STATE v.

MOKOTEDI 1973 (1) BLR 85 (HC)

Citation: 1973 (1) BLR 85 (HC)

Court: High Court

Case No:

Judge: Rooney J

Judgement Date: May 11, 1973

Counsel: M J Irwin for the State I S Kirby for the Accused

Flynote

Criminal Law - Murder - Failure to call medical evidence as to the cause of death.

Headnote

Accused was charged with committing murder by chopping the Deceased with an axe on the
head. No medical evidence was given as the Doctor who had performed the post-mortem
examination had left Botswana Government employ and had returned to Korea.
Held:
That in the absence of medical evidence the Court could not find that the evidence was such as to
satisfy the Court beyond reasonable doubt that the assault was so violent that it could not but
have caused immediate death.

Case Information

Trial
M.J. Irwin for the State.
I.S. Kirby for the Accused.

Judgement

Rooney, J.
The Accused stands charged with murder. The indictment alleges that at Lesototo, lands in the
south-western magisterial district on or about 18th October, 1972 he of malice aforethought
caused the death of Setenki Matori by hitting him with an axe on his head.
The Accused pleaded not guilty, but during the course of the trial his Counsel, Mr Kirby,
formally admitted on behalf of the Accused that on the night in question he struck Setenki Matori
with the axe produced to the Court, which axe was the property of the Accused.
The Accused is married to a woman, Kootswele, who has borne him twelve children. The
Accused in evidence said that during 1970, while he was working at a mine near Kanye, he
returned home early one morning to find Setenki sleeping with his wife. On this occasion he was
forbearing to both parties and he says that having warned them, he continued to live with his
wife in the belief that her association with Setenki had come to an end.
According to the Accused, on a day last October at Lesototo he informed his wife that he was
going to a wedding party at the nearby village of Moshupa. His wife said that she would also be
attending this function and they arranged to meet there. The Accused arrived at this place at 5.30
p.m. where he partook of much liquor and he left for his home at 8.30 p.m. To his surprise he did
not see his wife at the wedding party.
On his return to his home at Lesototo he expected to meet his wife there but she was not present.
His children told him that she had not returned since the morning. The Accused then went to bed,
but at 11.30 p.m., worried by the continued absence of his wife, he arose and went in search of
her on his bicycle. He took with him an axe. He explained that it was his

1973 (1) BLR p86

ROONEY J
normal practice to carry an axe with him. He first went to the home of the Matori family who
lived nearby.
He went to Setenki's house. He called out but no-one answered. There was no door to this hut
and as he stood facing the entrance he saw his wife's head and that of Setenki lying on the same
pillow beneath one blanket. He then entered the hut shouting "Matori, what is your son doing to
me?" and started chopping the couple with the axe.
He said, and I quote "My intention was to kill them all. I was angry. I did not wait. As soon as I
entered I started chopping. I was not thinking of what I was doing but I became afraid when I
noticed I had killed people. I do not recall in my anger how many blows I struck.''. Later in
evidence he said "I did not know which I had killed as I was chopping both of them". The axe-
head became detached from the handle in the course of the chopping. The Accused was unable to
say how hard he struck his victims with the axe or how many times he chopped at them. People
appeared on the scene and the Accused went off in search of his daughter Selenah (P.W.5). He
told her that he had killed her mother and Setenki.
In view of the admissions made by the Accused in his evidence, the only issue before the Court
is to whether the Accused was guilty of murder or of some lesser offence.
When the father of the Deceased came with a light the Accused said that he saw that he had
inflicted a wound on Setenki behind the left ear which he described as being "as if I had hit him
with the back (of the axe) and it made a cut".
The only other evidence led as to the nature of the wound or wounds inflicted on the Deceased
can be summarized as follows: Keipheditse Matori (P.W.2), the brother of the Deceased, said
that he saw three lateral wounds on the left side of the head stretching from the ear to the top of
the skull. He saw these wounds immediately after they were inflicted, by the light of the fire, and
again the next morning when the police took away the body of Setenki in a truck.
Matori Mokibe (P.W.4), the elderly father of the Deceased, saw a cut on the ear of his son which
he described as a "deep wound" across the left side of the head over the ear three or four inches
in length and very deep. He saw the same wound the next morning. Both these witnesses are
uneducated, and their descriptions of the injuries are not in conformity with each other.
No medical evidence was led as to the nature of the wounds or the cause of Setenki's death. Dr
Z.P.J. Keshipilwe explained to the Court that on 29th October, 1972, when he took up duty at the
hospital at Lobatse, he met a certain Dr Yoon. It appears that this Dr Yoon performed a post
mortem examination on the body of Setenki, but before the preparatory examination was held in
February, he had returned to South Korea and

1973 (1) BLR p87

ROONEY J
was not available to give evidence. It was thus not possible to place before the Court evidence
which might have established conclusively the nature of the injuries inflicted and the cause of
Setenki's death. Evidence as to the post mortem examination might have been available if Dr
Yoon was still in Botswana.
This is not the first occasion on which the Court has had to contend with a situation in which
medical evidence was not available at the trial because the medical practitioners concerned had
left the country before the Court proceedings in which they were required as witnesses
commenced. I can only assume that this unsatisfactory state of affairs is due to a failure to give
precise instructions to both Government medical officers and police officers as to their duties in
this regard.
It has been urged upon me that notwithstanding the absence of medical opinion the Court is
entitled to assume from other circumstances that the blow with the axe delivered by the Accused
caused the death of Setenki. It was submitted by Mr Irwin that there are numerous cases in which
Courts have been satisfied both as to the death of a victim and the cause of his death where no
body has been found. In these cases the State is excused from leading medical evidence as to the
cause of death because no medical practitioner has had an opportunity of examining the corpse.
In the present instance, a post mortem examination was carried out, but the medical practitioner
who performed it did not give evidence either at the preparatory examination or at the trial, nor
did he issue a written report which might have been received in evidence under section 218A of
the Criminal Procedure and Evidence Proclamation (Cap. 18) (as amended).
While I have been unable to find any authority bearing directly on this point, in the case of Waihi
& Another v. Uganda (1968) E.A. 278 at 280 Spry, J.A. delivering the judgement of the Court of
Appeal for East Africa in a case where the medical evidence adduced did not exclude the
possibility of death from natural causes, had this to say -
"Such evidence is always desirable and usually essential, but there are exceptions. There have,
for example, been several cases in East Africa where persons have been convicted of murder,
although the body of the victim was never found and the case against the Appellant depended
entirely on circumstantial evidence. There may be other cases where medical evidence is lacking
but where there is direct evidence of an assault so violent that it could not but have caused
immediate death. On the other hand, where there is medical evidence and it does not exclude the
possibility of death from natural causes, the task of the prosecution is very much harder and only
in exceptional circumstances could a conviction for murder be sustained."

1973 (1) BLR p88

ROONEY J
In the present instance, although there is evidence that the Deceased was struck on the head with
an axe and suffered a head wound and was dead the next day, I am not satisfied that this
evidence goes so far as to establish beyond reasonable doubt that the assault on the Deceased by
the Accused was so violent that it could not but have caused immediate death. That being the
case, it is not possible to bring in a verdict of either murder or manslaughter against the Accused
and it is not necessary to decide whether or not the provocation offered to the Accused by the
circumstances in which he found the Deceased with his wife was in itself sufficient to reduce the
offence from murder to manslaughter.
However, there can be no doubt that the Accused admitted that he perpetrated a serious assault
on the Deceased. In addition, there was other evidence placed before the Court that such an
assault took place. The Accused does not appear to have concerned himself with the
consequences of his action, although he admitted a desire to kill. It was his intention at the least
to do some grievous harm to Setenki and in this he succeeded, and his conduct amounted to the
offence of doing an act intended to cause grievous harm contrary to section 227 (a) of the Penal
Code, and he is found guilty accordingly. My Assessors concur with this verdict.