Botswana: Court of Appeal

                           Court of Appeal Criminal Appeal No. 030 of 2005

In the matter between

Lobatse 10 and 26 January 2006

AKIWUMI JA

1.      

The appellant was charged with the murder of his girlfriend Diboleleng Ramasotla, the deceased, on 29 August, 2002. The appellant who was 19 years old at the time the offence was committed, pleaded not guilty but was nonetheless convicted of murder with extenuating circumstances and sentenced to 25 years imprisonment, backdated to the date of his being in custody namely, 30 August, 2002.

2.      

The evidence on record against the appellant establishing his guilt though mainly circumstantial, was overwhelming and pointed irresistibly to the guilt of the appellant. It is necessary to set out a summarized version of the evidence adduced at the appellant’s trial. On the day in question, the deceased who was then 16 years old, went with her elder sister, Merapelo Ramasotla (PW1), and the appellant’s niece, Sedilapuso (PW4), to the nearby bush to pull out some grass for sale. Having regard to the low financial standing and poverty of these rural three females, this was not an unusual undertaking. Later on, when they were about to go home, Merapelo heard someone whistling. Shortly after, the appellant, who had no interest in what they were doing, came there. It was late afternoon. The appellant, who appeared drunk, was in a foul mood. He then slapped and kicked his niece for not having given him a second helping of food earlier on at home. He then put on her head, the grass that his niece had collected and ordered her to go away, which she did. According to Merapelo, the appellant then, in similar mood of violence, turned to Diboleleng whom he slapped and pulled away. Though in her cross-examination, it was established that Merapelo had, in her statement to the police, not mentioned the allegation that the appellant had slapped Diboleleng, her evidence that the appellant pulled Diboleleng away, was not challenged. Merapelo’s evidence that the appellant was drunk was also not challenged.

3.      

Merapelo went on to testify that after the appellant had taken Diboleleng away, she left to go home. However, she went back to the bush where she and Diboleleng had been, looking for her. After a long search she could not find Diboleleng and went back home. She went back again this time, with her brother, Mathata, to look for Diboleleng whom they could not find. Upon telling her mother what had happened, her mother reported the matter to the local police sergeant called Seago, who said that since it was already night time, he would investigate the matter in the morning.

4.      

By the next morning, Diboleleng had not got back home and Sergeant Seago then went to the appellant’s home. After his parents tried unsuccessfully to wake him up, Sergeant Seago then went and knocked on the door of the room where the appellant was sleeping. At first, he refused to open the door and only did so after Sergeant Seago told him who he was. Sergeant Seago then arrested him and took him to the police station. The further admissible evidence of Sergeant Seago was that the appellant told him that he did not know where Diboleleng was. Subsequently, he said that he had left her in the bush the previous day and that he had assaulted her so badly that she could not walk. He, however, did not say who else was there in the bush at the time. Sergeants Seago and Ramogale, the father and elder brother of the appellant and the appellant himself, went to the bush so that the appellant could show them where he had left Diboleleng. They could not find her. They went back again to the bush followed by many of the villagers. This time, they found in the bush the dead body of Diboleleng with wounds on her body. Sergeant Seago was not too sure whether it was the appellant who led them to the scene. Sergeant Seago then called the CID office at Lentsweletau which sent over Detective Constable Kealotswe to investigate the matter. In the cross-examination of Sergeant Seago, counsel for the appellant suggested to Sergeant Seago that the appellant was somewhere else without stating where, when Diboleleng was killed. Although no notice of intention to raise the issue of alibi had then been served, prosecuting counsel did not raise any objection to this line of defence. The notice of the defence of alibi was subsequently served after the close of the evidence of the prosecution and after it had been ruled that the appellant had a case to answer. It was also put to Sergeant Seago in cross-examination, which he denied that:

“The accused is going to tell the court that when you went to search for the first time, he told you that he left the deceased at the scene when she was alive?”

It was only towards the end of his cross-examination that it was vaguely put to Sergeant Seago that whilst the appellant and Diboleleng were alone together in the bush, someone came there and harassed them and that because of this, the appellant went away callously leaving Diboleleng, his 16 year old girlfriend, behind. The suggestion was put this way:

“He is further going to say whilst they were there, somebody came and harassed them and he left?”

5.      

The relevant evidence of the investigating officer, Detective Constable Kealotswe is that he took photographs of the scene of crime and that of the dead body of Diboleleng at the scene; took the corpse for post-mortem examination which he photographed and which disclosed that the corpse had many, many stab wounds which caused the death of Diboleleng, and an okapi knife inside the corpse. The admitted post-mortem examination report on the Diboleleng’s corpse, discloses that Diboleleng died as a result of haemorrhagic shock due to multiple stab wounds. The specific defence put to Sergeant Seago about someone coming to harass the appellant and Diboleleng and which led to the appellant leaving Diboleleng behind, was, however, rather suspiciously, never put to the detective investigating officer.

6.       After the close of the evidence for the prosecution, the trial judge found, for the following reasons, that the prosecution had established a prima facie case against the appellant namely, that the appellant was the last person seen with the deceased in the late afternoon before she was found dead; that the appellant had told Sergeant Seago that he had badly assaulted the deceased before he left her in the bush; that the appellant on returning to the village did not tell any one that he had left his 16 year old girlfriend in the bush until the next morning when questioned by Sergeant Seago; and that the appellant had raised the defence of alibi rather late in the proceedings.

7.       The appellant decided to give evidence on oath. He admitted that he went to look for Diboleleng in the afternoon of 29 August, 2002, and whom he found in the bush together with his niece and Diboleleng’s elder sister, Merapelo. The appellant, who said he had been drinking but was not too drunk, admitted having assaulted his niece and though he denied assaulting Diboleleng, admitted that he “held her by her hand” and that her sister Merapelo went away after that, leaving him and Diboleleng behind. Whilst they were alone together, a man approached them in “a very angry mood”. He asked the appellant what he was doing with Diboleleng and whether he was the reason why Diboleleng had deserted him. The appellant went on to say that the man:

“… came towards me. I tried to just stand there and see what he would do after that. He continued to come straight to me. I then ran away. I headed to the lands. When I was coming back from the lands it was already late at night and it was raining. When I was from the lands I went to my home and then slept. That is when in the morning whilst I was still sleeping I heard someone knocking, when I opened the door I found that it was a police officer. That police officer told me to give him Diboleleng and asked me where Diboleleng was.”

After having been arrested as a suspect, the appellant went on in his evidence, avoiding to say anything about the man whose threats had made him desert Diboleleng, to say that he told Sergeant Seago that:

“I did not know where she was because I last parted with her when I was going to the lands. He took me and dragged me to the kgotla. When we got there he hand cuffed me and then he told me that I should go and point out the place where I had parted ways with her. I went with him to go and show him the place. We came back, on our way back we went to my home. From my home we proceeded to the kgotla. When we got to his office he further told me that I should tell him where Diboleleng was. I told him that there is nothing that I can ever say, I have told him the truth. He gave me a slap. When I fell to the ground he lifted me up.”

8.      

The appellant in cross-examination admitted that he had once seen the man who threatened him whilst he was with Diboleleng, at the stand pipe within their village. And yet the appellant, so as to dispel the evidence against him that Diboleleng was last seen in his company late in the afternoon in incriminating circumstances, did not tell anyone including Sergeant Seago, the detective investigating officer or his parents, that he had left Diboleleng in the company of this threatening person. Indeed, it was not till 26 April, 2005, when the appellant was giving evidence that he for the first time, stated that he had left Diboleleng in the company of the man who had threatened him for taking away his lover, Diboleleng, from him.

9.      

There is also the appellant’s word that Diboleleng was alive when he left her at about 5.00 pm, got home late at night and went to sleep. No one saw him on his way home or when he got there and went to sleep. The appellant, the police and some other persons went to the bush looking for Diboleleng. In his evidence, the appellant put the result when he knew that they were looking for Diboleleng rather evasively, this way:

“We walked for a long distance and we heard somebody calling us. And that person was telling us that there is a person where he was. We all went to the direction he was shouting from. When we arrived we found that indeed there was a person.” (underlining supplied)

10.     

In her judgment the trial judge concluded, and which led to the conviction of the appellant of the murder of Diboleleng, that it had been established that when the appellant confronted the three girls in the bush that afternoon, he was in an angry and drunken mood leading to his assaulting his niece; that he retained Diboleleng in the bush and thus prevented her from going away with his worried elder sister; that the appellant had told Sergeant Seago that he had so assaulted Diboleleng in the bush that she could not walk and had left her there; that the appellant, even though he was the sole suspect of the murder of Diboleleng, did not, until it was suggested to Sergeant Seago when he was giving evidence at the trial, tell anyone that he left Diboleleng in the bush with a fierce looking man who threatened to attack him; and that the appellant’s defence of alibi was worthless having only been raised some 14 months after the event. In the trial judge’s view, these established that the appellant was the perpetrator of the murder of Diboleleng. In this regard, the trial judge adverted to the well known decision of this Court namely NDLOVU v THE STATE (2000) 2 BLR p 158 AT 161, which sets out succinctly the effect of circumstantial evidence. KORSAH JA in his judgment in that case set out the role of circumstantial evidence as follows:

“Circumstantial evidence is nothing more than drawing inferences from proven facts so as to complete the elements of guilt or establish innocence. A presumption may arise where from the proof of some fact the existence of another fact may naturally be inferred without further proof from the mere probability of its having occurred. And, as Beadle C.J. commented in R v. SIBANDA AND OTHERS 1965 (4) 241[S.R.A.D.] at 246 B.

‘Generally speaking, when a large number of facts, taken together, point to the guilt of the accused, it is not necessary that each fact should be taken in isolation and its existence proved beyond a reasonable doubt; it is sufficient if there are reasonable grounds for taking these grounds into consideration and all the facts, taken together, prove the guilt of the accused beyond a reasonable doubt.’ See R v. De Villiers 1944 AD 493 at p. 508.

It has been observed that, circumstantial evidence may have the tendency of leading inexorably to a definite conclusion if there is no other explanation for their occurrence. No direct evidence is necessary for their probative value except things do not happen that way without reason or explanation. To demand direct evidence for their establishment is to discount the probative value of evidence that though not direct, does not only suggest, but points irresistibly to a guilty mind, or demands a conclusion of involvement in the commission of the offence. Rattan v. R [1977] A.C. 378 P.C.

Proof of guilt beyond a reasonable doubt does not necessitate the proof of guilt beyond all doubt. Where the facts are staring you in the face, to indulge in extravagant excuses for their occurrence is to take an excursion in futile mental exercise.”

11.     

Korsah J.A. in the same judgment affirmed as follows the proposition that lies told by an accused person will strengthen the case for the prosecution:

“Lies told by an accused person in order to distance himself from an offence may, in such circumstances, be taken as a make-weight to strengthen the case for the prosecution. Thus in BROADHURST v. R. 1964 A.C. 441 at 457; cited with approval in Gofhamodimo v. The State 1984 B.L.R. 119; LORD DEVLIN said:

‘In suitable cases, the Court may take into account as a factor that the accused has given false evidence – his untruthfulness is a factor which a trier of fact can properly take into account as strengthening the inference of guilt’.”

12.     

The appellant has appealed against his conviction and the sentence of 25 years imposed upon him. Briefly, the three grounds which counsel for the appellant argued against conviction, were that the evidence of the appellant that a threatening man came to where he was in the bush with Diboleleng and which led to his deserting Diboleleng, was reasonably possibly true and the appellant should therefore not have been convicted; that the trial judge misdirected herself in taking into account the evidence of Sergeant Seago that the appellant had told him that he had assaulted Diboleleng; and that the appellant’s defence of alibi was not properly considered by the trial judge.

13.     

In respect of the first ground, whilst Merapelo said that she had, before the appellant emerged into the bush where they were, heard someone whistling, the appellant said that he had also heard someone whistling before the strange and angry man had emerged from the bush, indicating that there was someone else other than him in the vicinity who must have been the one who later came to where the appellant and Diboleleng were. But the appellant never told anyone about this person until he gave evidence. Furthermore, it is absolutely unlikely that such a person who intended to harass the appellant and Diboleleng, would announce his presence by so whistling. The following as narrated by Sergeant Seago, occurred when he arrested the appellant:

“I told him that he is a suspect. After that I questioned him as to the whereabouts of Diboleleng and it was alleged that they were left in the bush together. The first answer he gave he did not know where she was. … I continued to question him and then he said that he left her in the bush the previous day. … I asked him why he did not come with her? … He told me that he had assaulted her in such a way that she could not walk.”

The appellant as already recounted, did not tell any one after he had been arrested on suspicion for the disappearance of Diboleleng, about the angry man who came to where he and Diboleleng were accusing her of infidelity and him of condoning it. The appellant it seems, unbelievably, was quite happy to leave Diboleleng whom he said he loved very much, at the mercy of this angry man. And if the appellant had left Diboleleng at the mercy of this man, it would be incriminating that the appellant said nothing about this to Sergeant Seago or the detective investigating officer or to anybody, not even Diboleleng’s mother who was a neighbour; until when Sergeant Seago was giving evidence. To my mind, the trial judge was right in rejecting the appellant’s story of the angry invader.

14.     

It cannot be said that the trial judge misdirected herself when she took into account the evidence of Sergeant Seago and which was not a confession by the appellant of the crime with which he had been charged, that he had assaulted Diboleleng. This was merely an answer which the appellant gave to Sergeant Seago when he was asked where Diboleleng was. And even if this part of the evidence of Sergeant Seago should not have been considered, there is the well established and incriminating circumstantial evidence that Diboleleng was last seen in the company of the appellant who, according to the accepted evidence of Diboleleng’s elder sister, Merapelo, was rather drunk and annoyed with Diboleleng whom he pulled away further into the bush.

15.     

Although notice of the appellant’s defence of alibi was unprocedurally given, prosecuting counsel did not object to its admission and the calling of evidence to establish the appellant’s defence of alibi. Indeed, the trial judge ruled that evidence concerning the appellant’s defence of alibi could be given. But what was this evidence? As already narrated, the appellant left Diboleleng in the company of the intruder at about 5.00 pm, but unconvincingly, did not get home until late in the evening when he went to sleep. Having rejected the appellant’s incredible evidence to the effect that he had left Diboleleng in the company of the intruder, his defence of alibi which is based on only what the appellant said and unsupported by any other evidence, does not adversely affect the circumstantial evidence adduced by the prosecution.

16.     

In my view, the appellant’s appeal against the conviction of the appellant of murder with extenuating circumstances, must fail and it is hereby dismissed.

17.     

With regard to the appellant’s appeal against sentence, the sentence of 25 years imposed on the appellant, is, in my view, excessive. The appellant was 19 years old at the time of the commission of the offence with which he was charged. The extenuating circumstances were drunkenness, jealousy and youthfulness. Whilst counsel for the respondent admits that 25 years is excessive in the circumstances, she has suggested that a sentence of 18 years would be suitable. However, despite the horrific nature of the crime and taking into account the fact that in cases of this type, this Court has supported sentences of about 15 years imprisonment, I would, to maintain uniformity in sentences imposed by this Court in circumstances similar to the appellant’s, reduce the sentence of 25 years imprisonment imposed by the trial judge on the appellant, to one of 15 years, backdated to the time when the appellant was first taken into custody.

18.     

It is so ordered.

I AGREE                                                       P. H. TEBBUTT
                                                               JUDGE PRESIDENT