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Dipholo v The State (Criminal Appeal No. 17 of 201) [2002] BWCA 12 (30 January 2002)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
Criminal Appeal No. 17 of 2001
High Court Criminal Trial No. 25 of 1999
In the matter between:
RONALD "SP1NKS" DIPHOLO  Appellant
and
THE STATE        Respondent
Mr. T. Joina for the Appellant Mrs. L. Dambe for the Respondent
JUDGMENT
CORAM: KORSAH J.A WEIR J.A BLOFELD JA
WEIR 1. A.:
The appellant was convicted after trial of the murder of one young man and of the unlawful wounding of another in a district of Gaborone known as Partial Location. The court a quo found extenuating circumstances pertaining to the murder and sentenced the appellant to imprisonment for 15 years. A concurrent sentence of 5 years imprisonment was passed in respect of the unlawful wounding. No appeal is taken against these sentences.

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On the night in question, five young men were walking along a path when a man unknown to them passed them. This man uttered an insulting remark and some kind of altercation took place. He then made to produce what was thought by members of the group to be a weapon. They thereupon turned and fled in fear. The stranger then fired a single shot and the bullet passed through and wounded one of the men, thereafter entering the body of another which caused him injuries from which he died. The court a quo held that the actions of the assailant amounted in law to murder in one case and unlawful wounding in the other case. It was not submitted that the court was in error in reaching these conclusions.
The question at issue at the trial was whether the state had proved beyond reasonable doubt that the appellant was the person who had fired the gun. At the time of the incident it was dark and none of the young men who were called to give evidence identified the assailant. There was no other piece of evidence at the locus which provided any clue as to the identity of the man who fired the gun. In order to prove its case, the state relied upon evidence relating to a bullet which had been recovered from the body of the deceased and also to parts of a gun which was later discovered elsewhere. These items were examined by a ballistics expert. The prosecution also relied upon other circumstantial evidence, including certain statements made by the appellant in the days following the incident, and the question in this appeal is whether the evidence which was accepted by the court a quo was sufficient to enable an inference of guilt beyond reasonable doubt to be drawn against the appellant.

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After the post mortem examination, the pathologist who recovered the bullet from the body of the deceased handed it over to a police officer and this was later sent for examination by the ballistic expert. In the course of investigations the appellant, who was at that stage a suspect, led the police to an area of ground where he uncovered part of a pistol, which was referred to in evidence as a pistol slide. This weapon and the bullet were examined by the expert. He stated in evidence that the bullet in question fitted the pistol slide and was of 7.62 mm calibre. This could have been important evidence incriminating the appellant, but owing to a mistake or carelessness on the part of the police in conserving these items prior to the trial, it was not established that the bullet which came from the body of the deceased was the bullet which was found to fit the pistol slide and was of a particular calibre. Accordingly the trial judge, quite rightly in my view, disregarded this evidence for the purpose of determining whether the case against the appellant had been proved.
The facts and circumstances upon which the trial judge founded in his judgment in deciding that the appellant was the assailant may be summarised as follows: First, on his own admission, the appellant on the night in question was in Partial Location. Second, three of the young men described the stranger whom they encountered as being a tall man and the trial judge observed that this was indeed the case. Third, the appellant was at this period of time in possession of a pistol which he proceeded to bury during the week following the incident and which he later retrieved and subsequently disposed of by throwing the dismantled parts from a train. Finally, the

4
court a quo had regard to certain remarks made by the appellant to some friends which pointed to his knowledge of, and involvement in the shooting.
Mr. Joina who appeared for the appellant asked this court to consider the heads of argument which had been lodged but made no separate oral submission. Mrs. Dambe was content to follow the same course.
The first head of appeal ( which comprised most of the substance of the written argument) was that in order to prove the appellant's guilt, the State had to link the weapon which was in his possession to the scene of the crime. Without such proof the State's case must fail. No eye witness saw what was the type of gun. Moreover the evidence tracing the collection of the bullet from the pathologist to its production in court was tainted and contradictory. It was contended that the evidence of Detective Sergeant Maitseo who spoke of these matters should not have been admitted because "it amounts to leading evidence." The court a quo is said to "have lost control and allowed the prosecutor to lead his witness despite the defence objection and as such was prejudicial to the defence case." The evidence of the Detective Sergeant should not have been believed. Mr. ]oina submitted that the court a quo that the court should have exercised its power and excluded that evidence and "expunge it from the records." The last statement in the heads of argument read as follows: "5.3.2 It is our respectful submission that His Lordship erred by convicting when there was no established link between the bullet nose and the slide."

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I have not found it easy to follow the foregoing line of reasoning but, in my opinion, this argument is entirely beside the point as the trial judge held that this line of evidence fell to be disregarded in its entirety. For this simple reason, the first head of argument fails.
The judge went on to point to other circumstantial evidence and he recognized that
the crucial issue in the case was whether these pieces of evidence were sufficient to
bring home the guilt of the accused. The court said at page 62 :
"There is no direct evidence linking the accused with the murder of the deceased or with the unlawful wounding of Mothei Sebele. There was no eye witness who could identify the accused and no link could be established between the bullet head removed from the body of the deceased and the pistol slide recovered from the accused. The only evidence is of a circumstantial nature, and, accordingly the evidence must be scrutinised applying the two rules laid down in the case of R V. BLOM 1939 AD 188 where Watermeyer C.J. held that:
'In reasoning by inference there are two cardinal rules of logic which cannot be ignored:
 (1)     The inference sought to be drawn must be consistent with all the proved facts. If it is not, the inference cannot be drawn.
 (2)     The proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn.
If they do not exclude other reasonable inferences then, there must be a doubt whether the inference sought to be drawn is correct.
These rules have been adopted in Botswana, and have been applied in numerous cases."
The other main head of argument to which I now turn correctly identifies the real issue in the case, namely whether the circumstantial evidence was sufficient for the

6
court a quo to conclude beyond reasonable doubt that the appellant was the assailant.. The written argument directs attention to various decided cases, well known both in England and South Africa, as to the proper approach to the evaluation of circumstantial evidence. There is no need to refer to these cases as the leading cases on the subject are in the judgment of the court a quo of which the Blom case supra is an example. No criticism has been directed at the approach adopted by the trial judge in evaluating circumstantial evidence. The argument concentrated on the sufficiency of the evidence and in particular on the evidence of Dixie Nasha described for some reason in the heads of argument "State Star Witness"
It was argued that the testimony of Nasha was unreliable and that it was motivated by the desire "to clear the way for his pending robbery trial in which he was one of the accused." As I understand the tenor of this argument, the inference which this court is asked to draw is that if Nasha's evidence was rejected the case based on this line of evidence could not be said to have been proved.
The trial judge was in the best position to form a view on the credibility and reliability of this witness and it would require very strong reasons for this court to disturb any findings based on the testimony of Dixie Nasha. In my opinion there are no grounds for doing so. The trial judge stated quite clearly (on page 49) that he approached the testimony of all the witnesses who were friends and

7
acquaintances of the appellant with considerable caution. With regard to Dixie
Nasha, he said on page 50:
"I deal first with the evidence of Dixie Nasha. Apart from his alleged involvement in serious crimes, there are other reasons to treat his testimony with extreme caution. He has a motive to incriminate the accused in retaliation for the accused testifying against him as an accomplice witness in the robbery trial. (It should be noted, however, that the Accused "turned" and reverted to being a co-accused with Dixie in that case). He has a motive to minimise his own role in the disposal of the gun, which might render him liable to prosecution as an accessory after the fact to serious crimes, including murder. He has a motive to deny involvement in the robbery, for which he is standing trial, and in respect of which he pleads not guilty. Finally despite his denials, and those of the Investigating Officer, he may nurture hopes of favourable treatment from authorities in his outstanding trials if he give evidence supportive of the State in this case. In these circumstances it would not be safe to rely upon the evidence of Dixie Nasha alone. However, to the extent that his evidence or parts thereof are found to be true, they may weigh in the balance when considering the cumulative evidence against the Accused."
The learned judge then proceeds to give what, in my view, was a most careful and detailed analysis of the evidence of this witness. He rejected much of his testimony, including parts which are narrated in the heads of argument. At the same time he has found parts of his evidence credible and gave reasons for doing so. I am unable to find any good grounds for criticizing his treatment of this evidence.
The parts of evidence which the court a quo did accept were of importance in the proof of the appellant's guilt. According to Dixie Nasha, the appellant said he had "a big problem" and went on: "What would you say if I told you that I killed or wounded someone?," and later on when the appellant and Nasha examined the

8
gun after it had been retrieved by the appellant from its hiding place, the appellant said that he made a "serious mistake."
Further, under this head of argument, it is contended that the circumstantial
evidence had not excluded other possible inferences and four points are made (see
page 17 of the heads of arguments) -
(i) The deceased could have been shot by Dixie Nasha or any other person.
(ii) A different pistol with a different slide could have been used.
(iii) The accused's explanation is possibly true particularly that he was candid to the Court.
(iv) Possibility may exist that on the day in question the accused did not have a pistol at all.
My comments on these points are:
(i) It was never suggested nor, so far as I am aware, was it put to him that Dixie Nasha killed the deceased, and there were no circumstances which pointed to anyone other than the appellant being involved.
(ii) This is irrelevant as the evidence about pistol slide was not taken into account when the court was considering proof of the crimes.
(iii) The trial judge gave clear and cogent reasons for disbelieving the testimony of the appellant and the heads of argument do not specify what, if any, criticism there can be made of his analysis.
(iv) This possibility was excluded by the evidence inferring the involvement of the appellant and no one else in the shooting.
It is to be emphasized that the evidence concerning the actings and behaviour of
the appellant was not confined to that of Dixie Nasha. There was also the evidence
of a friend, Ishmael Olekile about enquiries by the appellant concerning whether a

9
particular bullet could be linked by the forensic pathologist to a rifle which he showed the witness. There was evidence of a statement made by the appellant to a psychiatrist who examined him and a statement to a similar effect made by him to another friend David Tumagole, that he had a gun that he dismantled it because of his fear of being suspected of the crime. Finally there was the significant and unchallenged evidence of Topo Sesebang who spoke of the appellant saying to him on the day after the murder that he "had frightened some people." The cogency of that evidence comes from the fact that at the time of the incident the group of young men had in fact been frightened by the stranger causing them to flee. So, in my view, there was evidence from several sources other than Dixie Nasha which in broad terms tended to support or confirm his evidence.
The remaining head of argument concerns a witness for the prosecution, Kabelo Basitang, who was serving a 25 years jail sentence and was sharing a cell with the appellant before the trial. There was produced in court a statement purportedly made by him to a police officer and a letter written by him to a third party, both amounting to confessions by the appellant of his involvement in the crimes. In court Basitang stated that the police statement was dictated by a police officer and he was induced to make it, and he denied all the knowledge of the letter. In that situation, these matters were worthless as evidence against the appellant. It is contended in the heads of argument that the trial judge should have considered the evidence of this witness 'in so far as it was favourable to the defence case." I cannot see any substance to this in this argument since in fact the evidence was

10
not favourable to the appellant or indeed to the prosecution. The court a quo had good reason to reach the conclusion that this evidence was not worthy of belief, and to disregard it in its entirety.
In my judgment the heads of argument disclose no grounds for us reaching a different conclusion from that of the court a quo. Kirby J. gave the most careful attention to this case. In no instance did he misdirect himself in his application of the law or in his analysis of the evidence. If I may say so, he produced a lucid and compelling judgment in a difficult case in terms which could not have beeen improved upon. The appeal is dismissed.
DELIVERED IN OPEN COURT AT LOBATSE THIS .M.DAY OF JANUARY 2002.
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LORD WEIR JUDGE OF APPEAL

I agree           y        f(zf/Mi„ t\
teHtrXTKORSAH^ 'JUDGE OF>PP AL

I agree
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SIR JOHN BLOFELD JUDGE OF APPEAL

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