144; R. v.
Golder (supra). In the Nigerian case of Agwu fit Ors. v. The State 1965
NMLR 18, at 20, Onyeama, JSC said:
"If it appeared that a witness had formerly said or written the contrary of what he later swore in evidence (unless the reason for his having done so was satisfactorily accounted for), his evidence should not have much weight with a jury."
Therefore not much weight, if any, could be put on the evidence of DW2.
And in this particular case the court was right not to have placed an unwarranted weight on the evidence of the two daughters of the appellant, for, it has been said that much weight may not be attached to the evidence of a witness who has an incentive to conceal or mis-represent facts, for example, a witness who is shown to be directly interested in the outcome of the proceedings. Such interest may arise out of blood or family, some other relationship or may arise because of some other common interest which the witness shares with one of the parties. See Hasker v. Summers [1884] 10 VLR 204 (Australia), and Lefeuteum v. Beaudoirs [1897] 28 SCR 89 (Canada). The evidence of such a witness ought not to carry more weight than, or even as much weight as that of an independent witness who is a dis-interested witness. In the present case the witness Aniki who had been a house help to the appellant was never shown that she had any relationship whatsoever with PW3. Therefore one cannot fault the learned trial judge for placing more reliance upon the evidence of Aniki than under the contradictory
28

evidence, as I will show later of Charmaine and her sister, both daughters of the appellant.
It seems to me that the point has now been reached where I should examine the totality of the evidence given in this case. If I come to the conclusion that a miscarriage of justice has occurred by reason of the misdirections, she would be entitled to a discharge and acquittal. But if I come to the firm conclusion that despite the misdirections no miscarriage of justice has occurred and that no doubt exists as to the guilt of the appellant then I am permitted to call in aid the provision of Section 13 (3) of the Court of Appeal Act and dismiss the appeal. I shall now proceed on that examination.
IS THE EVIDENCE OF SUCH A QUALITY AS TO WARRANT MAKING RESORT TO THE PROVISION OF SECTION 13 (3) OF THE COURT OF APPEAL ACT
What is left for me to consider is whether the evidence on record is of such quality as to warrant making a resort to the provision of Section 13 (3) of the Court of Appeal Act. I believe that it is the duty and responsibility of this Court to ensure that no substantial miscarriage of justice has occurred in the verdict that has been delivered by the trial court in this case. For, I wish to repeat that if upon a sober and full consideration of all the evidence I am left even with a reasonable doubt that there has been a miscarriage of justice in this case - more so in view of the fact that
29

this is a murder case - then I am bound to allow the appeal and order a discharge and acquittal of the appellant. But if after such a full and sober and full consideration of all the evidence, including of course that led by the defence, I have no doubt in my mind that there has not been a miscarriage of justice, then I am in duty bound to make resort to Section 13 (3) of the Court of Appeal and uphold the conviction of the appellant for the offence charged, notwithstanding the irregularities and errors committed or made by the learned trial Judge.
In this case there is no eye-witness to the murder of the deceased, and therefore the trial court had no alternative than to consider all such circumstantial evidence that existed in the case to see if in its totality it left no doubt as to the guilt of the accused. As it is well known it is not the requirement of the law that direct evidence of the commission of an offence must exist before a conviction can be sustained. Indeed in many cases, convictions in cases of the nature of the one under consideration here only circumstantial evidence is available, and the courts have not shied off from basing convictions on such circumstantial evidence provided it is of such quality as satisfied the basic requirement of the onus of proof as enshrined in our Constitution and our laws. See R. v. Sala Sati [1938] 3 WACA 10. And also R. v. Chung t\ Miao [1928] 21 Cr. App R 56. In many cases, such as in this case, it is invariably the only type of evidence that is available, especially in a well planned murder case. See also R. v. Blom 1939 AD 188.
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The case made against the appellant is as follows. The appellant fell in love with the
husband of the deceased, and they became lovers. Whether sex between them
began before the death in November 1995 of the appellant's husband, Mr. Bosch
or not is immaterial to decide. But they were clearly in love with each other before
then. The appellant was a close friend of the deceased, so much so that when the
dead body of the latter was discovered, she was one of the very first persons that
deceased's daughter contacted by telephone; they were in fact like sisters. On June
17, 1996, the appellant took the deceased along with her to South Africa to visit
her mother. They brought back the applicant's mother on ]une 22, 1996 so that
she could stay with her. Curiously only three days later on ]une 25, 1996, she
went back to South Africa to Dennis Webber with whom her late husband had
deposited his pistol. She wanted to collect the pistol. According to Dennis
Webber, the appellant "asked me if she could lend the browning pistol because she
wants to buy a pistol in Botswana and wants to take it to practice with the pistol...
She said she wanted to take it to practice in Botswana. I mentioned to her it is
illegal she cannot do so." In effect, he explained that she could not take it through
customs to Botswana, it is illegal. He continued his evidence thus:
"When we were discussing, I said it is not worth taking it to practice. I tried to convince her that she cannot put such a thing and the more I was convincing her the more she was wanting the pistol. I gave her the pistol. She did not accept the fact that I did not want her to take it there."
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She did not tell him that she was going to sell it to another buyer who had sent her
to collect it. At her request, he showed her how to use it, and he made sure that it
was unloaded when he gave it to her to use it. According to the witness, the
appellant said that she wanted only four rounds of ammunition. He told her "that
it was ridiculous to practice with only four ... (but) she insisted that she wanted
only four." Later in the evening after the arrival home of his son who was keeping
the ammunition he instructed him to give her a box of 25 rounds of ammunition.
His son refused to give her the ammunition. The witness then continued his
evidence thus:
"She told my son to go and fetch the ammunition and the fire arm as I have not paid for it and it belongs to Mr. Bosch. When we refused to give it to him she said you think I am going to kill somebody."
After that they all went to bed. The following morning at 5.00a.m the witness woke the appellant and once more pleaded with her not to take the pistol to Botswana. Thereupon the witness phoned Michael Bosch in South Africa, brother to appellant's late husband. He had gone to work so he spoke with Judith Bosch his wife. Judith then asked to speak to the appellant. She told Judith that she was definitely taking the pistol to Botswana. Judith repeated this to the witness after the telephone had been handed over to him by the appellant. So at about 6.45 a.m the appellant left the Webbers on her return to Botswana. That was June 26, 1996. Judith Bosch confirmed the telephone conversation. In her evidence she said:
32

"I told her it is illegal to take a weapon to Botswana that if somebody caught her with the gun she would be locked up in Botswana ... She told me I must not worry she will hand the gun over at Nietverdiend Police Station for safe keeping before entering Botswana/7
The appellant got back to Botswana at about 2.00 p.m on the same day. She said that she first went to see Hendrick Coetzee (PW3) (usually referred to as Hennie Coetzee) in his office. There she left the gun and box of ammunition on Coetzee's table. As she left them on the table, one Philip Botha came in to the office. She was not sure if he Philip Botha saw them or not. The said Philip Botha was not called as a witness. She then went to a school meeting. The meeting having aborted she went home and got home at about 7.30 p.m. She remained at home and never went out until she was called out after the murder of the deceased.
On the same day June 26, 1996, at about 8.45 p.m the same gun was used to shoot and kill the deceased. The person living with the appellant Charmaine, DW4 who happened to be her young daughter had been taken to dinner with the knowledge and consent of the appellant by the only person living with the deceased who happened also to be the deceased's daughter, sometime before 8.00 p.m. According to the appellant she then she watched television from about 8.10 p.m till about 10.00 p.m when she went to bed. She never stepped out of the house until she was summoned to the house of the deceased after the deceased had been shot and her body discovered by the deceased's daughter, the same girl who had taken her own daughter out to dinner. But there is the evidence of Aniki
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Ntwayagae (PW1) who had been a housemaid to the appellant since 1995. She told the Court that the deceased drove out of the house at about 8.00 p.m., whilst she went to her own quarters at about 8.30p.m. According to the witness, she did not see the appellant until about mid-night, after the appellant had been to the deceased's house and had come back. She told the court that later the following day the appellant's new husband Mr. Wolmarans came to warn her not to tell the police that the appellant had gone out that night and whenever he came to the house thereafter he would warn her against telling the police anything and that if she did he would kill her. The appellant's daughter Charmaine and her sister Sonei, 13 years old gave evidence in support of her evidence that she never went out of the house between 7.30 p.m and 12.00 midnight or thereabouts.
Then we have the evidence of Michael Bosch, PW4, brother to the appellant's deceased husband. He lives in South Africa. On September 14, 1996 on coming out of his room in his house he met the accused. She held him by the arm and asked him to go to his bedroom. That was about 8.00 p.m, and she was carrying a handbag under her arm. According to the witness the appellant appeared very nervous; she was trembling slightly. When she opened the handbag he saw the pistol in question in it. According to the witness "she asked me to quickly take it and put it as quickly as possible so that no one should see it. ... I took the pistol and put it in my drawers in the room. As soon as Marriette left the room I took it from the drawer and put it in another place." He then confirmed in the presence
34

of his wife, Judith, the serial number on the pistol. After that he put it in a safe in their house. Later he asked Judith to hand it over to the police which she later did. I must say that it is rather curious that Counsel for the defence did under cross-examination provide some corroboration to part of the evidence of this witness. From a calender shown to the witness by Counsel, the witness under cross-examination pointed out that on June 26, he had seen that his wife, PW2 had marked the calender with "Dennis Webber telephoned about weapon which Marriette took." This would appear to be some indication that the evidence concerning the reluctance of Dennis Webber to deliver the pistol to the appellant has not been a fabrication. At this point it may be useful to point out that defence Counsel suggested to Judith Bosch and repeated the assertion on more than two occasions that the appellant never took the pistol to Judith and Michael Bosch and that was why her finger prints were not on it. But very significantly the appellant herself later told the court that she took the pistol to them, a totally different story from the case put forward by the defence when PW2 was giving evidence.
Now it seems clear that the defence of the appellant was that she went to South Africa to collect the pistol at the command of PW3, and it was also at his command that she went to return it not to Dennis Webber from where she had collected but to Michael Bosch. However she said that Coetzee did not have any authority to command her, but that she was afraid of him. She suggested that Coetzee might
35

have put a spell on her as a result of which she had a continuous head-ache and she had to be cured of it by hypnosis.
However, during the cross-examination of prosecution witnesses Counsel for the appellant at one time suggested that the deceased must have committed suicide (which was demonstrably impossible); and at another time that Judith Bosch conspired with Hendrick Coetzee to murder the deceased; and yet at another time that it was Hendrick Coetzee that in fact murdered the deceased. It was even suggested by Counsel to the appellant in his cross-examination of Judith Bosch on two different occasions that she wanted the appellant hanged for this offence so that she Judith could inherit the wealth of Justin Bosch, her late brother-in-law. There was no evidence in support of any of these suggestions save the allegation that Coetzee had a motive and an opportunity to commit the offence.
In her defence, as I have said more than once, the appellant alleged that it was Hendrick Coetzee PW3 who indeed murdered the deceased and in making that suggestion her case was that he had the chance and a motive to commit the offence. Having brought that defence to the notice of the prosecution, the prosecution then had to show, if they were to succeed, that that defence was totally false. For that reason they called Hendrick Coetzee to give evidence and he did so as PW3.
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In his examination in chief, he told the court that he never sent the appellant to collect any gun for him from South Africa as alleged by the appellant and at no time did he ever discuss about any gun with her. He went to his office and left at about 5.00 p.m or 5.30 p.m on the day in question to attend a braai in the house of one of his co-workers, one Mark Nadauldt. He left there at between 11.00 p.m and 11.30 p.m and went home direct without calling anywhere else. Under cross-examination the witness denied going to the deceased on June 26, 1996 at between 10.00 p.m and 10.30 p.m to plead with her not to expose his financial improprieties with the company's funds; and that it was when the deceased refused to yield to his entreaty that he shot her. He denied that suggestion. On further probing by defence Counsel the witness said: "1 have never spoken to her (the deceased). I have never been there." Later Counsel suggested to the witness that on June 26, 1996, the appellant handed him a gun at Nietverdiend Police Station. On the other hand when she came to give evidence she was led during examination in chief that on arrival in Gaborone on June 26, 1996 at about 2.00 p.m she went direct to Coetzee's office. Coetzee opened the door for her, she put the pistol down on a table in his office, and that was where she left the gun and the ammunition. And under cross-examination she denied the suggestion which her Counsel had earlier made that she had delivered the gun to Coetzee outside the Nietverdiend Police Station on June 26, 1996. The following emerged from her testimony under cross-examination:
37

"Mr. Mack: Yesterday you told the court that Hennies Coetzee brought the
pistol to you 2 days after Rita's death. Accused: Yes. Mr. Mack: You went on to say when he gave you the pistol back he told
you he did what he intended doing? Accused: That is what he repeatedly said. Mr. Mack: My question is you knew all this time that Hennie Coetzee told
you he had done whatever he intended doing? Accused: Yes I can remember that. Mr. Mack: You always remember that he told you if anybody found the
pistol on you, you will be jailed?
Court:   What did Hennie Coetzee tell you?
Accused: Hennie said if they find the pistol with me I will go to jail. Mr. Mack: You also remembered that he said this to you? Accused: Repeatedly the same thing on that day."
Later under cross-examination, she admitted that she did not take the pistol to Michael Bosch until September 13, 1996, a day before she went to a designer for her wedding dress to be worn at her marriage to the husband of the deceased. What is significant here and if she was to be believed, it meant that she had very strong reasons to believe that the pistol had been used to murder the deceased on
38

June 26, 1996 and yet she kept it for about two weeks thereafter before she delivered it to the Michael Bosch on September 13, 1996.
EVALUATION OF THE EVIDENCE
In this country, like all other countries in the Commonwealth in which a Judge is both the judge of fact as well as of the law, and appeals are by way of re-hearing, the duty of the Court of Appeal is to re-examine the whole evidence both oral and documentary as appears on record. In other words, apart from the duty of the Court of Appeal to consider whether there has been a misdirection or a mis-reception or wrongful rejection of evidence, the court is to examine the whole course of the proceedings at the High Court. The Court has the duty not only to review the whole evidence but to examine the case as a whole. The story of the appellant is obviously incredible and no reasonable person can believe it, save as a confirmation of the allegation that it was she who indeed killed the deceased.
In my view, it is absolutely impossible to hold that the learned trial Judge was in error by disbelieving the allegation that it was Hennie Coetzee and not the appellant that shot and killed the deceased.
Mr. de Silva very meticulously took us through the evidence of defence witnesses and concluded his submission by saying that at least that body of evidence was sufficient to cast doubt on the prosecution case. First the evidence of Sonei Bosch
39

and Charmaine Bosch both children of the appellant. Even though they are children of the appellant, yet they were witnesses who could tell the truth. However, as I said earlier by reason of their relationship with the appellant and the terrible contradiction in their evidence the weight to be attached to their evidence could not have been as great as the weight to be attached to that of Aniki, a mere servant of the appellant. In any event the learned trial Judge held that he could not believe them, and no convincing reasons have been adduced to show that he was wrong in so holding. Sone was certain that when that fateful telephone call was made announcing the death of the deceased Charmaine, her sister did not pick up the telephone in the living room at the same time as the appellant picked it up in the bedroom. Her sister Charmaine told the court that her boyfriend Ruan who went with her mother to the house of the deceased told her over the telephone from that house that they thought that the deceased might have died of heart attack. Later when she went to the deceased's house long after 11.00 p.m one of the Med Rescue team told her that he thought the deceased had died of a heart attack. This is totally at variance with the evidence of the police officer who got to the scene at about 10.00 p.m and who told the court that he found a bullet stuck in the floor and blood stains also on the floor. Although Charmaine was emphatic in her assertion that her mother, the appellant had received the telephone call before she arrived home from her dinner, the mother told the court that both she and Charmaine received the information of the death of the deceased at exactly the same time, she taking the telephone in the bedroom, and Charmaine taking it in the
40

sitting room. The third version was given by Sonel Bosch, the other daughter of the deceased who told the court that when the phone rang she and Charmaine were in the appellant's bedroom. Her cross-examination went like this:
"Mr. Mack: You say you saw Charmaine picking the phone?
DW1:     Yes.
Mr. Mack: Where was she?
DW1:     She was in my mother's room.
Mr. Mack: It is no longer the two of you, she was also there?
DW1:     It was me, my mother and Charmaine.
Mr. Mack: Did Charmaine give that receiver to your mother?
DW1:     Yes.
Mr. Mack: In your mother's room?
DW1:     Yes.
Mr. Mack: Your mother says Charmaine answered the phone from the living room and that she answered it from the bedroom, are you not mistaken?
DW1:     No."
The only conclusion that can be drawn from all these is that no reasonable person could believe the evidence of the two children, and in my view the learned trial Judge was right in totally rejecting their evidence.
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Now I come to the evidence from which we were told that the learned trial judge could have held, at least that it was probable that it was PW3 who killed the deceased, in which case the appellant would have been entitled to an acquittal. Mr. de Silva did not lay some emphasis on the evidence of DW4 Karenza Van Wyk, a secretary with the Grand Palm Hotel who was the divorced wife of PW3. He had been the petitioner in the divorce proceeding. Her evidence was to show the propensity of PW3 to owe money and to fiddle with the accounts of the company for which he was working. She laid the foundation for the allegation that PW3 had the motive to kill the deceased to cover up his mis-handling of the company money as Financial Secretary to the company. She told the court that on July 27, 1996, PW3 asked her why her outside lights were not on at about 10.00 p.m the previous day, that he noticed this whilst driving around, and that the deceased had been murdered the same night. To show to the court that PW3 was a violent man who could kill, the witness told the court that PW3 had visited her one night and demanded a document from her. She had to give him the document for fear of him killing her with a knife. In other words if he could threaten DW4 with murder, he could just as well have murdered the deceased.
Mr. de Silva laid much emphasise on the evidence of the possible motive of PW3 to murder the deceased. That allegation was based on the allegation that PW3 committed some impropriety with the funds of his company which was to be discussed on June 27, 1996, and the deceased threatened to expose that
42

impropriety to the auditors at the meeting. It was suggested that it was for that reason that he went to the house of the deceased to attempt to persuade her not to reveal that secret, and that it was after she refused to keep her mouth shut that he shot and killed her. If indeed he left the braai at about 8.30 p.m or a little after -a point which I shall consider presently - and he had to drive 10-15 minutes before reaching the home of the deceased there could not have any time, if indeed there was any at all, for attempting to persuade the deceased between the time of her arrival there and the shooting at 8.45 p.m. And the deceased was shot in the back with a cup of tea in hand. I do not consider it necessary to set down the facts of the allegation in detail for it is clear that the mere existence of a motive to kill is not evidence of killing. Although in the words of Lord Atkins in R. v. Ball [1911] AC 47 HL, "it is more probable that men are killed by those that have some motive for killing them than by those who have not", but then when two or more persons have different motives to kill then the significance of motive becomes of less importance in considering the evidence of who murde