Ping v the State (Criminal Appeal No. 045 of 2005) [2006] BWCA 13 (26 January 2006)

The appellant was charged in count 1 with the murder of Iponeng Thusang (“Iponeng”) and in count 2 with the murder of Tshiamo Thusang (“Tshiamo”). According to the indictment both murders were committed on 24 December 2001 at Ncojane village (“the village”) in the Ghanzi Administrative District.

The court a quo (Phumaphi J) found the appellant guilty of murder with extenuating circumstances on count 1 and sentenced the appellant to 15 years imprisonment. The appellant was also convicted of murder on count 2, but in that case the learned trial judge concluded that there were no extenuating circumstances. He accordingly sentenced the appellant to death for the murder of Tshiamo as he was obliged to do in terms of section 203(1) of the Penal Code (Cap 08:01). The appellant appeals against his conviction and sentence in respect of both counts.

Iponeng had been the appellant’s girlfriend since 1995 and the appellant had been staying with her and her young son Tshiamo at her house in the village. The evidence is that the appellant and Iponeng had frequent “misunderstandings” which led to arguments and conflicts. They were summoned to appear before the customary court on one occasion when they were ordered to stop their constant “fighting.” The appellant described their relationship as an unhappy one.

It is common cause that Iponeng had been drinking beer at the Diachencha Bar (“the bar”) in the village during the afternoon of 23 December 2001. The appellant also came to the bar at some stage during the afternoon, but according to his evidence he had nothing to drink. It is indeed his evidence that he does not drink at all.

The appellant and Iponeng left the bar at around 18h00 that afternoon. He carried six cans of beer which Iponeng had bought at the bar. On their way home Iponeng turned off to go to her sister’s place. This was near the yard of a young woman called Meleko Mosimane (“Meleko”). When the appellant passed Meleko’s yard she asked him to give her a drink, but the appellant did not respond because he knew that Iponeng was a very jealous woman. Iponeng must have heard Meleko speaking to the appellant because she was very angry when she got home. She shouted and accused the appellant of having a love relationship with Meleko. The appellant suggested that she should go and ask Meleko what she said to him when he walked past her yard. The appellant and Iponeng thereupon went to Meleko’s yard where Iponeng accused Meleko of having a love relationship with the appellant. She also slapped Meleko on the cheek. The appellant’s evidence of this encounter is supported by what is set out in the admitted statement of Meleko.

Iponeng was still very angry when she returned home. She kept on accusing the appellant of having a love relationship with Meleko. Iponeng also threatened the appellant and told him that he was “going to know her that day.” She repeated this threat a number of times that evening.

At around 20h00 the appellant and Iponeng went to fetch Tshiamo who had been at the cattle post all day. It is the appellant’s evidence that Tshiamo complained that he was hungry and that he then gave him something to eat. He also made a bed for Tshiamo. That was after Iponeng had allegedly scolded Tshiamo, accusing him of being a bastard. She also threatened to beat and kill him according to the appellant. This evidence of the appellant was intended in my view to show that he was protective of Tshiamo while Iponeng was ill-disposed towards her child. There is, however, no other evidence to support the suggestion that Iponeng was not a caring mother.

It was around 22h00 that evening when the appellant went outside to relieve himself. According to his testimony Iponeng came from behind and started to hit him with her fists. He went back into the house but she followed him and threatened that he was “going to know her better that night”. She picked up a lamp and hit him with it. When he started to walk towards the door she grabbed him by the shoulder and “stabbed” him “with a sharp instrument on the throat.” He managed to get out of the house but before he reached the gate of the yard he heard Tshiamo shouting (as translated into English) “mother don’t kill me”.

The appellant’s evidence is that he became frightened when he realized there was blood all over him and when he heard the child shouting. He alleged that he “could not go back to the house to see what was going on.” It was his intention to go to the police station to report the incident. While on his way he once again heard the child shouting “mother don’t kill me.”

The appellant’s evidence is that he was bleeding profusely, that he was feeling weak as a result thereof and that he realized that he would not be able to reach the police station. He then decided to go to his own room which was in his mother’s yard. He thought he was going to die and when he reached the yard of his brother, Tom Modisane (“Tom”), which was next to that of his mother, he sat down and wrote the following words (as translated into English) in the sand:

When the appellant eventually arrived at his room in his mother’s yard he removed his bloodstained T-shirt, trousers and socks and placed them next to the wardrobe. He put some toilet paper on his wound and wrapped a towel around his neck. He alleged that he became unconscious thereafter.

The appellant’s cousin, James Tsholoje (PW1), was the first person to speak to the appellant the next morning. James saw the towel around the appellant’s neck and asked him what was wrong. The appellant told him that Iponeng had stabbed him with a sharp instrument. It is strange that the appellant failed to mention to James that he believed she also killed her own child, Tshiamo.

The appellant’s neck wound could have been self-inflicted or it could have been inflicted by Iponeng, as alleged by the appellant. The court a quo gave the appellant the benefit of the doubt. There is indeed other evidence to support the appellant’s version in this regard. Iponeng had been drinking that day. She was certainly in an aggressive mood in the late afternoon, particularly after her encounter with Meleko. I therefore find it reasonably possibly true that Iponeng had stabbed the appellant in the neck with a sharp instrument.

There has been much speculation about the loss of blood which could have been caused by the appellant’s wound. The appellant was first attended to on the morning of 24 December 2001 at the local clinic where gauze was applied to the wound to stop any bleeding. Thereafter he was taken to the Ghanzi Primary Hospital where he was examined and treated by Dr. Hirui Mehreteab (PW9) during the early afternoon of 24 December 2001. The doctor sutured the wound. He described the wound in his report as a “deep cut in the anterior neck, skin, muscles and trachea”. The doctor testified that in his opinion the appellant did not suffer any life-threatening or massive bleeding. The appellant’s bloodstained clothes were shown to the doctor and he expressed the view that the amount of blood on those clothes could not have come form the appellant’s wound. That amount of bleeding would not have stopped by itself without surgical intervention according to the doctor. The doctor further testified that he did not find any symptoms like dizziness and palpitations to support a finding that there had been massive bleeding requiring blood transfusion.

The State placed much reliance on the evidence of the doctor and submitted that some of the blood found on the appellant’s blood-stained clothes must have come from the wounds of either or both of the deceased persons. Blood tests did not support the State’s contention but showed that the appellant and both the deceased belonged to the same blood group. DNA tests would have been conclusive but were unfortunately not carried out.

It should be borne in mind that the appellant had a deep cut over his neck and that this wound would have caused bleeding while the appellant was walking to his mother’s yard, which was some distance from Iponeng’s yard. The position of the blood-stains on the appellant’s clothing was also consistent with blood having trickled down from the wound on his neck. I am accordingly of the view that no conclusive finding can be made with regard to the source of the blood found on the appellant’s blood-stained clothes.

A related issue concerns the presence of blood and foot-prints on the floor of Iponeng’s house. The appellant’s evidence is that he was stabbed inside Iponeng’s house, but that it was not his blood that was found on the floor in the house. The appellant further denied that the foot-prints were his and contended that he had been wearing boots that night. There is some support for the appellant’s evidence that he had in fact been wearing boots. The witness James (PW1) told the court a quo that he saw the imprint of the appellant’s boot outside the room where he found the appellant on the morning of 24 December 2001.

The police failed to measure the size of the foot-prints in order to compare it with the size of the appellant’s foot. The State nevertheless placed much reliance on a blood-stained sock which was found in the appellant’s room. It appeared that one of the foot-prints was that of a bare foot while the other was of a foot wearing something like a sock. The blood on the appellant’s sock does not necessarily support the State’s contention in this regard. The blood on the sock was on the upper part of the sock and could easily have been the appellant’s own blood which had trickled down his trousers. And why would the appellant have taken off his boots and one sock at some stage after he had been stabbed but before he left Iponeng’s yard?

The witness Evelyn Mothibi (PW5) is the elderly aunt of Iponeng. She was asked to accompany the police on 25 December 2001 when the appellant was asked to point out certain positions at Iponeng’s yard. According to her evidence the appellant said it was his blood on the floor inside Iponeng’s house. This evidence of Evelyn accords with her police statement and with the evidence of the investigating officer, detective assistant superintendent Marapo (PW10), who was present during the pointing out. According to the investigating officer the appellant conceded that the blood on the floor had oozed from his wound when he was looking for matches inside the house. The witness Evelyn however went further and testified that the appellant also admitted that the foot-prints in the blood on the floor were his foot-prints. This alleged admission was not supported by the investigating officer and does not accord with her police statement where she alleged that she “suspected” the foot-prints were those of the appellant.

The investigating officer asked the appellant during the inspection to point out where he had been standing on the evening of 23 December 2001 when attacked by Iponeng. According to the investigating officer the appellant showed them a point outside the house and about two metres from where Iponeng’s body was reported to have been found. This was confirmed by the witness Evelyn. The appellant however maintained that he told them that he had been stabbed inside the house, while the point which he indicated outside was where Iponeng had attacked him with her fists.

I am not satisfied that the State has proved that the foot-prints in the blood on the floor were those of the appellant. It does however appear that the appellant has changed his story about whose blood was on the floor and where he was standing when Iponeng stabbed him. These discrepancies are not of great moment, and they do not implicate the appellant directly in the commission of the murders, but they do show that the appellant is an unreliable witness who is willing to change his story.

The evidence relating to the handing over of the Okapi knife by the appellant to the investigating officer shows the appellant to be an untruthful witness in a number of material respects. It is the evidence of the investigating officer that the appellant informed him on 26 December 2001 that the knife which had been used by Iponeng was at his mother’s yard. They went to the appellant’s room where he handed over an Okapi knife to the investigating officer. When the investigating officer asked him why there were no blood-stains on the knife the appellant stated that he washed the knife when he came from Iponeng’s place on the night of 23 December 2001. The appellant has a different version. He told the court that the investigating officer asked him whether he had a knife and when he conceded that he had one, they went to fetch it. This was a brand new knife which had never been used before according to the appellant.

There is no reason in my view why the investigating officer would have made up this story. It could not assist the State case. If the investigating officer wanted to implicate the appellant falsely he could have alleged that the appellant admitted it was the murder weapon. What the appellant told the investigating officer on 26 December 2001 was intended by the appellant to support his version that he had been stabbed by Iponeng. I therefore accept the evidence of the investigating officer that the appellant handed the knife to him with the explanation that it was the knife used by Iponeng on the night of 23 December 2001.

The appellant’s allegation that this was the knife used by Iponeng on 23 December 2001 raises a number of difficulties which cannot be explained on the appellant’s evidence. According to his evidence there was no opportunity to take possession of the knife. But even if we accept that he managed to get hold of the knife, why could he not then stop Iponeng from killing her child?

The appellant’s explanation that he had cleaned the knife that same evening is so improbable in the light of his own evidence that it cannot be believed. The appellant’s evidence is that when he sat down to write his message in the sand in Tom’s yard he thought he might die any minute. He alleged that he was too weak to seek help from his relatives or neighbours. Yet he went home and found the strength to clean the knife while it was not necessary to do so on his evidence. I have no doubt that the story the appellant told the investigating officer about the knife is false. This lie may not implicate the appellant directly in the commission of the murders, but it shows once again that the appellant is an untruthful witness.

I find the appellant’s evidence about the message he wrote in the sand to be unacceptable. There was no need in the first place to write such a message in the sand. It would have been far more effective if the appellant had gone to one of his relatives or neighbours in the village to ask for help and to explain to them what had happened at Iponeng’s yard. It further appears from the doctor’s evidence that the appellant’s wound was not very serious and I therefore find it highly unlikely that the appellant seriously thought he was dying. His allegation in the message that he was “finished” was therefore not true. It will, in any event, become apparent later that the message which the appellant had written in the sand was false in all respects and was written in an attempt to exculpate himself while implicating Iponeng in the commission of the crimes. The objective facts set out hereunder however show that the appellant was falsely implicating Iponeng while he was the person who had murdered both Iponeng and Tshiamo.

The dead bodies of Iponeng and Tshiamo were found in Iponeng’s yard on the morning of 24 December 2001. The body of Iponeng was in front of the house and about 13 metres from the front door of the house. The body of Tshiamo was lying behind the house. The post-mortem examination showed that in each case there was a cut-throat wound across the front of the victim’s neck which extended to the spine. The wind pipe, the blood vessels and the muscles of the front of the neck were severed in the case of each one of the victims.

Prof. W. O. Odesanmi (PW8) is an experienced consultant forensic pathologist. He performed the post-mortem examinations on the bodies of the two deceased, Iponeng and Tshiamo. He concluded that the death in each case was due to massive bleeding following upon the cut-throat wound of the neck of each deceased. His evidence is that a very serious amount of force was used to inflict those fatal wounds. He rejected the suggestion that Iponeng’s fatal wound could have been caused by her six year old son, Tshiamo. In his view, there was also no possibility that the injuries he observed on Iponeng were self-inflicted. He explained that a person would collapse by the time he gets as far as the jugular vein. The self-inflicted wound would have to be deep to get to the spine and the person making the incision himself would usually abandon the process as a result of the pain it will cause. Professor Odesanmi further explained that Iponeng’s wound depicted in photograph 16 in the bundle before the court indicated that it was not self-inflicted.

Counsel for the appellant submitted that the evidence of the professor is not conclusive since he conceded in cross-examination that anything was possible. It is clear from the professor’s evidence that that remark was made generally speaking. In my view it does not detract from his explicit evidence that there was no possibility that the injuries he observed on Iponeng could have been self-inflicted. The appellant’s evidence must therefore be considered in the light of the professor’s specific conclusions.

It is the appellant’s case that both Iponeng and Tshiamo were alive when he was about to leave Iponeng’s yard on the evening of 23 December 2001 at around 22h00. They were both found dead the next morning. The appellant suggested that Iponeng killed Tshiamo and that she must have committed suicide thereafter. There is no apparent reason however why she would have done it. That possibility is in any event ruled out by the evidence of Professor Odesanmi. There is another possibility which is even more unlikely, namely that Tshiamo killed his mother, Iponeng, and then committed suicide. Professor Odesanmi rejected that suggestion out of hand.

On the appellant’s exculpatory version there is only one other possibility, namely that an unknown third person entered Iponeng’s yard after the appellant had left and that this unknown person for some unknown reason killed both Iponeng and Tshiamo. There is no evidence whatsoever to suggest that this is what happened. Counsel for the appellant criticized the police for not searching the house of Iponeng’s brother, Simon Thusang (PW1), and for failing to measure Simon’s feet to compare it with the foot-prints found in the blood at Iponeng’s house. The investigating officer conceded that the foot-print depicted in photograph 7 in the bundle before the court faced in the direction of Simon’s house, which was situated in the same yard as Iponeng’s house. The investigating officer also conceded that the police did not search Simon’s house or measure his feet. Counsel for the appellant submitted that Simon could have disturbed the murder scene and that he could have removed the murder weapon. It was even suggested that the failure of the police in this regard did not rule out Simon as the person who had committed the murders.

The police can be criticized in this respect but that does not implicate Simon as the possible murderer of his sister and nephew. It was not even suggested to Simon in cross-examination that he could possibly be implicated in the commission of the murders. In my view such a possibility can be ruled out in the light of all the circumstances. The oft cited remarks of MALAN JA in R. v Mlambo 1957 (4) SA 727 (A) at 738 A are relevant in this connection:

“In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused.”

MALAN JA’s dictum has been approved in a number of cases, both in South Africa and in Botswana. See S v Nkomo 1966 (1) SA 831 (A) at 833 D-E; S v Rama 1966 (2) SA 395 (A) at 400 H-401B; S v Sauls and Others 1981 (3) SA 172 (A) at 182 H-183 B; Gofhamodimo v The State 1984 BLR 119 CA at 124 B-D; Kelaletswe and Others v The State 1995 BLR 100 CA at 119 C-D. See also the remarks of GYEKE-DAKO J in S v Maphorisa and Others 1995 BLR 568 at 574 H which are to the same effect.

On the appellant’s evidence there are only three ways in which Iponeng and Tshiamo could possibly have met their death, ie, at the hand of Iponeng, or Tshiamo, or an unknown third person. It has been explained above that not one of these “possibilities” can be sustained on the evidence. The murders cannot therefore be explained on the basis of the appellant’s evidence. It follows in my judgment that the appellant was not telling the truth about what had happened at Iponeng’s yard on that fateful evening of 23 December 2001. It should however be borne in mind that the State case rests entirely on circumstantial evidence. The rejection of the appellant’s evidence does not therefore automatically lead to the conclusion that he committed the murders. The question remains whether the inference can safely be drawn that the appellant was the one who had killed Iponeng and Tshiamo.

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.”

Blom’s case has repeatedly been followed both in South Africa and in Botswana. See the following cases as far as Botswana is concerned: Gofhamodimo v The State (supra) at 134; Sechele v the State 1998 BLR 399 CA at 400-401; Ndlovu v The State 2000 (2) BLR 158 CA at 161 H-162 B.

“It has been said time and again by courts in England and South Africa and in Botswana, that circumstantial evidence must ‘always be narrowly examined’. Before drawing the inference of the guilt of an accused from circumstantial evidence, it is necessary for the court to be sure that there are no co-existing circumstances which would weaken or destroy the inference.”

Once the murders could not be explained on any one of the three possibilities open to the appellant on his evidence there remained only one reasonable inference which could be drawn from all the proved facts, and that is the obvious one that the appellant is the person who killed Iponeng and Tshiamo on the night of 23 December 2001 at Iponeng’s yard. It follows that the appellant is guilty of killing both Iponeng and Tshiamo. The nature of the wounds that were inflicted leaves no doubt in my mind that the appellant had the direct intention to kill in respect of both victims. I therefore find that the appellant was correctly convicted of murder contrary to section 202 of the Penal Code (Cap 08:01) in respect of both Iponeng and Tshiamo. His appeal against his conviction of murder on count 1 and count 2 should therefore be dismissed.

The appellant was found guilty of murder with extenuating circumstances in the case of Iponeng and sentenced to 15 years imprisonment in respect of count 1. The appellant’s evidence that he had been stabbed by Iponeng was taken into account when the learned trial judge found extenuation in respect of count 1. There is no allegation that the court a quo failed to take any other relevant factor into account when sentencing the appellant to 15 years imprisonment. Sentence was in any event in the discretion of the learned trial judge and I see no reason to interfere with that sentence. The appeal against the sentence of 15 years imprisonment on count 1 should therefore be dismissed in my judgment.

The court a quo found no extenuating circumstances in respect of count 2 and sentenced the appellant to death. The appellant did not take the court into his confidence during the enquiry as to the presence or absence of extenuating circumstances and we do not know in what circumstances and for what possible reason the appellant killed this young child. The question whether there were extenuating circumstances therefore has to be decided on the available evidence.

The aggravating features in this case appear from the evidence. The learned trial judge pointed out that there is nothing in the appellant’s evidence to suggest that Tshiamo had provoked or offended the appellant in any respect; on the contrary, there is evidence that Tshiamo asked his mother what was wrong when he saw that she was angry with the appellant. The gruesome way in which Tshiamo was murdered is certainly a further aggravating feature. The stab wound at the back of Tshiamo’s right hand (which the professor described in his post-mortem report) indicates that Tshiamo even tried to ward off the attack before he was killed.

Counsel for the appellant maintained however that there are also a number of extenuating circumstances. He submitted that the appellant had been provoked by Iponeng and that he killed Tshiamo while reacting to the provocation. He suggested that the two murders were committed in reaction to the same provocation and that the extenuation found in respect of count 1 should therefore be extended to count 2. The first problem that I have with this submission is that it is based on the assumption that Tshiamo was murdered at the same time as his mother. I further agree with the submission of counsel for the State that even if we accept that the appellant suffered provocation at the hands of Iponeng there was no justification at all for him to kill Tshiamo as well.

Counsel for the appellant further submitted that there was no pre-meditation on the part of the appellant. This argument is unfounded and rests on pure speculation. I am accordingly of the view that there is no factual basis for finding any extenuation as far as the murder of Tshiamo is concerned. The appeal against the finding of the court a quo that there are no extenuating circumstances in respect of the murder of Tshiamo should accordingly be dismissed in my judgment.

Botswana: Court of Appeal

Ping v the State (Criminal Appeal No. 045 of 2005) [2006] BWCA 13 (26 January 2006)