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IN THE HIGH COURT OF THE REPUBLIC OF BOTSWANA HELD AT FRANCISTOWN

CRIMINAL TRIAL NO. FT 000013 OF 2006

In the matter between:
THE STATE
VERSUS
LESEDI APADILE
Francistown: 21, 23 May, 5 and 12 October, 2007.

Ms. Attorney K.W. Lephalo for the State, With her Mr. Attorney M. Dick
Mr. Attorney O.G.B. Marata for the Accused

JUDGMENT

MASUKU J.

1. The case before Court is one of matricide. Lesedi Apadile, to whom I shall henceforth refer as "the Accused", stands before me indictedon a single count of murder, it being alleged by the State that on 1 January, 2005 at Tshikinyega ward, Mahalapye, he murdered one Gaositege Apadile, whom it is common cause was the accused's mother. I will henceforth refer to Gaositege Apadile, for convenience, as "the deceased".

2. When called upon to tender his plea to the indictment, the accused pleaded not guilty. His plea received confirmation from Mr Marata as being in accordance with his instructions. Thereafter, the defence proceeded to admit certain facts and to which I will turn in due course. These facts were admitted consequent upon the defence admitting the evidence which had been proposed to be led by the State as recorded in the summary of evidence. In point of fact, the defence admitted all the prospective witnesses' summaries, save that of PW9. Together with the admissions, the defence also admitted the exhibits associated with the following witnesses:

The autopsy report - Exhibit "A" by PW11 Dr. S.A. Mapunda

The Forensic Scientist's report - Exhibit "B" by Mpolokang E. Fana

The album of photographs - Exhibit "C" by Paul M. Hiri
A kitchen knife - Exhibit "1" by Paul M. Hiri

3. The relevant evidence proposed to be led, as recorded in the summary of evidence was that of PW2 and PW3. PW2 Khutsafalo Apadile was to testify that in the evening of 1 January, 2005, she was at home and in the evening, the accused, who had been away, came home and was offered some food. Two children then came to him reporting that the accused was assaulting the deceased. He ran to render assistance to the deceased but found the kitchen door locked. He apparently saw the accused through the window and he was holding a knife with a black handle. Later, the deceased emerged from the house, holding her chest and helped to lay her on the ground. The police were called and they relayed the deceased to the hospital. PW3, a young child, on the other hand was to testify that he saw the accused coming into the lounge from the kitchen. He was carrying a knife with which he subsequently stabbed the deceased.

4. The other potential witnesses, including PW4 Tsaone Mogotsi, PW5 Segolame Diseko, PW6 Cathrine Matshotshobo came after the event and found the deceased sprawled on the ground. She was bleeding profusely. Transport was arranged for the deceased to be conveyed to the hospital for medical treatment. In this regard, both PW6 and PW7 met the accused at the entrance to the homestead. According to PW7, the accused had bloodstains on his pair of trousers and he went away from the homestead.

5. On the other hand, the autopsy report records that the deceased died as a result of haemorrhage and shock due to multiple stab wounds with a sharp edged and pointed object. According to the Pathologist's report, there were 12 incissional stab wounds that were observed on the deceased's cadaver. They were littered on various parts of her torso, namely the chest and left arm (8) two between the shoulders, two over the right breast and right dorsal palm. The wounds were measured l-4cm length and spindle shaped. Those located in the chest area were penetrative in nature.

6. Mpolokang Fana, the Forensic Scientist, on the other hand, filed an affidavit stating that he received certain samples which included the accused's blood; the deceased's blood; a white golf shirt; a yellow cloth with brown embroidery with heavy stains at the corner; a khaki pair of trousers with heavy blood stains on the front area of the left leg and Exhibit "1". Having done the Kastle Meyer test to detect blood stains and having carried out the DNA testing, he concluded that the blood stains in the golf t-shirt, the khaki trousers, the yellow table cloth, the exhibit "1" and the multi-coloured dress were consistent with the DNA profile from the deceased. The police were to adduce formal evidence, the contents of which I do not find it necessary to recapitulate, save that of PW13 , Paul Mpho Hiri to whom the accused pointed out the scene of crime and where he stabbed the deceased whilst she was seated.

7. In terms of the provisions of section 273 (1) of the Criminal Procedure and Evidence Act, Cap. 08:02 of the Laws of Botswana, hereinafter referred to as "the Act", the defence made the following admissions of fact; namely, that the deceased is dead; that she died as a result of multiple stab injuries; that the said injuries were inflicted by the use of a knife and lastly that the said injuries were inflicted by the accused. I must commend Mr. Marata's admissions of fact as recorded above for the reason that normally, what is done is merely to record the summary of evidence of the witnesses whose proposed evidence the defence had no objection. The admission thereof does not however amount to facts relevant to the issues as necessarily required by section 273 (1) of the Act.

8. The admission of the contents of the summary of evidence is, in my view, not an end in and of itself, but only a means to an end. The end is to record the facts relevant to the issues and which facts may be established and extracted from the contents of the undisputed portions of the summary of evidence. Whatever the case may be, after the evidence proposed to be led by the State has been admitted, what should follow is the recording of the admitted facts relevant to the issue and from which it can be clear what issues of fact are admitted by the defence and thereby obviating the need to have the State prove them and what issue(s) remain live for the State to prove.

9. This is the approach that was followed in S v Thomo 1969 (1) SA 385 at 387, where HARCOURT J, referring to the provisions of section 284 (1) of the then Criminal Procedure and Evidence of South Africa, which I must point out is similarly worded as our present section 273 (1), stated that:

"... since the purpose of making the admissions of fact is to dispense with the need to call evidence to prove those facts, the reference to 'evidence' is not inappropriate unless it is understood to mean 'proof."

The interpretation I accord to section 273 (1) in my view coincides with the views of the learned Judge. I am of the view that in future, the mere recording of the summary of evidence is not sufficient. There must actually follow the precise facts that are admitted from the said summary and which are relevant to the issues at hand.


10. In this regard, I will quote with approval the recent judgment of CHINHENGO J. in The State v Gerald Jerry Dube CRTF-7-03 where the Court, with reference to authority, which I need not advert to in this matter, admirably dealt with the above issue in terms which are in agreement with my own views on the section in question. At p. 12, the learned Judge said:

"Section 273 aforementioned has two significant aspects to it. The first is that it provides that an accused may admit any fact which is relevant to the issue and that once made that admission becomes sufficient proof of the fact and it may operate in the mind of a court for or against the State or the accused. The admission also renders it unnecessary for the State to lead evidence to prove the fact so admitted . . .The second aspect of s 273 of the Criminal Procedure and Evidence Act is that it provides that an admission of a fact shall be sufficient proof of that fact."

11. With the foregoing having been done, what remained outstanding for the State to do was to lead the evidence of its only witness, whom it determined was to adduce viva voce evidence at this stage of the trial. The witness thus called was Dr. Amengwa Kuboka Leech, a psychiatrist in the employ of the Government of Botswana, presently based at the Lobatse Mental Hospital. It was his evidence that he had been a doctor for a total period of 22 years but had served as a Psychiatrist for 17 years of the total of 22. It must be stated that his qualifications were not questioned by the defence and am satisfied from the experience he holds that he perfectly fits to be accorded the status of an expert witness.

12. His evidence is recorded in full below and it appears to form the pivot upon which the whole case may have to turn, particularly in appreciation of the admissions of fact made by the defence and alluded to above. He testified that he examined the accused who was brought to him by the police and prepared a report which he positively identified by his signature, date stamp, address and his name. The main purpose of examining the accused was to assess his mental fitness to plead. In that regard, he took a psychiatrist history and conducted a mental assessment. He concluded that the accused suffered from an anti-social personality disorder which appears to have been exacerbated by his abuse of alcohol.

13. It was his further evidence that his assessment pointed to the accused having been under the influence of alcohol at the time with no abnormality being detected. He therefore concluded that at the time the crime was committed, the accused knew what he was doing. The learned Doctor's report was admitted by consent although its admission was subject to the Court considering only the items not prejudicial to the accused, an issue that I intend to refer to later in the judgment.

14. In cross-examination, PW1 confirmed that his investigations reflected that the accused had a long history of alcohol abuse. It was his evidence, that finding notwithstanding, that the psychological disorder was independent of his abuse of alcohol. He testified also that he established a history of mental illness in two or three of the accused's relatives and that the presence of alcohol could have served to aggravate the mental disorder the accused was suffering from. He was asked if the act of killing matricide is not abnormal and his response was that any killing, regardless of the identity of the victim, is abnormal. When suggested to him that because the accused had stabbed his mother more that 10 times, his actions pointed towards a frenzy of abnormality, the Doctor stated that he would rather term it anger and no more. He testified that because anger has various degrees, if put on the scale 1-10, he would measure the accused's above 5.

15. It was his further evidence that the accused failed to explain to him why he did what he did. It was suggested to him that that failure was consistent with mental abnormality and he stated that it may or may not be so consistent. He could not connect the number of stab wounds and the failure to explain the reason therefor to the influence of alcohol, preferring to leave the options open. It was his evidence that the crime in question could have been committed even without the influence of alcohol, although the presence of alcohol could serve to exacerbate the condition. He testified that it is only in cases of extreme intoxication that would result in the accused not exercising judgement as to whether what he was doing was right or not. This could happen, he further testified, when there is a combination of psychiatric disorder as well as intoxication.

16. It was suggested to him that considering the accused's history of alcohol abuse and his mental history it is possible that he could not differentiate right from wrong such that he did not know that what he was doing was wrong. In response, Dr. Leech said that he found it difficult to accept that proposition for the reason that it appeared that at the material time, the accused's behaviour suggested that he knew that what he was doing was wrong and further appreciated what its possible consequences could be. In this regard, he mentioned the events following his arrival at home; asking for dinner; wanted more onion in his food; sent for a knife; locked the kitchen door and later went outside and when approached by neighbours, he tried to run away. He formed the opinion that those facts appeared inconsistent with impaired judgement.

17.It was pointed to him that the issue of the accused attempting to run away was not in his report and he stated that although that may be the case, it was one of the matters that was on his mind and which he considered when he drew his conclusions. There may be issues that are pertinent that he may or may not include in his report, he further stated. He testified further that in drawing conclusions, he would rely in part on the history of the patients as recorded by nurses and the examinations carried out by doctors. It was his evidence in this regard that running away was one of the issues which he considered and which was included in the information placed at his disposal at the time he compiled the report. Lastly, he testified that the accused no longer seemed to require treatment for alcoholism because he had been in remand, which of its own was a kind of active treatment as the accused did not have access to alcohol, that abstinence thereby serving as a therapy on its own.

18. The Court made its own enquiries regarding the condition referred to as anti-social personality disorder. It was explained that this condition occurs when a person is unable to relate well with other people i.e. the rest of society. He often has a callous disposition towards those around him and has a tendency to use or take advantage of them and may be aggressive to an extent if his wishes or desires are not met. This condition has two components; namely it may be hereditary or be caused by the environment. In the latter case, the Doctor testified that conditions such as maternal deprivation; social inadequacies in lower social classes; peer pressure and substance abuse could result in the disorder in question or vice versa. Thereafter, the State closed its case.

19. In his evidence adduced from the accused's dock as it was unsworn, the accused testified that on the fateful day, he went to entertain himself with a friend of his, one Segwatagwata Magapa at a certain bar. They started drinking alcoholic beverages for the whole night, having started at around 1500hrs. The following morning, Magapa was supposed to service the accused's tractor and to that end, they went to purchase the service kit at Botoka. Having purchased the kit, they went to the same bar and continued drinking until the afternoon. It was his evidence that he did not know how he parted with Magapa or got home that day as he was heavily inebriated.

20. He was also unsure of the time of his arrival at home. He saw the deceased but could not recall what time that was. He could also not recall whether he had a quarrel with her or not. It was his evidence that he did not know what led him to kill his mother. The following morning, it is his evidence that he found himself at the police station and that is when he realized that he must have done something bad. He realized that his clothes had blood stains. The police then explained to him of the crime he had committed and he was thereafter taken for a psychiatric examination. It is his evidence that he was depressed and was put on treatment, which he was still continuing with. He testified that he is always thinking of his mother which depresses him necessitating that he visits the psychiatrist in Mahalapye.

21. He further testified that he was married and had children with his wife. According to his evidence, he lived harmoniously with his wife. Furthermore, it was his evidence that at Mahalapye prison, he did not fight with anybody. He had not been charged with threats to kill any person before the arrest. He admitted that he had a problem with alcohol consumption and that on 31 December, 2005, he had never drunk to that extent previously. He testified that when told that he had stabbed his mother, he recalled the incident but not vividly. Lastly, it was his evidence that when he committed the offence, he did not know that what he was doing was wrong and that had he known that it was wrong, he would not have done it. Thereafter, the defence closed its case without calling any other witness.

22. The questions for determination are firstly whether the accused had the mens rea to commit the offence in question. The other, which appears from the accused's unsworn evidence, is whether it cannot be said that the accused acted out of automatism in killing the deceased. I must at this early juncture, point out that my treatment of these two separate issues tends to coalesce and this is in the very nature and connectedness of the two questions legally. In regard to the first issue referred to above, the defence relied on the provisions of section 12 (4) of the Penal Code, which provide as follows:

"Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence."

The defence contended that in the instant case, the accused did not form an intention to commit the crime in question and that the proper verdict to return in the circumstances, so the argument ran, is one of not guilty of the offence.

23. In regard to the onus of proving that the accused had the necessary mens rea to commit the offence in question, the law is that it is the duty of the State to do so beyond reasonable doubt. In this regard, Mr. Marata referred the Court to the judgment of State v Bunga [1964-70] BLR 161 which confirms that position. In the Dube case (supra) at p.75 paras 96 and 97, the learned Judge quoted a more accurate and comprehensive position in these matters by making reference to the remarks of LORD DENNING in Bratty v Attorney-General For Northern Ireland [1963] 3 ALL ER 523 at 535 C-F, where the following appears:

"So it also seems to me that a man's act is presumed to be a voluntary act unless there is evidence from which it can reasonably be inferred that it was involuntary. To use the words of DEVLIN J., the defence of automatism 'ought not to be considered at all until the defence has produced at least prima facie evidence' . . . The necessity of laying a proper foundation is on the defence ...When, then, is a proper foundation? The presumption of mental capacity of which I have spoken is a provisional presumption only. It does not put the legal burden on the defence in the same way as the presumption of sanity does. It leaves the legal burden on the prosecution, but nevertheless, until it is displaced, it enables the prosecution to discharge the burden of proving that the act was voluntary. Not because the presumption is evidence itself, but because the presumption takes the place of evidence. In order to displace the presumption of mental capacity, the defence must give sufficient evidence from which it may reasonably be inferred that the act of the accused was involuntary. The evidence of the man himself will rarely be sufficient unless it is supported by medical evidence which points to the cause of mental incapacity. It is not sufficient for a man to say 'I had a blackout', for a 'blackout' as STABLE J., said in Cooper v Mckenna [1960] QB R at 419) 'is one of the first refuges of a guilty conscience and a popular excuse." (Emphasis added).

24. It would appear therefore that although the ultimate burden rests on the prosecution to prove every element of the offence wherewith the accused person is charged, it is sufficient for the prosecution to rely on the presumption created by section 10 of the Penal Code, that every man has sufficient mental capacity to be held responsible for committing crime. It then behoves the defence to dislodge that presumption on a balance of probabilities, by placing some evidence before the Court from which it can reasonably be inferred that the accused's act for which charges have been preferred against him were as a result of an involuntary act. This would appear to me to be the correct approach to the above issue in this jurisdiction and from which I will deal with the present case, as it is alleged by the defence that the accused's act of stabbing his mother was involuntary. See State v Samu [1989] BLR 191.

25. This approach also dovetails with the approach followed in the Republic of South Africa, as recently clarified and restated by the Supreme Court of Appeal in S v Eadie (196/2001) [2002] ZASCA 24, delivered on 24 March, 2002, where NAVSA J.A. stated the following at p3 para [2]:

"It is well established that when an accused person raises a defence of temporary non-pathological criminal incapacity, the State bears the onus to prove that he or she had criminal capacity at the relevant time. It has repeatedly been stated by this Court that: (i) in discharging the onus, the State is assisted by the natural inference that in the absence of exceptional circumstances, a sane person who engages in conduct which ordinarily gives rise to criminal liability, does so consciously or voluntarily; (ii) an accused person who raises such a defence must lay a foundation for it, sufficient at least to create a reasonable doubt on the point; (iii) evidence in support of such a defence must be carefully scrutinized and (iv) it is for the Court to decide the question of an accused's criminal capacity, having regard to the expert evidence and all the facts of the case, including the nature of the accused's actions during the relevant period." See also the other cases therein referred to.

Non-pathological incapacity was described in that case as occurring in cases where factors such as intoxication, provocation and emotional stress are extant and which result in mental sickness.


26. In my research, I have been unable to find any case in which the provisions of section 12 (4) above have been interpreted and applied in this jurisdiction. Counsel on both sides also declared their difficulty in finding relevant local authority in this regard. The only local case I could lay my hands on which dealt remotely with the provisions of section 12 was State v Charles [2002] BWCA 18; [2002] 1 BLR 89. Regrettably, the Court of Appeal did not consider section 12 (4) and in any event did not have to consider the provisions of section 12 (1) to (3) in any detail given the limited nature and scope of the question which arose for determination in that case.

27.It would appear to me that in order to get the full import of the provisions of section 12, it is only proper to quote the provisions of the entire section. They read thus:

"(1) Except as provided in this section, intoxication shall not constitute a defence to any criminal charge.

(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 by the malicious or negligent act of another person; or

(b)the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.

Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused person shall be discharged, and in case falling under paragraph (b) the provisions of section 11 of the Penal Code and of Part XII of the Criminal Procedure and Evidence Act shall apply.

Intoxication shall be taken into account for the purpose of determining whether the person had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence."

28. It would appear to me that the legislative regime quoted above is to be interpreted as follows: Generally, intoxication does not amount to a defence to any criminal charge. There are, however, two exceptions to that general rule. First, intoxication shall be a defence if at the time of the commission or omission in respect of which the said accused has been charged, (a) he did not know that such act or omission was wrong or (b) did not know what he was doing. In addition to either (a) or (b), the state of intoxication must have been caused without his consent by the malicious or negligent act of another person or the accused was at the time of such act or omission, by reason of such intoxication temporarily or otherwise insane.

29. In this regard, as stated in para 23 and 24 above, where an accused alleges insanity or in this case a defence founded on intoxication, he must lead some evidence from which it can be inferred that the action complained of was not voluntary. In this case, Mr. Marata, as I understood him, did not claim that his client was insane temporarily or otherwise as result of the intoxication. As stated by LORD DENNING above, there would ordinarily have had to be medical evidence adduced by the defence and from which it could be inferred that the accused was insane at the material time when he committed the act complained of. If there was such evidence and the Court was satisfied thereon that the accused was insane, whether temporarily or otherwise at the time, then the Court would be enjoined by the provisions of section 12 (3), to hold him not criminally responsible in terms of section 11 of the Code and he would have to be kept in a criminal lunatic asylum in terms of section 160 (1) of Part XII of the Act, pending a report to and directives by the President. See State v Charles

(supra) at p.93. I emphasise that this is not a case where insanity is alleged as a result of intoxication.

30. I should point out that in point of fact, the only medical evidence adduced was by the State in which the Doctor testified and he was not controverted in his evidence and conclusions, that at the time that the accused committed the offence in question, he was inebriated but was not abnormal i.e. he was not insane, temporarily or otherwise. In the Charles case (supra), TEBBUTT A.J.P. (as he then was), said the following of expert evidence in these and related matters at p. 95 C-E:

"It is well recognized that expert opinion is always able 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 Davey v Edinburgh Magistrates [1953] SC 34 at p40; R v Albert Edward Matheson [1958] 42 Cr App 145 at p 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."
It is clear, in view of the foregoing, that there is no evidence that the accused was insane at the time that he committed the offence in question. This being a matter which falls outside my expertise, I cannot in the absence of supporting evidence, find that the accused was insane when he committed the offence in question.


31.In cross-examination, it was put to the doctor that the accused behaviour was suggestive of a frenzy of abnormal activity, to use Mr. Marata's own language. The doctor testified that it was not a frenzy of abnormal behaviour but he termed it anger. He testified that he would not attach too much weight on the accused's failure to explain why he did the sordid act as someone who was fully aware of what he was doing may seek to use that as a shield. It was the doctor's evidence that in the circumstances, from his assessment of the accused, the latter was able to know what he was doing and his behaviour suggested that he appreciated the possible consequences of his conduct. In conclusion, the doctor's evidence was that there was no abnormality or insanity in the accused's conduct.

32.I now turn to consider the other defence stipulated in section 12 (2). That is the defence involving the accused not knowing what he was doing was wrong or not knowing what he was doing at all. For this defence to hold, there must be evidence that the accused took the intoxicating substance, whether it be alcohol or narcotic drugs, as stated in section 12 (5), without his consent and through the malicious or negligent act of another person. I must state that the accused's case does not fall in this category at all for the reason that his evidence was that he took the alcoholic drinks of his own volition. There is no suggestion that somebody maliciously or negligently caused him to take the alcohol without his consent.

33. It is worth mentioning that according to section 12 (3), if the accused had been able to establish this defence, it would have entitled him to be discharged. This would therefore suggest that the effect of intoxication under section 12 (2) (a), amounts to a complete defence, which is clearly understandable in my view, because the accused would be rendered either oblivious to what he is doing or oblivious to the fact that what he is doing is wrong, not as a result of his own volitional consumption of alcohol, but as a result of the malicious or negligent action of another. It would appear that this defence was recognized as such in Charles' case at p. 93, C, where the Court said that "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 be treated in accordance with section 11 of the Penal Code and Part XII of the Criminal Procedure and Evidence Act." (Emphasis added).

34. The foregoing considerations lead me to the inexorable conclusion that there are two defences which avail a person who claims intoxication. These are in respect of a person who at the time of the commission of the offence, does the act or omits to do what he was supposed to do, but did not know that his act or omission was wrong or did not know what he was doing, as a result of intoxication induced without his consent in terms of section 12 (2) (a). In that case, as stated earlier, he is to be discharged. The other defence applies where the person at the time he commits the act complained of, does not know that such act or omission was wrong or did not know that what he was doing was wrong as a result of self-induced intoxication and in which case he is to be dealt with in accordance with section 11 of the Code, as read with Part XII of the Act.

35. The question that arises for determination, is whether the submission by Mr. Marata that there is a defence borne out by the provisions of section 12 (4) as well, is correct. It was his contention that the accused should benefit thereunder and be declared not guilty as he did not have a specific intention of committing the offence in issue.

36. In my view, section 12 (4) applies in determining the question whether the accused did not know that what he was doing was wrong or did not know what he was doing as stated in section 12 (2). In deciding whether the accused either knew what he was doing was wrong or did not know what he was doing, both of which might affect the issue of his intention, which must be proved in criminal trials, the Court is required to take into account the question of the accused's inebriation and consider whether as a result thereof, it can be said that the accused did, on the evidence, form an intention whether specific or otherwise, to commit the offence in question. If he did not, then he would not be guilty. The wording employed i.e. that he is not guilty, would to my mind, suggest that this sub-section constitutes a full defence as well and Mr. Marata's contention that it constitutes a defence is therefore correct in my view.

37. This is, in my opinion correct and is based on the ordinary principles of criminal law, where there is a requirement for the contemporaneity of the actus reus and the mens rea for a person to be found guilty of committing an offence. The provisions of section

12 (4), appear to demand that even though the person may be intoxicated, it must be shown that nonetheless, he still had the necessary mens rea for committing the offence, whether specific or otherwise. In support of the view I have taken of the matter, the learned authors, Smith & Hogan, Criminal Law, Butterworths, 10^th Ed., 2002, say the following at p.241:

"Intoxication impairs a person's perception and judgment so he may fail to be aware of facts, or to foresee results of his conduct, of which he would certainly have been aware, or have foreseen had he been sober. So, intoxication may be the reason why the defendant lacked the mens rea of the crime charged. When D relies on evidence of intoxication he does so for the purpose of showing that he lacked mens rea. This is its only relevance so far as liability is concerned ... Evidence of intoxication negativing mens rea is a defence (i) to crimes requiring a 'specific intent' whether the drink or drug was taken voluntarily or involuntarily (ii) to all crimes where the drink or drug was taken involuntarily ... (iii) to all crimes where the drink or drug is taken voluntarily in bona fide pursuance of medical treatment or prescription."

38. The foregoing excerpt appears to be on all fours with the statutory regime in force in this jurisdiction at present and as referred to in the provisions of the Penal Code considered above. I would, for that reason, accept the conclusions as fully applicable to our law as well.

39. The learned authors also cite the celebrated English case of D.P.P. v Majewski [1976] UKHL 2; [1977] AC 443, [1976] All ER 142 for the proposition that evidence of self-induced intoxication negativing mens rea is a defence to a charge of a crime requiring specific intent but not to a charge of any other offence. See Smith & Hogan (supra) at p 242. It would appear from page 243 of the same book that murder, amongst other offences, including wounding, or causing grievous harm with intent, theft, robbery requires specific intent. The question of whether that intent has been shown in the instant case is a matter to which I shall revert in due course. I may mention that in the Republic of South Africa, in the then seminal case of S v Chretien 1981 (1) SA 1097 RUMPFF C.J. dismissed on policy grounds the requirements of specific intent of English law as applied in the Majewski case. This is an issue I need not advert to for the reason that section 12 (4) of the Penal Code appears to recognise and require the Court to take into account the question of specific intent in relation to intoxication cases in this country.

40. The issue that I now turn my attention to is whether in the instant case, it has been shown that the accused is entitled to benefit from the provisions of section 12 (4) i.e. whether he can not be found guilty as a result of intoxication because he cannot be said to have formed specific or other intent. As stated earlier, murder is an offence that requires specific intent and it behoves the Court to find out whether in the present scenario, specific intent to commit the crime of murder is borne out. In State v Ntwayakgosi [2003] 1 B.L.R, CHATIKOBO J. stated the following:

"There can be no gainsaying that a continuous intake of alcohol over a period of time can impair a persons (sic) faculties to a point where he fails to appreciate the consequences of his conduct. It is precisely for this reason that the Penal Code provides in section 12 (4) thereof that intoxication shall be taken into account for the purpose of determining if the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence."

41. In the Chretien case (supra), RUMPFF C.J. stated at p 1104 H, that criminal capacity is the ability to distinguish between right and wrong and to act in accordance with that appreciation. It was further stated that a person lacks criminal capacity if he committed the act for which he stands indicted but was so drunk that he did not realize what he did was unlawful or that his inhibitions had substantially disintegrated - see p 1106 -C. I find the above comments highly insightful and relevant to the present case. I will adopt them in finding out whether the accused can be said to have had the requisite criminal capacity to commit the offence in the instant case. (N.B. The references above have been taken from the Eadie case on account of the Chretien judgment being in the Afrikaans language, there being no official interpretation available).

42. In the Eadie case (supra), the Court held that in order to untie the Gordian knot in such cases, "this Court, in assessing an accused person's evidence about his state of mind, weighed it against his actions and the surrounding circumstances and considered it against human experience, social interaction and societal norms" - see para 45. That, in my view, would be a useful guide in casu as well. Factors that should, in my view, not be allowed to sink into oblivion in this case are the following: Before the killing, the accused gives a vivid account of his movements and the time when he started imbibing alcohol. He also gives the types of liquor that he imbibed. He also chronicles coherently the events of the following day, where the drinking spree continued unabated. He states that he does not recall how he parted with his friend and how he arrived at home. He, however, remembers clearly that he saw the deceased upon arrival but cannot recall whether he had a quarrel or misunderstanding with her. He states further that he does not know what led him to kill her. It was only when he found himself at the police station that it dawned on him that he may have done something bad.

43. The evidence, which is accepted, is that the accused asked for onions to be added to his food, a request that was met. He thereafter sent for the knife, locked the door and mercilessly stabbed his mother numerous times. According to the Psychiatrist, the accused thereafter ran away from the scene. It was from the foregoing that the Psychiatrist formed the opinion that the accused knew what he was doing. It would appear that a lot of emphasis has been placed on the allegation by the accused that he did not remember exactly what happened. In Queen v O' Connor [1980] HCA 17; (1980) 54 ALJR 349 at 258, BARWICK C.J. reasoned that lack of recollection is not necessarily indicative of the fact that the act was involuntary as a result of alcohol consumption or was sufficient to 'prevent the formation of an intent to do the physical act involved in the crime charged'.

44. I entirely agree with this approach and state that what is important is the nature of the evidence led surrounding the commission of the act in question, and from which the Court can be in a position to assess the accused's state of mind. If recollection was to be a chief consideration, many accused persons would choose not to remember or choose to say that they do not remember what exactly occurred and would therefore be acquitted, an eventuality that can inspire little confidence in the administration of justice in the minds of the common right-thinking man. It was in appreciation of this that BARWICK C.J. stated the following Queen v O'Connor (supra) at 358:

"These principles [general principles of criminal responsibility] have been established bearing in mind and not disregarding the need of the society for protection from violent and unsocial behaviour. These principles, on the other hand, provide the society with a protection against violent and unsocial conduct, whilst on the other hand, maintain a just balance between the Crown and the citizen who is charged with having broken criminal law."

45. In the instant case, it would appear to me that it cannot be said that the act which caused the death of the deceased can be considered to have been that caused by automatism. I say so because the accused had a presence of mind to specifically ask for onions; send for a knife; lock the door before butchering his mother. Dr. Leech's evidence that he learnt that the accused ran away after the incident, was challenged by Mr. Marata on the grounds that it had not been confirmed in the Doctor's report or confirmed by the evidence of the other witnesses. Dr. Leech stated that the information he received and the history given, suggested that the accused ran away after the incident but he did not actually record this in his report. I find Mr. Marata's concern justifiable. There are, however, the admitted portions of the evidence of PW13, to the effect that the accused showed him the scene of crime and even pointed out where the deceased was sitting when he stabbed her. This evidence, in my view, serves to show that the accused knew what he was doing and remembered it as well immediately after the commission of the offence. That he may not recall it now cannot operate in his favour.

46. The accused said he did remember the stabbing "but not much". It was also his evidence that he did not know that what he was doing was wrong and that if he did, he would not have done the act in question. In my view, this is where the words of LORD DENNING in Bratty (supra), where it was stated that the accused's ipse dixit will hardly be sufficient, unless it is supported by medical evidence. In the instant case, the only evidence before Court is that adduced by the State and it points to the conclusion that the accused knew what he was doing and that it was wrong. Dealing with the aspect of forgetting the events, LORD DENNING said the following in Bratty (supra) at 523 -

"When a man is charged with dangerous driving, it is not a defence for him to say 'I don't know what happened. I cannot remember a thing'. . . Loss of memory afterwards is never a defence in itself, so long as he was conscious at the time".

47. There is no evidence to gainsay that of the Doctor in the instant case. The evidence of the accused, unsupported as it is, does not, in my view, justify a conclusion that there is a reasonable doubt which should enure to his benefit. It must be recalled that in such cases that although the onus is on the State, the defence must lay a foundation which will be sufficient to brook a departure from the ordinary presumption that an accused person acts consciously and voluntarily and enable the Court to find that the basis laid by the accused does create a reasonable doubt on that point. From the account given, the accused was conscious at the time and his behaviour before and after the event appears to have been coherent, suggesting that he was fully conscious at the material time.

The Doctor opined that the accused may have been motivated by anger in order to launch such a brutal attack on the deceased in this matter. He was not controverted. The very actions involved in stabbing a person some 12 different times could hardly have been the result of an involuntary act, considering the number and nature of the assaults, particularly viewed in tandem with the events preceding the actual stabbing i.e. the calling for the knife and the locking of the door. His recollection of the events as testified by PW13 is also critically important and points to the direction that the accused knew what he did and that it was wrong. Furthermore, the foregoing facts appear to me to exclude the possibility that the act was one of automatism as stated earlier. In the Eadie case (supra), at p 40, para 61, the learned Judge of Appeal said:












"When an accused acts in an aggressive goal-directed and focused manner, spurred on by anger or some other emotion, whilst still able to appreciate the difference between right and wrong and while still able to direct and control his action, it stretches credulity when he then claims, after assaulting or killing someone, that at some stage during the directed and planned manouevre he lost his ability to control his actions. Reduced to its essence it amounts to this: the accused is claiming that his uncontrolled act just happens to coincide with the demise of a person who prior to that act was the object of his anger, jealousy or hatred."

The actions of the accused would appear from the nature and extent of the wounds suffered, to have been aggressive, goal- directed and inflicted in a focused manner, to borrow from the language of NAVSA J.A. He called for the knife, which is a lethal weapon, locked the door, clearly in order to inhibit the movements of the victim, which could provide an escape and then delivered the telling blows that sent the deceased to the celestial realms. It must be recalled that the Doctor's evidence that the accused acted out of anger has not been controverted and was therefore not dislodged.

It therefore stands and must be accepted and placed into the equation.

49. One issue that cannot be overlooked in dealing with the accused's evidence is that no medical evidence was called to lay a sufficient basis upon which it could be said that he did not know what he was doing or did not know that what he was doing was right or wrong as a result of his inebriation. He proceeded to adduce unsworn evidence, which, by virtue of its very nature does not admit of the rigours and sieve of cross-examination, which may help in the testing of the truth and credibility of evidence. For that matter, the weight attached thereto is relatively less than if the evidence was under oath or affirmed. Where there is a conflict between the two pieces of evidence i.e. sworn and unsworn evidence, unless the sworn evidence is so absurd or of so romancing a character and finds no support from the facts or probabilities so that it cannot possibly be believed and the latter accords more with the probabilities more than the former, then the sworn evidence must take pre-eminence in my view. That is the conclusion to which I arrive in dealing with the accused's evidence in this case, particularly on the point that he does not know that what he was doing was wrong and that he did not know what he did.

50. In the light of the foregoing, I come to the conclusion that the accused cannot benefit from the provisions of section 12 (4) of the Code nor any other sub-section thereunder, for that matter. I therefore come to the conclusion and find for a fact that the accused killed the deceased of malice aforethought and that he had no justification, whether partially or in full for his aforesaid actions. He is accordingly found guilty of murder, contrary to section 202 of the Penal Code, as charged.



EXTENUATING CIRCUMSTANCES

51.The Court is, at this stage, required to enquire into the existence or otherwise of extenuating circumstances, the accused guilt being a fait accompli. In Baliki v The State [1997] B.L.R. 666 at 668, LORD ALLANBRIDGE J.A. cited with approval the timeless and lapidary remarks of HOLMES J.A. in S v Letsolo 1970 (3) SA 476, regarding the factors that the trial Court has to consider in matters of extenuation. The Court has to consider:

"(a) whether there are any factors which might be relevant to extenuation, such as immaturity, intoxication, or provocation (the list is not exhaustive);

(b)whether such facts, in their cumulative effect probably did have a bearing on the accused's state of mind in doing what he did;



(c)whether such bearing was sufficiently appreciable to abate the moral blameworthiness of the accused in doing what he did.

In deciding (c), the Court exercises a moral judgment."

52. It is clear from the evidence led during the trial that the accused in the instant case had imbibed large quantities of alcohol and this matter was the central issue in the determination of the accused's guilt. I am well satisfied that the fact of the accused's severe state of inebriation must, in the circumstances, rank as an extenuating circumstance and I so hold. See S v Mothokgo [1985] B.L.R. 247. Although I do not make a firm finding thereon, it cannot be said that the killing of the accused was not premeditated, considering that the accused called for a knife and thereafter caused the house to be locked in order to prevent the deceased from egressing the house. In my view, it does not require an elaborate planning and time for the Court to find that the crime was premeditated. It is always a matter of degree and subject to the attendant facts of the matter. I do, however, find, as submitted on your behalf, that your condition mentioned by Dr. Leach, i.e. anti-social personality disorder, may have had a bearing in you committing the offence that you did and can, in the circumstances, amount to an extenuating circumstance. See The State v Gadiwe [2005] 1 B.L.R. 212.

53. In view of the finding I have made above, I am of the view that there is at least one extenuating circumstance, which entitles this Court to impose a sentence other than that of death, as stated in section 203 (2) of the Penal Code. I shall proceed straightway to consider the issue of the appropriate sentence in this matter.

SENTENCE


54. The Court is now called upon to consider a condign sentence, which requires an assessment of the interests of the community, the interests of the accused and the seriousness of the offence. In carrying out this formidable task, I will have regard to the timeless remarks of JONES J.inSy Qamata 1997 SACR 479 at 480, where the learned Judge expressed the following trenchant remarks about the issue of sentencing and the applicable principles:

"It is now necessary for me to pass sentence. In doing so, it is proper to bear in mind the chief objects of criminal punishment, namely retribution, the prevention of crime, the deterrence of criminals and the reformation of the offender. It is also necessary to impose a sentence which has a dispassionate regard for the nature of the offence, the interests of the offender and the interests of the society. In weighing these considerations, I should bear in mind the need:



(a)to show an understanding of and compassion for the weaknesses of human beings and the reasons why they commit serious crimes, by avoiding an overly harsh sentence;




(b)to demonstrate the outrage of society at the commission of serious crimes by imposing an appropriate, and if necessary, a severe sentence' and



(c)to pass a sentence which is balanced, sensible and motivated by sound reasons and which will therefore meet the approval of the majority of law-abiding citizens. If I do not, the administration of justice will not enjoy the confidence and respect of society."

55.In considering the above issues, I will commence with the factors which the Court has been urged to consider in your favour. In the first place, I will consider that you are a first offender with no ecorded previous conviction and that you have lived a considerable period of your life time, more than half a century, to be precise, in a manner consistent with lawful behaviour. I will also consider that at the time you committed this dastardly offence against your mother, you were highly inebriated and that this may have seriously impaired your sense of judgment.

56. I will also take into account your own personal circumstances, namely that you are yoked to a common law wife and from which union four minor children were born and who were hitherto dependant upon you for sustenance. I will also consider that your actions appear, from the evidence, to have been an aberration and may have been influenced in part by your anti-social personality disorder, coupled of course with your consumption of copious amounts of alcohol as stated earlier.

Having said the foregoing, it is an ineluctable fact which cannot be gainsaid that the offence which you committed and of which you have been convicted is serious and shocking to one's conscience. You literally butchered your own mother and inflicted numerous stab wounds on the very body that once carried you. There is no evidence that there was anything said or done by the deceased for her to merit such a brutal attack on her person. In the case of Joseph Gaonakala v The State CLCLB-000052-05, DR. TWUM J.A. decried the incidence of crimes involving violence and resulting in death in the following terms:

"The greatest menace to our society is the degree of permissiveness which pervades every facet of our lives. The fundamental freedoms enshrined in our constitutions will be meaningless if there are no human beings to enjoy them. In my view, the element of deterrence is one of the important factors to be taken into account in determining an appropriate sentence. Limbs may be rehabilitated and bones reset, but death is too finite! The Courts must not relent in their determination to use the machinery of the law to protect life."
57. Having said the above, I am of the view that the fact that you took the life of your own mother and which obviously sowed seeds of discord within the family will serve as an Albatross to you. It is in fact in evidence that you have been deeply affected by this event and that you are receiving treatment in that respect. The time you have spent in custody will hopefully have given you time to reflect upon your future conduct and to order your life accordingly. In closing, I will have regard to the sentiments expressed by MOORE J.A. in Mosiiwa v The State [2006] 1 B.L.R. 214 at 219 B-C in respect of serious or prevalent crimes:

"It is also in the public interest, particularly in the case of serious or prevalent offences, that the sentencer's message should be crystal clear so that the full effect of deterrent sentences may be realized, and that the public may be satisfied that the Court has taken adequate measures within the law to protect them. By the same token, a sentence should not be of such severity as to be out of all proportion to the offence, or to produce in the minds of the public the feeling that he has been unfairly and harshly treated."

58. Taking all the foregoing factors into account, and flavouring the sentence with a due proportion of mercy as I am required to, I find that the following sentence is condign:

You are hereby sentenced to twelve (12) years imprisonment, which is reckoned to run from the date of your incarceration, namely, 1 January, 2005.

59. Finally, I should mention that the delivery of this judgment has taken much longer than would ordinarily have been the case. A few factors conspired and contributed to this delay. First, the case dealt with virgin territory in so far as the provisions of section 12 (4) of the Penal Code are concerned. This necessitated that I indulge in a lot of research for guidance outside this jurisdiction. Furthermore, the legal issues at play and their application are emotive and not straightforward, from both moral and legal perspectives. Secondly, I was involved in other demanding Court schedules, including two successive continuous rolls, during the months of August and September, respectively, such that even when the judgment was ready about 5 weeks earlier, I could not find the time within the busy schedule, to deliver the same, particularly considering that I was sitting on circuit Court outside Francistown during that period.

DELIVERED IN OPEN COURT IN FRANCISTOWN ON THIS THE 12^th DAY OF OCTOBER, 2007.

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