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State v Charles (Criminal Appeal No. 38 of 201) [2002] BWCA 18; [2002] 1 B.L.R. 89 (CA) (30 January 2002)

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IN THE COURT OF APPEAL OF BOTSWANA HELD AT LOBATSE
CRIMINAL APPEAL NO. 38 OF 2001
HIGH COURT CRIMINAL TRIAL NO F19 OF 1999

IN THE MATTER BETWEEN:
THE STATE
Vs
NANGUBE MAJOBE CHARLES
MR LZ. NGCONGCO FOR THE APPELLANT MR D MOROTSI FOR THE RESPONDENT
APPELLANT
RESPONDENT

JUDGMENT
CORAM: P.H. TEBBUTT, A.J.P: C. PLEWMAN, JA.: J.M. NGANUNU, A.J.A.
TEBBUTT, A.J.P:
The respondent, Nangube Majone Charles, was charged in the High Court before Mwaikasu, J. with a number of offences alleged to have been committed by him at Mautlakgang Lands in the Central Administrative District of Botswana during the

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period 24 to 27 October 1994. He was represented at the trial by Mr. Morotsi who also appeared for him before this Court.
When the trial commenced Mr. Morotsi said:
"We wish another plea to be taken because we are changing the plea."
Twelve charges were then put to the respondent who, after they had been read to him, said that he understood the charges and pleaded guilty to all but two of them. The State thereupon withdrew the latter two charges.
Those charges, to which he so pleaded guilty, and the brief facts in regard to them, are the following: Count 1 was a charge of murder and Count 2 was one of causing unlawful grievous harm. It was stated that on 22 October 1994, at about 8.30 p.m., the respondent fired a shotgun into the house of Mkhuza Kelapile, killing the latter's wife, Gadzani Kelapile, and severely wounding him. A post-mortem examination of the deceased showed that the cause of her death was gunshot wounds, one of which had penetrated her heart. Her death was the subject of the murder charge. Count 3 alleged that the appellant unlawfully had in his possession on 22 October 1994, a double-barrelled shotgun. Count 6 (Counts 4 and 5 having been withdrawn) was one of arson. The agreed facts stated that the

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Respondent on 27 October 1994 set fire to two huts used as dwelling houses belonging to one Soft Tsheko. The remaining six counts were all of attempted murder in respect of Soft Tsheko and four of her children and a grandchild who were all sleeping in the huts when they were set alight on 27 October 1994, but who managed to escape from the huts which were gutted by the fires.
A statement of the facts relating to the charges was read to the respondent who, in the presence of Mr. Morotsi, agreed with them.
The learned trial Judge then convicted the respondent on his own pleas of guilty to counts 1 to 3 and 6 to 12 of the indictment.
The respondent had on 7 November 1994, following his arrest made a voluntary statement to a Magistrate which was admitted into the evidence before the trial court. In it, he admitted firing at Kelapile and his wife "to scare them away so that I could eat their food". After this incident the respondent became a fugitive from justice. He said that a day or two later he fired a shot at the inhabitants of Soft Tsheko's house in order to look for food. The following evening he again went to the latter's yard where he set fire to the two huts. The rest of the statement was a detailed account of where he had spent the next few days and what he had done during them until he was arrested. It is manifest that he was fully conscious of his

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wrongdoing and was endeavouring to avoid arrest. Nothing is said in that statement of his having partaken of any alcohol or of having smoked any dagga.
Despite having been arrested in November 1994, for some inexplicable reason the respondent's trial before Mwaikasu, J. only took place on 1 June 2001. The respondent was in custody until then. On 6 October 1995, 19 October 1995 and 20 November 1995 he was examined by a Specialist Psychiatrist, Dr. J.L. Mutagubya at the Jubilee Psychiatric Unit at Francistown. In a report dated 31 October 1996, Dr. Mutagubya said the following:
"I have had sight of the circumstances of the alleged offences as contained in statements of witnesses. I have also had the opportunity to interview Mr. Charles Buka, father of the accused person. In my opinion the accused person is not mentally disordered or defective. At the time of the alleged offence the accused person was not labouring under any disease of the mind."
The respondent was also examined by another specialist psychiatrist at the Lobatse Mental Hospital, Dr. Z. Zoric, in June 2000, the respondent having been in the hospital from 6 to 22 June 2000.
Dr. Zoric said he had seen the charges against the respondent, had sight of his history given by the respondent to other staff at the hospital, had seen a report on his behaviour while in prison, and had information given by his father. Dr. Zoric

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said the respondent did not abuse alcohol or dagga and had no history of mental illness, epilepsy or any other serious physical illness. In his opinion the respondent
"is not suffering from any mental illness and he was sane and knew what he was doing at the time of the offences."
Both psychiatrists' reports were put before the learned judge at the trial. Following his conviction of the respondent of murder, the learned Judge entered upon what this Court has on numerous occasions often referred to as the "second stage" in a murder trial viz to determine whether there were extenuating circumstances present which would render the otherwise mandatory sentence of death for murder not obligatory. The respondent gave evidence in respect of whether there were extenuating circumstances present or not. He said that in 1994 he was 20 years old. He used to drink beer and chibuku and smoked dagga. On the night of 21 October 1994 he had been drinking chibuku and continued doing so on 22 October 1994. Asked why he had shot Mr. fit Mrs. Kelapile he said, "I had drunk chibuku and I smoked dagga." He knew them well and was on good terms with them. He was drunk when he got to their house. On the following day when he fired at Soft Tsheko's family, he said, "I was still drunk."
The learned trial Judge then said to respondent's counsel "let him say his state of mind." The respondent replied -

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"I committed the offences after I killed a person. I was afraid of going home, because I had killed a person. The other offences I committed while I was staying in bush".
Asked why he had burnt two of Tsheko's houses the respondent said -
"I got to Sopia's (sic) place and it was windy. I put on a blanket. It caught fire and I ran away."
The learned Judge again asked the respondent what his state of mind was when he shot the Kelapile family. The respondent replied -
"I was in a drunken state ... I had taken chibuku and smoked dagga."
The rest of the respondent's evidence related to the fact that since he had been in prison without dagga his thinking had improved but he had lost his appetite. He also set out who the members of his family were.
At the conclusion of his evidence and, as appears from the record, the Learned Judge, without hearing submissions from either the prosecution or the defence, made the following ruling (I cite it in extenso):
"After hearing the evidence of accused person and bearing in mind the series of acts leading to the offences of which the accused stands charged, I clearly entertain the view that at the time the accused committed the offences, he was not really of himself due to the influence of alcoholic drinks and the

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smoking of dagga. I have read the two psychiatrists' reports which discount accused's possible mental disturbance. Yet that does not eliminate the great possibility of both such alcoholic intoxication and intoxication through the use of dagga. In my view, it is simply humanly impossible for the accused to have so behaved as he did as also narrated in his confession statement, save under a state of temporary insanity out of intoxication with alcoholic drinks and dagga which he has claimed before this court to have started smoking way back in 1987.
Now in terms of section 12 - (2) (3) of the Penal Code, it is there provided thus:
"12(2) intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and
(a)    
the state of intoxication was caused without his consent;
(b)    
the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission;
(3) Where the defence under subsection (2) is established, in a case falling under paragraph (a) thereof the accused person shall be discharged, and in a case falling under paragraph (b), the provisions of section 11 of this Code and of part XII of the Criminal Procedure and Evidence Act shall apply."
It is evident that the conduct of the accused as observed above, falls under paragraph (b) of section 12 (2) of the Penal Code, which relates to temporary insanity, that was self-induced and therefore is to

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be treated in accordance with section 11 of the Penal Code and Part XII of the Criminal Procedure and Evidence Act.
Section 11 of the Penal Code provides:
"A person Is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission, but a person may be criminally responsible for an act or omission although his mind is affected by disease, if such disease, does not In fact produce upon his mind one or other of the effects mentioned above in reference to that act or omission."
Being satisfied and having found that, in the instant case, the accused must, at the time he committed the series of offences in question, have been labouring under temporary insanity occasioned by intoxication through a combination of alcoholic drinks and dagga, I am inclined to find, in terms of section 160 (1) of the Criminal Procedure and Evidence Act, that the accused was guilty of the offences, charged on the 1st to 3rd and 6th to 12th counts, but was insane (temporarily though) when he committed such offences.
Thus in terms of section 160 (2) of the Criminal Procedure and Evidence Act this matter shall be reported to the President and meanwhile the accused shall be detained in prison as a criminal lunatic."
On 13 June 2001 the Attorney General applied to the trial Court for leave to
appeal to this Court in terms of Section 12(1) of the Court of Appeal Act (Cap
04:01). This was granted in these terms:
"For consideration by the Court of Appeal of the point of law, which is whether, after an accused has been convicted of the offence of murder, it is competent for this court, after hearing in extenuation, to invoke the provisions of section 160(1) of the Criminal Procedure and Evidence Act Cap. 08:02 of the Laws of Botswana."

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The Attorney General submits that the learned trial judge erred both procedurally and in regard to the substantive facts in making the special ruling that he did. As to the procedure it was submitted that having found the respondent guilty of murder the trial Court's sole remaining function was to determine the existence or otherwise of extenuating circumstances. It was not competent for him then to have invoked the provisions of Section 160 (1) of the Criminal Procedure and Evidence Act.
Section 160 (1) of the Criminal Procedure and Evidence Act reads as follows:
" 160 (1) Where an act or omission is charged against any person as an offence and it is given in evidence on the trial of such person for that offence that he was insane so as not to be responsible for his action at the time when the act was done or omission made, then, if it appears to the court before which such person is tried that he did the act or made the omission charged but was insane as aforesaid at the time when he did or made it, the court shall return a special finding to the effect that the accused was guilty of the act or omission charged, but was insane as aforesaid when he did the act or made the omission."
The effect of making a special finding in terms of Section 160 (1) above quoted, is that it must be reported to the President. The accused is meanwhile to be kept in custody as a criminal lunatic. The President may thereupon order such person to be confined at his pleasure in a place of safe custody (See Sections 160(2) and

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Section 160 (1) is clear that the special finding as to insanity can be made if "it is given in evidence on the trial" of the accused that he was insane so as not to be responsible for his actions at the time they were committed. Although it has been said that in a murder trial there are two stages, one to determine the accused's guilt and the other to determine the question of extenuating circumstances, it remains one trial and, accordingly, if there is evidence at any time during the trial of the accused's insanity when he committed the offence the court would be entitled to make the special finding in question.
There must, however, be evidence that the accused person was so insane (my emphasis). In the present case there was no such evidence at all. Indeed, the evidence that there was before the court was to the contrary.
Both psychiatrists were of the firm view that the respondent was not insane when he committed the offences. The respondent's evidence before the Court a quo is that he was "in a drunken state" when he shot at Mr. SC Mrs. Kelapile. He said he was still drunk when he fired a shot at Soft Tsheko"s family. This evidence was obviously an afterthought because as mentioned earlier, nowhere in his confession to the magistrate, which was made a few days after the events giving rise to the charges against him, does he say that he was drunk or even that he had drunk chibuku or smoked dagga. It must also be remembered that his torching of the huts

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of Soft Tsheko was some five days after he shot Mr. 81 Mrs. Kelapile and three days after he fired shots at the Tsheko family. Nowhere did respondent say he was drunk then. But even if he were drunk on the earlier occasions there is no evidence that this amounted to insanity. He never claimed so.
It would seem clear that the learned trial Judge's finding of insanity was based purely on his own speculative opinion that nobody would have behaved as the respondent did if he was not "temporarily insane". The learned Judge's opinion was that the respondent was "labouring under temporary insanity occasioned by intoxication through a combination of alcoholic drinks and dagga". There was no evidence upon which that opinion could be based. The respondent, moreover, never testified to being intoxicated during the commission of all the offences with which he was charged. Moreover his fear of going home "because I had killed a person" and his endeavours to avoid arrest show, as stated earlier, that he was fully conscious of his wrongdoing.
It is well - recognised that expert opinion is always admissible to provide the court with information which falls within the special knowledge and skill of the expert and which is likely to be outside the knowledge and experience of the judicial officer. Insanity is one such matter. It is also well - established that even where expert evidence is tendered, the decision is still one for the Court which can form its own independent judgment on the facts proved in evidence (see Davies v Edinburgh

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Magistrates (1935) SC 34 at p40; R v Albert Edward Matheson (1958) 42 Cr. App R145 at 151.) However, these and other cases make it clear that the Court's view must be founded on evidence and that it must be evidence on the issue, in casu on the respondent's sanity at the time of committing the offences. As already stated, there is no such evidence. The doctors' evidence was therefore unchallenged and should not have been rejected. There was thus no evidential basis for the learned Judge's opinion, which was based on pure speculation.
The learned Judge therefore erred in making the special finding that he did and his ruling in respect of it must be set aside. He further erred in leaving unaltered his finding of guilty which he should have done and substituted, in terms of Section 160 (1), a finding of guilty but insane.
All these irregularities rendered the proceedings a nullity. It would seem that in the circumstances it would be in the interests of justice if the entire proceedings in the High Court were set aside and the case referred back to the High Court for the trial to be heard de novo before another Judge. It is so ordered.
GIVEN IN OPEN COURT AT LOBATSE THIS 30TH DAY OF JANUARY 2002.
P.H. TEBBUTT ACTING JUDGE PRESIDENT

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I AGREE:
/ y
^ ? .'; L i >v
C. PLEWMAN JUDGE OF APPEAL


I AGREE:
O.M. NGANUNU JUDGE OF APPEAL

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