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Gate v The State (Criminal Appeal No. 38 of 2000) [2001] BWCA 6; [2001] 1 B.L.R. 156 (CA) (31 January 2001)

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In relation to the first argument it was pointed out that the material witnesses at the scene of the alleged crime were not only PW3 but also Mololane and another person called Tswakgaite. Neither of these persons were cited to attend the trial and no explanation was offered to account for the failure on the part of the State to call these witnesses. The remaining witness PW3 was criticized by the trial judge as "at times exhibiting some enthusiasm" and as tending to exaggerate. Counsel submitted that the judge should have treated the evidence of this witness with caution and should not have relied upon him. With a witness of this character and in the absence of other material witnesses it was submitted that there was insufficient reliable evidence with which to hold the case against the appellant proved.
It is not known what the evidence of the missing witnesses might have been. Their evidence might have favoured either the appellant or the prosecution. We were invited to infer that in the unexplained failure of the State to lead these witnesses their evidence must have favoured the accused. We are not prepared to go as far as this. However, it can be said that their absence was certainly a matter for adverse comment and in such a situation the court would have had to examine the rest of the evidence for the prosecution with particular care in order to be satisfied beyond reasonable doubt that the case had been proved.

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In this case, if the court had relied solely on the evidence of PW3 I would have regarded Counsel's submission as having force. However there was evidence of certain admissions made by the appellant upon which the court a quo founded in holding the case proved. The first of these admissions was made to Gustel Heinz (PW1) shortly after the death of the deceased. He stated that on meeting the appellant the latter informed him that he had killed a person by stabbing him with a knife. He showed PW1 the knife which was taken from him and together they went to the Police Station where the knife was handed in. The second admission was made some 6 days later to a judicial officer (PW6). I shall refer to this statement in more detail later. For present purposes it is sufficient to say that these admissions in broad terms confirm the eye-witness evidence of PW3 and in that situation, in my judgment, there was ample material for the court a quo to hold it proved that the accused had assaulted the deceased with a knife. Accordingly I consider that the first submission of Counsel is without substance.
The alternative submission of Counsel was that court a quo should have convicted the appellant not of murder but of manslaughter on the ground that the appellant had been provoked into stabbing the deceased. In evidence the appellant stated that he had approached the deceased and his brother asking for the return of

seme money which they had taken from him. This caused his brother, Mololane, to hit him with a brick from behind. Mololane took out a knife, hit him with another brick whereupon the appellant turned around and snatched the knife away from Mololane. He then turned on the deceased and stabbed him. Counsel for the appellant submitted that in view of the fact that the appellant had been assaulted earlier, that his money had been stolen from him, that he was menaced by the deceased and two others and struck with bricks, in this situation his use of the knife in retaliation amounted to provocation in law.
Counsel for the appellant submitted that in approaching this question the court a quo had failed to give due emphasis to the effect of the assaults with bricks and the grabbing of the knife from the deceased's brother before the appellant stabbed the deceased. However, it is clear from reading the judgment that the trial judge did considered this evidence. He held the evidence relating to the throwing of the bricks and the grabbing of the knife from Mololane to be false and we are not persuaded that he misdirected himself in doing so. The trial judge was fully entitled to reject this evidence, bearing in mind the statement made by the appellant to a judicial officer a few days after the event. The material part of his statement is as follows:
"When I was still talking to his younger brother the

deceased who was standing behind me then hit me with.a brick on my right hipbone. I told the deceased's younger brother to look what his brother was doing to me and that he should give me my money so that I can go and that if he does not have the money he should tell me and I will leave.
Whilst still talking to his younger brother the deceased assaulted me with a brick in the same area again. I left the deceased's younger brother and approached the deceased and told him to leave me alone as they had already injured me. I further informed him that I will use a knife in my possession if he persists in what he was doing. After saying this the deceased kicked me on my right hand wrist.
I retrieved a knife from my pocket, I unfolded it and stabbed him on the chest and he fell down."
This passage contradicts the appellant's evidence that he wrested the knife from Mololane before using it on his alleged attackers. On the contrary it is plain that, according to his own statement, he warned them that he would use his own knife if their conduct continued in this way, and this account in my view serves to confirm the essential reliability of the evidence of FW3 as to

what he said and did 20 minutes beforehand.
The Court a quo dealt with the issue of provocation in the following way.
"It is common cause that sometime before the accused stabbed the deceased there was a fight in which the accused and the deceased were involved. The evidence of PW3 which had not been disputed under cross examination is that approximately 20 minutes elapsed from the time the combatants were separated up to the time when the accused left FW3 sitting under a tree after drinking the milk and brandy. In these circumstances there is no doubt that sufficient time had elapsed after the fight for the accused's passion to cool and in my view it cannot be said that the accused acted in the heat of passion when he stabbed the deceased and I therefore am not satisfied that the stabbing of the deceased bears a reasonable relationship to the provocation which was offered to the accused by the deceased in the form of the fight"that took place'some 20 minutes before the accused stabbed the deceased. Even if it is accepted that the accused and the deceased were fighting just before the accused stabbed the deceased and that the latter had provoked the accused, the evidence which I