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LESOTHO
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU C OF A (CRI) NO. 5/2023
In the matter between:
LEPOTA NATSOANE APPELLANT
AND
REX RESPONDENT
CORAM: MOSITO
DAMASEB AJA
CHINHENGO AJA
HEARD: 24 APRIL 2025
DELIVERED: 2 MAY 2025
FLYNOTE
Criminal Law – Murder – Circumstantial evidence – Whether inference of intent to kill established beyond reasonable doubt – Culpable homicide – Whether trial court misdirected itself in failing to consider absence of mens rea for murder – Penal Code Act 2010 (Lesotho), sections 40, 41.
The appellant was convicted in the High Court of murder following the death of his wife, whom he assaulted after she returned home intoxicated in the early hours of the morning. The trial court found
that injuries inflicted during a domestic altercation led to her death from a traumatic subdural haematoma. The appellant did not testify but called defence witnesses, one of whom suggested the deceased had fallen. The High Court rejected the fall theory, relying on circumstantial evidence and post-mortem findings to convict the appellant of murder and sentence him to 29 years' imprisonment.
On appeal, the Crown conceded that the only live ground concerned the conviction for murder and the resultant sentence. The Court of Appeal found that although the appellant had assaulted the deceased, the trial court failed to address whether he had the requisite mens rea for murder, namely, direct intent or dolus eventualis. The Court held that while the actus reus was established, the evidence did not exclude the reasonable possibility that the appellant acted without intent to kill. His efforts to summon assistance and to transport the deceased to hospital were inconsistent with an intention to cause death.
Accordingly, the Court set aside the conviction for murder and substituted a conviction for culpable homicide in terms of section 41 of the Penal Code. The sentence of 29 years was also set aside and replaced with a sentence of 15 years’ imprisonment, five of which were suspended for 10 years on condition of good behaviour.
Held –
(1) A conviction for murder requires proof beyond reasonable doubt of both actus reus and mens rea; the trial court’s failure to consider the accused’s state of mind constituted a misdirection.
(2) Where the circumstantial evidence does not exclude the reasonable possibility of a lack of intent to kill, the proper conviction is culpable homicide.
(3) Sentence of 15 years imposed, five suspended for 10 years.
Appeal upheld in part. Conviction for murder substituted with culpable homicide. Sentence varied.
JUDGMENT
P.T. DAMASEB AJA
Introduction
[1] This appeal is concerned with the issue of whether the High Court (Hlaele J) correctly convicted the appellant (the accused) of
the crime of murder or whether she should have entered a conviction of culpable homicide. If the learned judge improperly convicted the accused of murder, the conviction is liable to be set aside – leaving this Court at large as to sentence.
[2] The accused was charged with the murder of his wife:
‘In that on or about the 21st day of May 2021 and at or near Ntholohetsane in the district of Mokhotlong, the said accused did perform an unlawful act or omission with the intention of causing the offence of Murder of the deceased ‘Malehase Noatsoane such death resulting from his act or omission, the said accused did thereby contravene the provisions of the code as aforesaid’’.
[3] According to the Penal Code Act 2010:
‘40. Murder
(1) Any person who performs any unlawful act or omission with the intention of causing the death of another person, commits the offence of murder if such death results from his or her act or omission.
[4] Section 10 of the Penal Code states:
‘A person who causes harm to the person or property of another or exposes others to a risk of injury or death through negligence or recklessness commits an offence’.
[5] The accused entered a plea of not guilty and after a trial at which he elected not to testify albeit that he called witnesses, he was found guilty as charged. The court a quo sentenced him to 29 years' direct imprisonment.
The High Court
[6] Based on a version recalled by witnesses both for the Crown and the accused - which is by and large are not disputed on appeal, the deceased wife came back to the matrimonial home around 4 a.m. She was dropped off at home by a vehicle. The appellant had tried many times to reach her the previous night but without success.
[7] The deceased wife was intoxicated when she came home. She was not able to account for her whereabouts the previous night. The probabilities found established by the trial judge are that on account of the deceased’s conduct, there was an altercation between the appellant and the deceased inside the matrimonial home. (The neighbours heard what appeared to be a quarrel inside the home of the accused and the deceased early that fateful morning).
[8] A broken lamp was found inside the bedroom as was a broken headboard door, and clothes strewn inside the house. From these circumstances the trial judge concluded that some altercation occurred between the duo inside their home. Neighbours next saw the duo emerge from the house and enter their vehicle and drive away.
Salient evidence
[9] I will recall some of the evidence as summarised by the trial judge.
[10] The case arose from the death of a woman who, on the morning in question, returned home late, leading to an altercation with her husband, the accused. Neighbours heard shouting around 4:00 a.m., and shortly after, the deceased was seen moving about, packing items into a vehicle. A broken lamp and damaged furniture in the home corroborated the occurrence of a physical altercation.
[11] Testimony established that the couple left their home in a vehicle shortly after the argument. The accused later claimed that the deceased fell either at the gate or later at a sandy spot in Ntlholohetsane. However, multiple police officers testified that the injury sites described by the accused were inconsistent with the serious injuries observed on the deceased, including a wound behind her ear and swelling to the head. The terrain at the purported fall site was not steep or rocky enough to cause such trauma. Witnesses who examined the scene found no blood or disturbance that would support the accused’s version.
[12] Crucially, by the time the accused’s relatives found the couple on a slope near Ntlholohetsane, the deceased was alive but unable to walk and was resting on the accused. She was taken to the hospital but later died. The court found that her injuries occurred during the time between her departure from home and this encounter.
[13] The post-mortem revealed she died from a traumatic subdural hematoma, consistent with a violent assault, not a fall. The court rejected the accused’s explanation and dismissed the suggestion, allegedly made by the deceased that she had fallen, as unreliable and potentially fabricated by a biased defence witness.
[14] Applying the principles from R v Blom,1 the court found that the only reasonable inference from the circumstantial evidence was that the accused had assaulted the deceased. The supposed alternatives—accidental fall or self-inflicted harm—were inconsistent with both the injuries and the physical evidence.
[15] That evidence placed the deceased with the appellant in the following circumstances as summarized by the trial judge:
[16] The court's analysis centers on the events that transpired in the early hours of the morning, during which the accused and the deceased had a confrontation. Credible witness testimony confirmed an altercation between the two around 04:00 a.m, likely triggered by the deceased’s late return to their shared residence. Physical evidence such as a broken lamp and headboard, and the presence of the deceased’s car loaded with clothes, supported the inference of a violent dispute. Witnesses observed the deceased walking and loading her belongings into her vehicle during this time, suggesting she was able-bodied at that stage.
1 R v Blom 1939 AD 188.
[17] The pair left the house shortly afterward, and although conflicting hearsay suggested they might have visited two different homes, the court dismissed this evidence as inadmissible, pointing out that only the deceased and the accused truly knew where they went. With the deceased unable to speak for herself and the accused exercising his right to silence, the court drew inferences from the remaining circumstantial evidence.
[18] Around an hour later, the accused sent a distress call to his sister, PW7, prompting her to rush to Ntlholohetsane. Witnesses DW1 and DW2 confirmed that the deceased was still alive upon being found and when she arrived at the hospital. However, at the scene, the deceased was no longer able to walk and had to be carried. This starkly contrasted with earlier observations of her walking unaided. The court found this shift significant, as it marked the likely moment at which the fatal injuries occurred.
[19] Medical evidence from the post-mortem confirmed a traumatic subdural hematoma likely caused by a blow to the frontal head. The court rejected the suggestion that the injury resulted from a fall, particularly as the terrain where the incident allegedly occurred did not match the severity or nature of the injuries. Crown witnesses disputed the fall theory, noting the absence of defensive wounds that would typically accompany such a fall and emphasizing the pattern of injuries as more consistent with being dragged and assaulted.
[20] Furthermore, inconsistencies were found in the testimony of DW2, who claimed the deceased had whispered that she had fallen. Her close familial relationship with the accused and her apparent lack of reliability during cross-examination weakened the credibility of her evidence.
[21] Ultimately, the court concluded that the injuries sustained by the deceased were the result of an assault, not an accidental fall. The only plausible inference, supported by the totality of the evidence and in line with the standard articulated in Blom,2 was that the accused inflicted the injuries that led to the deceased’s death. The possibility of any other reasonable inference was excluded by the strength and consistency of the circumstantial evidence.
[22] Based on the version he put in cross examination, the accounts by witnesses who had occasion to visit the places where the deceased allegedly fell, and the inspection in loco, the trial judge was satisfied that the injuries sustained by the deceased as recorded in the post-mortem report could not have occurred where the accused said they did and that the only reasonable inference was that they were inflicted by the accused.
[23] The court a quo said the following in respect of the choice the appellant made not to testify at the trial:
2 Blom, supra.
‘[8.4] Put differently, the accused’s silence is not an opportune moment to make a case for the crown. If the crown’s evidence lacks credibility, it cannot be credible by virtue of the accused’s silence. The accused should also be alive [to] the danger that absent his version, where the circumstantial evidence points towards his involvement in the crime, proving his guilt beyond reasonable doubt, his silence may prove to be disastrous.’
[24] The High Court concluded that:
a.
The evidence points towards the accused as the person who administered the injuries that led to the death of the deceased.
b.
The accused is guilty of murder as charged.
The appeal
[25] The accused lodged the following grounds of appeal:
‘The honourable court erred and or misdirected itself by drawing the following inferences without the consistent proved facts:
1.
a.
The broken lamp and the broken headboard door are possibly the victims of the altercation.
b.
The car never drove to any of the areas mentioned in evidence.
c.
The wounds on the deceased were as the result of an assault and being dragged (eighty) 80 paces.
2.
The honourable court erred and/misdirected itself by stretching the evidence of the post-mortem report in that the doctor concluded the injuries sustained by the deceased were consistent with assault.
3.
The Honourable Court erred and/misdirected itself by deciding that the wound behind the ear was as the result of an assault the deceased suffered from the appellant in the absence of evidence proving same.
4.
The Honourable Court erred and/misdirected itself by failing to give both parties the opportunity of making submissions and leading the evidence on the findings of inspection in loco.
5.
The Honourable Court erred and/misdirected itself by concluding that the proved facts exclude the inference of a fall and other reasonable inferences yet the proved facts and evidence did not exclude the possibility of a fall.
6.
The Honourable Court erred and/misdirected itself by finding the appellant guilty of murder yet the evidence at least proved culpable homicide.
7.
The Honourable Court erred and/misdirected itself by finding the appellant guilty of murder yet the evidence at least proved culpable homicide.
8.
The Honourable Court erred and/misdirected itself by sentencing the appellant to 29 years which is too harsh and grossly excessive when no exceptional circumstances were said to exist warranting such a sentence.’
Submissions
[26] The Crown supports the conviction and sentence. Although counsel for the accused initially argued all the grounds of appeal with great force, during discussion of the matter with the Court, he abandoned most of the grounds of appeal and stuck to only the ground that impugns the conviction for murder and the resultant sentence.
[27] In a very carefully reasoned judgment, Hlaele J found that the appellant caused the injuries to the deceased that led to her death. That finding is based not only on the inconsistencies in the appellant’s versions told to different people at different times, accounts given by his relatives, and the impartial evidence by police officers. Having carefully studied the judge’s conclusions against the record; I find no material misdirection that can displace the judge’s finding that the injuries that caused the death of the deceased were inflicted by the appellant. The accused’s concession is therefore properly made.
[28] The gravamen of the remaining ground of appeal is that although the evidence established beyond reasonable doubt that he assaulted the deceased and that the injuries he inflicted against her ultimately caused her death, it was not proved beyond a reasonable doubt that he intended to kill the deceased.
[29] Apart from the finding that ‘the proved facts exclude the inference of a fall’ and ‘other reasonable inferences…the state has proved the accused’s guilt beyond a reasonable doubt. There being no doubt cast upon the evidence led’.
[30] Regrettably, the learned judge a quo did not deal with the accused’s state of mind so as to satisfy herself that the actus reus of the assault was accompanied with the requisite mens rea for murder: either direct intent or dolus eventualis. That is a misdirection. The duty that rests on the prosecution is not only to
prove the actus reus (in this case the vicious assault) but also the guilty intent.
[31] Had the trial court, in relation to the accused’s state of mind, engaged in the same thorough inquiry she did to exclude the possibility that the deceased died other than at the hands of the accused, she would perforce have considered whether he lacked the mens rea for murder either as to direct intent or dolus eventualis.
[32] In that process, the prosecution bore the onus to prove that the accused assaulted the deceased with the intent required to sustain a charge of murder while the accused was entitled to the benefit of doubt that he acted with such intent. He bore no burden to prove that he did not act with the intent to kill and whatever doubt there existed should have been resolved in his favour.
[33] On the facts before the court a quo, all indications are that the appellant assaulted the deceased out of anger and jealousy. It appears on the evidence that the deceased was unable to assuage his suspicion of infidelity during the time she had been away from home. The deceased was still alive when she was found in his presence by a number of witnesses. The evidence suggests that he summoned help to take her to hospital so that she could be treated for the injuries he inflicted on her. As correctly submitted by counsel for the accused, an accused’s conduct subsequent to an unlawful act (such as an assault on another) can be evidence of his or her state of mind at the time of commission of an offence.
[34] As Adv. Motsoehli for the accused submitted, the proven facts do not establish beyond reasonable doubt that the appellant assaulted the deceased with the intent to kill her: he made as many people as possible aware of what had happened to the deceased, including relatives of the deceased who in all likelihood would not be favourably disposed to him for the revelation he made. He also took steps to secure the deceased medical assistance after the assault. He was entitled to the benefit of the doubt that he did not assault her with the intent to kill her.
[35] Culpable homicide was a competent verdict on a charge of murder which should have been properly considered and only excluded based on very convincing reasons.
[36] In terms of s 41 of the Penal Code:
‘(1) A person commits the offence of culpable homicide if he or she causes death of another person through a criminally negligent act or omission.
(2) An act or omission shall be deemed to be criminally negligent if it involves a risk of serious harm to another, and the risk would have been apparent to a reasonable person.’
[37] I come to the conclusion that the accused was entitled to the benefit of the doubt that the assault on the deceased was not with the intent to kill but in circumstances as are contemplated in s 41 of the penal Code. That is the verdict that the High Court should have entered. That leaves us at large as to the sentence.
[38] All the mitigating and aggravating circumstances were led before the learned judge and that makes it possible for this Court to consider the appropriate sentence afresh.
[39] As the judge a quo aptly observed, the scourge of gender-based violence ceases to abate and should be treated with appropriate seriousness by the courts. In mitigation, it is to be stated that the accused’s better judgment was affected by what clearly appears to be the infidelity of the deceased wife.
[40] A condign sentence in my view is to impose a lengthy term of imprisonment but to suspend a part of it to serve as a Sword of Damocles over his head.
Sentence
1.
I accordingly impose a sentence of fifteen (15) years imprisonment of which five years is suspended for a period of 10 years on condition that the accused is not convicted of culpable homicide or murder during the period of suspension.
_______________________________________
P. T DAMASEB
ACTING JUSTICE OF APPEAL
I agree:
––––––––––––––––––––––––––––––––––––––
K. E MOSITO
PRESIDENT OF THE COURT OF APPEAL
I agree:
____________________________________
M CHINHENGO
ACTING JUSTICE OF APPEAL
FOR APPELLANT: ADV L. MOTSOEHLI
FOR RESPONDENTS: ADV L.M MOFILIKOANE