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IN THE COURT OF APPEAP OF THE REPUBLIC OF BOTSWANA

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IN THE COURT OF APPEAP OF THE REPUBLIC OF BOTSWANA Powered By Docstoc
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IN THE COURT OF APPEAL OF THE REPUBLIC OF BOTSWANA HELD AT LOBATSE Court of Appeal Criminal Appeal CLCLB -076-07 In the matter between: RAINA D. MOTLALEKGOSI v THE STATE Mr. L A Masire for the Appellant Mr. B C Nlanda for the Respondent JUDGMENT CORAM: TEBBUTT, J.P MOORE, J.A. LORD COULSFIELD, J.A. LORD COULSFIELD JA:
1. The appellant was charged with the murder of Senwelo Modisenyane on 14 September 2003 at Gaborone West. He was convicted, after trial, on 9 November 2007 and was sentenced to imprisonment for 15 years. He now appeals against the sentence imposed on him.

Appellant

Respondent

2.

The appellant and the deceased had previously had a relationship but at the material time the deceased had begun a relationship with another man, Ontlametse Modisane, also referred to as Mmutla. The deceased was working

2 at a phone shop in Tawana, a residential area in Broadhurst, Gaborone, and was staying with a girl called Duduetsang and Duduetsang’s elder sister, who lived near the phone shop. The appellant was living in Molepolole. The body of the deceased was found on 11 September 2003 in an area of bush in Block 6 Gaborone at a distance of more than 3 kilometres from the area of the phone shop. She had sustained two stab wounds, one on the upper and outer quadrant of the left breast and one in the left side of the chest. The appellant was arrested, after some police investigation, on 14 October 2003. The appellant’s sister and a friend of the appellant gave evidence that on a night sometime in 2003 the appellant had been frightened and crying, and had said that he had stabbed his girl-friend. The appellant made no admissions at the time of his arrest but in evidence he admitted that he had been engaged in a fight with the deceased on 10 September 2003 and that he had stabbed her with a knife. He claimed, however, that he had acted in self-defence, or alternatively under provocation. There was no direct evidence other than that of the appellant himself as to what exactly occurred when the fatal wounds were inflicted. In order to establish that the appellant was guilty of murder, the State relied on inferences from evidence about events on 9 and 10 September and from the circumstances in which the body of the deceased was found and also on evidence which tended to cast doubt on the account given by the appellant. Although the appeal is only against sentence, it is necessary to give some account of the evidence, in order to understand the circumstances established at the trial.

3 3. The main evidence about the incidents on 9 and 10 September was given by Duduetsang and Mmutla. Duduetsang said that she went to the phone shop at about 9 pm on 9 September and saw a young man, evidently the appellant, wearing a black leather jacket and a red headscarf with the deceased. Later, Mmutla came and called the deceased to him. The man in the headscarf called her back, and she went to him and then again back to Mmutla, while the man in the red scarf remained next to the shop. Duduetsang heard the man in the headscarf say that he would kill a person and “go to Moleps”. She also said that she saw him holding and unclasping an okapi knife. Mmutla described what had happened in a similar way. He did not speak to hearing any threat, but he did say that while he was standing with the deceased he saw the man in the headscarf advancing on him with an unclasped okapi knife, at which point he ran away. He also said that the deceased had told him that this man was her boyfriend, and that he was demanding that he and the deceased should end their relationship. There was some further evidence about comings and goings between the deceased, the appellant and Mmutla, which is not material for the purposes of this appeal. Later, the deceased asked Duduetsang and her sister whether the man in the red scarf could spend the night in their room, and this was agreed: she did not see him the following morning, but Mmutla gave evidence that on that morning, 10 September he came back to the phone shop and found the man there. Mmutla happened to be carrying two drinks, for himself and the deceased, and out of embarrassment offered one to the appellant, who refused it: and after some further exchanges, Mmutla left the shop.

4 4. The only direct evidence about what happened next day came from the appellant. He said that he asked the deceased to accompany him to the place where he would take the bus for Molepole, and that she went with him. They took a combi to a place in Block 6 and then started walking, cutting across the bush. He then gave an account of what happened when they got to or near the bus station, which involved the deceased attacking him, including striking him with stones to his injury, and claimed that it was as a result of this he stabbed the deceased, either in self-defence or under provocation. He then took the bus to Molepolole. Given the known distance between the phone shop and the place where the deceased’s body was found, it can be accepted that the deceased and the appellant must have travelled by combi and then walked into the bush. The judge carefully examined the remainder of the appellant’s evidence and, for cogent reasons, rejected it entirely. In particular, the judge pointed out that other witnesses who saw the appellant after the murder contradicted his claim to have sustained an injury to his eye. The evidence also shows that after leaving the deceased’s body, the appellant must have travelled a distance of over a kilometre to reach a bus stop.

5.

It follows that the picture which emerges from the evidence is that the appellant went to the phone shop in order to speak to the deceased about her relationships with him and with Mmutla: that while he was there he behaved and spoke in a threatening way, and showed that he was in possession of a knife:and that having arranged to spend the night in the house, he induced her to go by bus and on foot to a place in the bush where he stabbed her and left her, while he returned to Molepolole.

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6.

The appellant was a first offender and was 23 years old at the time of the offence. He gave evidence in mitigation, in which he expressed regret and remorse. He lived with his mother and assisted her financially. He also helped to provide for a child of his sister. He explained that he found prison life very hard and gave assurances that he had reformed. He said that he had been very hurt by the behaviour of the deceased, with whom he had hoped to establish his own family. Lesetedi J took all these factors into account, but said that he had found no reason to depart from the normal range of sentences in cases of this kind, and sentenced him to 15 years imprisonment.

7.

The submissions for the appellant repeated the submissions made in mitigation to the judge, with two additions. .It was submitted that the behaviour of Mmutla in offering the appellant a drink had amounted to ridiculing him and added to his sense of injury. It was also submitted that the judge had laid too much emphasis on the faults in the appellant’s evidence in defence, instead of concentrating on the circumstances which had led to the commission of the crime.

8. It is no doubt true that the appellant acted under the influence of strong emotion when he murdered the deceased. This is, however, not a case in which the assailant acted out of some sudden pressure causing him to lose control. The appellant had armed himself with a knife before he came to visit the deceased, and was prepared to act and speak threateningly. He induced the deceased to go alone with him into the bush and concocted a false story as to

6 how the crime was committed in order to try to exculpate himself. In all the circumstances, there is no reason to think that the judge erred in imposing the sentence of 15 years imprisonment, and this appeal should be refused. It is accordingly ordered that the appeal is dismissed and the conviction and sentence of 15 years imprisonment are confirmed.

DELIVERED IN OPEN COURT AT LOBATSE THIS ---- DAY JULY 2008.

…………………………. LORD COULSFIELD JUSTICE OF APPEAL I agree: ..…………………… P.H. TEBBUTT (JUDGE PRESIDENT)

I agree: ……………………………. S. MOORE (JUSTICE OF APPEAL)


				
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