Rex V Moji (CRI/T/125/2012) [2023] LSHC 101 (19 May 2023)

 

 

 

IN THE HIGH COURT OF LESOTHO

 

HELD AT MASERU                                                CRI/T/125/2012

 

In the matter between

REX                                                                                                                                                                                                                                                

AND 

 

THAPELO MOJI                                                                      ACCUSED                                                                                    

 

Neutral Citation: Rex v Thapelo Moji [2022] LSHC 101 Cri (19 May 2023)

 

CORAM                :         HLAELE J.

HEARD                :         13^th FEBRUARY 2023

DELIVERED        :         19^th May 2023

 

SUMMARY: Confessions. The conviction of an accused based on the accused’s confession and other evidence aliunde.

 

 

 

 

ANNOTATIONS:

CITED CASES:

1. Ibrahim v Rex 1914 AC 599 at 610
2. S V De Vries 1989 (i) SA 22p at 233H.
3. State v M 1963 (1) PH.H 88 at page 21
4. Wong Kamming vs The Queen (1980) AC 247at 261 B – C
5. R v Ramosoeu and Others (CRI/T/169/2004) [07 Apr 2006] LSHC 91
6. R. v Mtabela 1958(1) S.A. 264 at pp. 268 et & seg
7. Chitambala v The Queen 1961 R & N 166 (FSC) at 169 – 17
8. S v Dube (CC03/22) [2022] ZAMPMBHC 28 (3 May 2022)
9. S v Pistorius 2016 (1) SACR 431 (SCA),
10. Malefetsane Phala Mabope and Others v Rex 1993/1994 Lesotho Law

Report 154

11. Rex v Moalosi Mokake (Cri/T/1/82) [1983} LSCA 28 (11April 1983)
12. S v Dlamini 1973 (1) SA 144
13. S v Biyana 1938 EDL 310.
14. R. v. Fundakubi and Others 1948(3) S.A. 810.
15. S v Zinn 1969 (2) SA 537

 

STATUTES

1. Criminal Procedure and Evidence Act,1981

 

 

 

 

 

 

 

JUDGMENT

 

HLAELE J

[1] INTRODUCTION

1.1 The accused was charged as follows:

COUNT 1

THAT:

        THAPELO MOJI a m/m aged about 27 years of H/m Lerotholi

        Letsie u/c Lerotholi Ramosoeu Nkuebe at Ha-Mohapi sekolong         Quthing.

 

(HEREINAFTER CALLED THE ACCUSED IS GUILTY OF THE CRIME OF MURDER)

In that upon or about the 28^th day of June 2011 and at or near Cocobe, in the district of Quthing, the said accused did unlawfully and intentionally kill one ‘MAMOLIBELI FOKOTSANA.

COUNT II

THAT:

        THAPELO MOJI a m/m aged about 27 years of H/m Lerotholi

        Letsie u/c Lerotholi Ramosoeu Nkuebe at Ha-Mohapi sekolong         Quthing.

 

(HEREINAFTER CALLED THE ACCUSED IS GUILTY OF THE CRIME OF ROBBERY)

In that upon or about the 28^th day of June 2011 and at or near Cocobe in the district of Quthing, the said accused did unlawfully and with intention of inducing submission by the said Mamolibeli Fokotsane to the taking by the said accused of M267.00, N70 Nokia cellphone, kid, perfume, pair of trousers and threaten the said Mamolibeli Fokotsane that, unless she consented to the taking by the accused of the said property or refrained from offering any resistance to him in taking the said property, he would then and there kill her and did then and thereupon take and steal from the person of the said Mamolibeli Fokotsane or in his lawful possession and did rob her at the same time.

 

[2] TRIAL WITHIN A TRIAL

2.1 The accused objected that the statement he made as a confession was not freely and voluntarily made and as a result the court had to engage in a trial within a trial.

2.2 Four witnesses were called to give evidence. From the evidence tendered, the court had to decide whether the confession was proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto.[1]

In S v de Vries[2] the position was stated as follows:

 

It is accordingly essential that the issue of voluntariness
should be kept clearly distinct from the issue of guilt. This is achieved by insulating the enquiry into voluntariness in a compartment separate from the main trial.

 

2.3 It is trite law that at the stage of a trial-within-trial the court is not concerned with the truth of the confession but rather its voluntariness.[3]  The consequences of a ruling by a court that the statement of confession is not freely and voluntarily made has dire consequences for the case of the prosecution. This was captured in the case of State v M [4]. The court stated the legal position of the trial within a trial that takes place before a confession is admitted as thus:

 

"I might add, that the fact that the statement made by the
accused is his own version of the affair and that the facts contained in his statement might be true in the sense that he might indeed have truthfully admitted that he committed this offence, is not relevant to the question sets its face against confessions not freely and voluntarily made, should be maintained even if it be so maintained at the expense
of sometimes allowing a criminal to escape just punishment for a terrible crime. The confession will not be admitted."

 

2.4 With this in mind, this court heard and analysed the evidence of the witnesses called by both parties to prove the voluntariness or otherwise of the confession allegedly made by the accused.

2.5 In order to substantiate the allegation that the confession was made freely, voluntarily and without undue influence, the crown called the evidence of two of the investigating officers.  These were P/C Rants’eli and P/C Mohale.

2.6 The evidence of P/C Rants’eli was to the effect that they effected the arrest on the accused following a report of the murder of the deceased. They were led to the accused by the cellphone which belonged to the deceased which had coincidentally disappeared on the day of the murder of the deceased. Their investigations led them to the accused.  He continued that when they got to Quthing Police station, they warned and cautioned him informing him that he was arrested in connection with the death of ’Mamolibeli Fokotsane. It was then that the accused gave an explanation of what had occurred on the fateful day which resulted in the death of the deceased.

2.7 He then hand recorded this explanation in the form of a statement. This statement was recorded on the date of the arrest which was on the 20^th July 2011. This day is reflected on the cell register which was handed in as evidence. The register reflected that the accused was admitted into the cells on the 20^th July 2011 at 18:30. The witness continued to testify that he asked the accused whether he would be averse to having the statement being recorded before a magistrate to which the accused informed him that he has no objection or reservations.

2.8 The cross examination of this witness focused on discrediting his version by putting to him the version of the accused which essentially was to the effect that this witness together with 7 of his colleagues had engaged in acts of physical assault which resulted in the accused making this confession. These assaults included being taken to Seaka bridge in Quthing where the assaults and torture continued mercilessly since there were no hearing ears on sight. The time was after midnight. Rantšeli’s standard response to the version of the accused that was put to him was that the version in totality, especially where it related to assaults and torture were fabrication.

2.9 He was resolute that the confession was made by the accused freely and voluntarily. Further that it was made by the accused in his sober senses and without any promise of gain.

2.10 The evidence of PW2 Seargent Mohale was similar in most relevant respects to that of PW1. It corroborated it. The cross examination also focused on putting the version of the accused which the witness referred to as a fabrication.

2.11 PW3 in the trial within a trial was David Joachim Rasoeu. He stated that he was a correctional officer in 2011. His evidence was crucial in that the accused had indicated in his version that was put to PW1 and PW2 that it was this officer who had assisted him by taking him to a medical doctor before he was admitted to the correctional facility after his remand.

2.12 More evidence placed before the court to suggest the involuntariness of the confession, was that it had been suggested that this Correctional Services officer had taken the accused to see a doctor after the accused had made a request that he had been assaulted and thus needed medical attention. However, the evidence of this retired warden proved that this could not be so both factually and procedurally. He alluded to the fact that procedurally, correctional services officers would never accept an inmate into their facility if there was even a suspicion that he was assaulted before he was handed over to them. He said that a thorough examination is made before one is admitted to the correctional facility to confirm that there are no markings of an assault.  He thus could not have, as suggested by the accused, taken the accused to the doctor if he had markings before admission. Because taking him with marks of assault with pre-suppose that he is already in their custody.

 

2.13 Secondly, the suggestion was factually impossible because on the day that it was suggested that he took the accused for medical attention, he was not on duty. No amount of cross-examination moved this witness to change his stance. I found this witness to be a credible witness. He articulated the procedures involved in accepting a new inmate eloquently. He was unshaken in his denial when cross examination suggested that it was him personally who took the accused to the hospital. He stated that further proof that it wasn’t him was that on his off-duty days, he would go to his home in Mohale’s Hoek some 50km from Quthing where he worked. He thus would be nowhere near the correctional facility on the fateful day when it was alleged that he probably possibly was called to assist despite being off duty.

 

2.14 The confession was recorded before Magistrate BOKANG MAKHAKETSO. His evidence was to the effect that after the clerks of court brought the accused before him, he administered the confession by adhering to the standard form designed for confession. This form guides the magistrate through a set of questions which are intended to extract from a suspect, issues pertaining to voluntariness of the confession and also the question of any promise of gain from the prospective confession such a suspect is about to make. It was the evidence of this witness that the accused answered the questions in a manner that made it clear that the confession he was about to make was indeed voluntary. The accused then narrated the events in his own words, and he reduced the narration to writing. He said that the accused did not have any visible injuries that could be observed by the naked eye.  

2.15 The cross examination of PW4 by accused’s counsel Mr. Masiphole attempted to indicate that aside from the standard questions on the form, it was PW4’s duty to examine the accused and ascertain that there was nothing visible to the naked eye that suggested that the accused had been assaulted. To this line of questioning, this witness cogently informed the court that there were no visible marks neither could he observe the gait of the accused because the size of his small office gave no such allowance.

After this witness the crown closed its case.

 

2.16 The accused took the stand to prove that he made the statement involuntarily. He reiterated the version that his counsel had put to the crown witnesses. He also added to this version other aspects of the arrest. These aspects were never put to crown’s witnesses. Such evidence included that PW2 promised him a lenient sentence in the event that he made a confession. This was not put to PW2 or even PW4 who would confirm or deny the truthfulness whether the confession was made as a result of a carrot being dangled before the accused enticing him to confess. Other statements that he said in his evidence in chief that were not put to the crown witnesses were that the pants he allegedly took from the deceased’s home could not be true as the owner of those pants was of a smaller size than him. He admitted that this version was not put to crown witnesses.

2.17 He insisted that the assaults took place, and this has resulted in the permanent injury of his manhood. The accused was however unable to exhibit any documentary proof of these injuries, despite his undertaking through his counsel to do so. This is contrary to the evidence of the crown which was accompanied by the documentary proof. Also, the accused insisted that he was not arrested on the 20^th July 2011 despite stark documentary evidence (exhibit B) that he was indeed arrested on that date at 18:30pm.

2.18 The accused was a shifty witness. Prone to denying the obvious. For instance, he testified that since the magistrate read part of the confession question in English whilst giving evidence, he did not understand what had been said. Mr. Masiphole displayed diligent professionalism which indicated that he was an honourable member of the profession by informing the court that he narrated all that took place in court to the accused and sought his input(instructions) before he cross examined PW4. The accused was also quick to utter inconsistent statements. The question is, is his version reasonably probably true? Did he cast a reasonable doubt on the version of the crown? This entails discharging the evidential burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. I am of the view that the evidence of the accused failed to discharge this evidential proof. While the onus to prove that the confession of the accused was freely and voluntarily made remains with the crown throughout the case, the evidential burden shifts in accordance with rebutting the evidence placed before the court.

2.19 The accused failed to exhibit the hospital booklet that would demonstrate the injuries he said he sustained from the assaults he sustained in police custody. No marks were seen on him by either the magistrate or the correctional facility officer. He also testified that it was at the correctional facility that markings on his wrists were discovered. He insisted that PW3 took him to the hospital nearby. The court however, accepts the procedure outlined by PW3 that they do not accept injured inmates.

2.20 Having heard all the evidence, I relied on the law to make a ruling on the admissibility of the confession made by the accused.

 

[3] THE LAW ON CONFESSIONS

3.1 Section 228 of the Criminal Procedure and Evidence Act (CP&E) reads:

1. Any confession of the commission of any offence shall, if such confession is proved by competent evidence to have been made by any person accused of such offence(whether before or after his apprehension  and whether in a judicial examination or after commitment and whether reduced into writing or not), be admissible in evidence against such person provided the confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto.

3.2 The Privy Council case of Wong Kamming vs The Queen[5] (1980) AC 247at 261 B – C gave the following direction;

"... any civilized system of criminal jurisprudence must accord to the judiciary some means of excluding confessions or admissions obtained by improper methods. This is not only because of the potential unreliability of such statements, but also, and perhaps mainly, because in a civilized society it is vital that persons in custody or charged with offences should not be subjected to ill treatment or improper pressure in order to extract confessions. It is therefore of very great importance that the courts should continue to insist that before extra-judicial statements can be admitted in evidence the prosecution must be made to prove beyond reasonable doubt that the statement was not obtained in a manner which should be reprobated and was therefore in the truest sense voluntary. For this reason, it is necessary that the defendant should be able and feel free either by his own testimony or by other means to challenge the voluntary character of the tendered statement."

 

3.3 In the case of R v Ramosoeu[6] it was stated that

It is the cardinal rule of our law that the onus rests on the State to prove beyond a reasonable doubt as a prerequisite of the confession's admissibility in evidence, that it was voluntarily made by the accused in his sound and sober senses and without the accused having been duly influenced thereto.

 

3.4 I have earlier hereto alluded to my observation of the accused as a shifty and untruthful witness. This however does not in anyway exonerate the crown form making its case. Meaning that even if the accused lied in his evidence, or even if the court found his evidence to be probably reasonably untrue, the onus still rests on the crown to make out its case. For this I rely on the cases of Rex v moalosi Mokake [7] where Cotran J said:

 

Unfortunately for the Crown, in question for confessions, it is not sufficient for it to demonstrate that the accused is a/liar, -6- liar, it must go further and persuade me, not on balance of probabilities, but beyond reasonable doubt, that the accused’s confession was free and voluntary (R. v Nhleho 1960 (4) SA 712). And as we said in this High Court, time and time again, the fact that the police have in their possession a confession is not per se the be all and the end all the matter.

 

3.5 Equally in this matter, my decision is based on whether the evidence of the crown has discharged the onus of proof. I found it unlikely that a correctional office wader would take into custody, an inmate who has visible marks. It is therefore unlikely that such warden would accompany one whom he has not admitted to their custody, to see a medical professional. I believe the reason the prison authorities do not accept into their custody an inmate who displays marks of assault or physical unfitness could possibly be to escape delictual liability for acts that they are not responsible for. Also, to incur medical expenses on their meagre budget. I am also persuaded by the fact that the magistrate, trained in taking confession, had administrated the confession having in mind the suspicion of torture and thus make a naked eye examination to see any visible markings. I do not think that he is expected to undress as accused person, more so where such accused does not raise a flag either in his speech or demeanor.

I have also taken into consideration the caution raised in the case of S v Dlamini[8] and incorporated it in the analysis of evidence.

 

3.5 From the evidence cited above, marrying the same to the authorities cited, and the analysis thereof, I am convinced that the confession was voluntarily made. I find solidarity in the remarks of Ogilvie Thompson, A.J.A.  where he once observed that;

"It is a relatively common occurrence for an accused to seek at
his trial to resile from a confession by making allegations that he
was assaulted or otherwise unduly influenced; and such allegations
are often wholly unfounded."[9]

 

3.6 I therefore find that the confession was freely and voluntarily made by the accused in his sound and sober senses. That there was no promise of gain or favour that influenced him to make the confession that he made. I also find that the pointing out made by the accused was admissible on the same grounds.

 

 

 

 

[4] THE MAIN TRIAL.

4.1 As soon as accused's confession and pointing out were held to be admissible evidence, we entered into the main trial. In the main trial the defense admitted all the crown's witnesses’ statements. Therefore, all the crown's witnesses' statements and reports were read into the record in terms of section 273 of CP&E.

4.2 After the recording of the statements, the crown closed its case. The defence in turn closed its case without leading any evidence.

 

[5] THE STATEMENT OF CONFESSION.

5.1 The first document to be read into the record was Exhibit A which was the accused's confession. The confession was taken by Magistrate Bokang Makhaketso and was taken on the 22^nd July 2011 and signed by the accused. The confession stated that;

On the 28^th June 2011 the accused arrived at the deceased's house at Cocobe. As somebody who had raised him (accused) at Qomoqomong, he had gone to her to borrow transport money to Mohale's Hoek. The deceased told him she did not have such money. Then the accused asked for some water to drink. As soon as the deceased went to fetch the water for the accused, he strangled her with his left hand and with the right hand he placed a knife on her neck to scare her.  As a result of fear, the deceased told him that she had M100.00 in her handbag which was in the bedroom. All these happened in the kitchen. Then he led the deceased to the bedroom whereat whilst still strangling her he fastened her hands on her back with a shoe lace. To keep her from making noise he gauged her with a pantyhose which she had covered her head with. He then went to search the bag which the deceased had said she had money in. The deceased then started struggling to run away but she hit the bathing dish which was in the bedroom and spilled the bath water. They then started fighting and the deceased tried to run to free herself from him. She passed along the passage and went into the sitting room. She broke the sitting room door as she tried to flee as well as calling people for help. The accused at that point pushed the deceased to the floor and stood on deceased's shoulders with his knees. When the deceased tried to scream, he stabbed her in the mouth with the knife. She was then no longer able to scream, and she seemed to be dying. He then thought she had just fainted, so he sliced her a little on the neck to see whether she was still alive. He noticed that she was indeed dead. He did all this in order to hide evidence. He then left the sitting room and went into the bedroom where he found M100.00 in the deceased's bag. He found another M100.00 inside a jacket which was hanged on the wall. He also took the coins he found on the dressing table and they amounted to M67.00. Since the trouser he was wearing was bloody, he took it off and worn the deceased's son trouser which he found in the bedroom. He also took her son's schoolbag and put buns and perfume inside it. He took the deceased's phone as well. He left the house at around 13:15 hrs. All these items he surrendered to the police together with his shoes so that the police could examine whether the shoe lace which was found on the deceased was from those shoes.

 

[6] THE STATEMENT OF TSÉLISO MATHIBELI

6.1 The second statement to be read into the record was that of Tšeliso Mathibeli and was handed in and marked exhibit BB. It read as follows:

On Thursday the 21^st July 2011 he was called by his sister 'Mamalebanye Malebanye to go to her place and he did. On arrival she directed him to accompany the Quthing police to Thapelo Moji's home where they were going to search. Upon their arrival at Thapelo Moji’s home, in his (Tšeliso's) presence the accused took out a black and red bag, a perfume container, two pairs of shoes and a kitchen knife. Thereafter the police went away with the accused as well as the items he had pointed out. The significance of this evidence is that it corroborates that the pointing out took place voluntarily. The admission of this statement by the accused means that he accepts that the items that were identified by the deceased’s son were pointed out by him. I rely in this regard to section 229 of the CP&E. I also take cognizance of the ruling in Mabope and Others v Rex[10] that the pointing out should be freely and voluntarily made. I indeed find that the evidence of this witness points towards that. It does not in any manner indicate that the accused displayed any discomfort or mannerism that this witness could construe as indicating a sense of forced pointing out. That being the case, I conclude that the pointing out was voluntarily made. 

 

[7] THE STATEMENT OF MOTLALEPULA THENE

7.1 The next statement that was read was that of Motlalepula Thene. It was marked exhibit CC. In effect what Thene showed in his statement is that he knew one Thapelo (accused) though he did not know his surname. He knew Thapelo from a bar in Selibeng Mohale's Hoek. On the 1^st July 2011 Thene was at a shop in Selibeng when accused approached him and indicated to him that he was selling a phone. He showed him the phone which was a Nokia phone. Thene informed the accused that he still had a phone so he would help him look for a buyer. He later met one Katiso Mosoeunyane and told him about the phone which accused was selling. He took Katiso to accused's home and left them discussing the sale of that phone. Days later he met Katiso who told him that he managed to buy the phone from the accused. The essence of this evidence is that it captures the journey of the phone of the deceased and how it relates to the accused. More will be said about this, safe to record at this stage that the value of this evidence solves the labyrinth of the phone that went missing which belonged to the deceased. The phone is seen in this case as the peace of a jigsaw puzzle that completes the picture which had formally been a rubble of small unconnected pieces.

 

[8] THE STATEMENT OF KATISO MOSOEUNYANE

8.1 The next statement to be read was that of Katiso Mosoeunyane whose statement corroborated that of Motlalepula Thene on the allegation that the accused is the one who sold the phone. His statement read that on the 30^th June 2011 he met one Motlalepula Thene who he knew well and Motlalepula told him that there was somebody who was selling a phone for M400.00. He showed interest in buying the phone and the next day Motlalepula took him to the person who was selling the phone. When they met with the person who was selling the phone, he heard that he was Thapelo Moji (accused). Then the accused explained to him that he bought the phone at Quthing and he forgot its password for he was drunk at the time when he bought it. The following day the accused told him that he remembered the password and he would sell it to him for M300.00. Katiso gave accused M300.00 and he in turn gave him the phone. The phone was a black Nokia N70 and had a little scratch on it. When he got home, he gave the phone to his brother Hlahane Serame. As has been said, the phone formed a crucial piece of evidence in this case. These witnesses unravel how it connects to the crime scene.

 

[9] THE STATEMENT OF HLAHANE SERAME

9.1 The next statement was that of Hlahane Serame whose statement read that on Saturday of the 2^nd  July 2011 he left Welkom where his father works to Mohlakeng Mohale's Hoek at his grandmother's place. Katiso approached him there and gave him a Nokia N70 phone which he informed him he bought with the money which was given to him by their mother. He accepted the phone and inserted a Vodacom Simcard. On the 17^th July he left Lesotho to Bloemfontein where he attended school. On the 20^th July his mother called him on the phone to inform him to bring back the phone as the police were looking for it. He then came back to Lesotho and handed it over to Quthing Police in the company of Katiso.

The scattered pieces of the jigsaw comes together.

 

[10] THE STATEMENT OF MOLIBELI FOKOTSAME

10.1 The statement of Molibeli Fokotsane who is the deceased's son was also read into record and it read as follows:

That on the 21^st July 2011 at around 16:30hrs he went to Quthing police station to identify the items which went missing from his home and were discovered at Thapelo Moji’s home. The items were as follows:

1. A black Nokia N70 phone which he identified by a scratch on its cover,
2. his black school bag and a Bella perfume which his mother used.
3. his brown trouser

When he arrived home that day, he observed some more of the items which were missing at his home and those items were his school books which were in his school bag. These items were not among those he had found at the police station.

10.2 This statement, read together with that of Ts'eliso Mathibeli. Whilst Tseliso was present at the pointing out and witnessed the items being taken out by the accused, the son of the deceased confirms that indeed these are the items that went missing at his home after the death of his mother. Thus, the pointing out is corroborated.

 

[11] THE STATEMENT OF MOLAHLOA KHESA

11.1 The statement of Molahloa Khesa was also read into record and it stated thus:

On the 29th June 2011 around 18:00hrs as was usual, he went to fetch the deceased to convey her to her workplace at Quthing Hospital. When he arrived at deceased's home, he found one Mothofela Phats'oane who had brought 4+1 money to the deceased. He had not yet entered the house and was surprised that the house was not yet lit. They together went into the house as the deceased did not answer her phone when he tried calling her phone. They found the door open and they entered and lit in the kitchen. They went through to the passage and lit the passage light. He peeped into the sitting room and discovered the thighs of a person who was lying supine. They then discovered that the person was the deceased Mamolibeli Fokotsane. Thereafter he went to the police station to report the incident. He took the police to the deceased's house where the deceased was declared dead by the police and was taken to the mortuary. On the evening of that day the deceased's son Molibeli found a big knife inside the blankets over the bed and he took it to the police station.

[12] THE STATEMENT OF MONAHENG FOKOTSANE

12.1 The identifying statement of Monaheng Fokotsane marked exhibit KK was also read and he stated as follows:

That on the 6^th July 2011 he went to Queen II Hospital where he handed over the corpse of the deceased who was his daughter in law for examination by a doctor. He identified the corpse as being that of Mamolibeli Fokotsane (the deceased) and he handed the corpse over to the doctor.

 

[13] THE STATEMENT OF NO. 10435 D/PC MOHALE

13.1 The next admission was the report of No. 10435 D/PC Mohale of Quthing Police Station who reported that on the 29^th June 2011 his office received a report of a case of murder of one 'Mamolibeli Fokotsane. A Nokia N70 phone was reported missing from that incident. His office thereby commenced investigations in this case whereby he made an application to Quthing Magistrate Court to issue a court order compelling Vodacom Lesotho to release to him a print out of the deceased's cell phone. The court order was issued and following the lead of the print-out him together with one police woman Sechele and PW1 in the trial within a trial proceeded to Mohale's Hoek where they met one Likopo who led them to one Katiso Serame. Katiso Serame then led them to Motlalepula Thene. Katiso and Motlallepula led them to Thapelo Moji (accused). They proceeded to the accused and introduced themselves to him and informed him they were tracing a cell phone. The accused told them that he sold a black Nokia Cell phone and that it belonged to the deceased. He explained that he stole the phone from the deceased's house after he (accused) killed her and robbed her of M100.00 at knife point. He further told him that after killing her he looked for money in the house and found about M167 which he stole. He went further to tell him that he left the deceased fastened with a shoe lace on both hands and that he left his light blue Jean trouser which was stained in blood in the deceased's house. He also told him he stole a perfume as well as a brown side pockets trouser. On the 21^st July 2011 the accused led them to Mohale's Hoek where he resided to point-out a knife which he used to stab the deceased. In his mother's presence he pointed a butcher brown plank handled knife, a black and red adidas school bag, a red and orange Bella perfume container and a toney red pair of shoes. The pair of shoes had different laces, one matching the shoe lace found at the scene of crime while the other matched his other Grey and light brown pair of shoes. He seized all these items as exhibits after cautioning him. He then gave him a charge of murder and arrested him. He filled LMPS 12 with the particulars of the exhibits and produced them before a Clerk of Court. The LMPS 12 was handed in this court and marked exhibit FF3. It was alleged by D/PC Mohale that all the items which were pointed out by the accused including the phone could not be exhibited in court since they were missing from the police storage where exhibits are normally kept.

13.2 The post-mortem report was also exhibited and marked exhibit LL. It showed the cause of death as severe blood loss from the wound on the neck.

The Crown then closed its case. The defense closed its case without leading any evidence.

 

[14] THE EVIDENCE TENDERED BY THE ACCUSED IN THE TRIAL WITHIN A TRAIL NOT TO BE USED IN THE MAIN TRIAL

 

14.1 It is imperative for this court to state that it has advised itself and has not in any way transported the evidence that was made during the trial within a trial to the main trial. This means that evidence given by an accused during the trial within the trial will be disregarded when the issue of guilt comes to be considered. The purpose of the trial within a trial was not to determine the guilt or other wise of the accuse, but rather to determine the admissibility of the confession. Thus, the evidence tendered in that platform cannot be considered in the determination of his guilt.

In Chitambala v The Queen[11] Claydon ACJ said in a passage quoted with approval in Wong Kamming (supra) at 257 F:

 

In any criminal trial the accused has the right to elect not to give evidence at the conclusion of the Crown case. To regard evidence given by him on the question of admissibility as evidence in the trial itself would mean either that he must be deprived of that right if he wishes properly to contest the admissibility of a statement, or that, to preserve that right, he must abandon another right in a fair trial, the right to prevent inadmissible statements being led in evidence against him ... To me it seems clear that deprivation of rights in this manner, and the changing of a trial of admissibility into a full investigation of the merits, cannot be part of a fair criminal trial.

 

[15] ANALYSIS OF THE CASE

15.1 I now turn to deal with the question whether the crown has proved the charge of murder and robbery beyond reasonable doubt. Arguing that the crown had failed to prove its case, Adv Masiphole submitted that the confession admitted by the court is not a confession to the commission of the crime. His argument was premised on the fact that the accused lacked mens rea to commit the crime as his confession indicated.  For this submission he relied on the wording of the confession more specifically the statement of the accused that he placed the knife on the neck of the deceased to scare her and that he did not cut deep. This he argued, was a clear demonstration of a lack of intention to kill. Had the accused confessed to the murder, his statement would state so categorically. This was the defence of accused. That his guilty cannot emanate from his confession because it (the confession) did not point to men’s rea. That on the contrary. It showed that the intention was merely to scare the deceased and not to kill her. No refence was offered to the committing of the crime of robbery.

15.2 To this proposition the crown argued that there is evidence aliunde beside the confession that the accused committed the crimes. Adv Joala for the crown directed the court to other evidence before the court that pointed towards all elements of the crime. He pointed towards the pointing out and combined this evidence with the evidence of Molibeli Fokotsane who is the son of the deceased. He identified the objects which the accused had pointed out to the police. He confirmed that indeed these were household goods that belonged to his family. He carried on with this argument and submitted that the telephone which had been traced and tracked to the accused was that which belonged to the deceased, and which had disappeared on the date of the murder. The evidence of Motlalepula Thene and Katiso Mosoeunyane pointed towards the accused as the person who had commenced the chain of sale there being no other person identified as the seller. It will be recalled that all the admitted evidence was not rebutted since the accused did not take the stand. It has already been indicated that this court cannot rely on the evidence of the accused during the trial within a trial.

The proven facts of this case are the following

1. From the confession, that the accused is the one who entered the house of the deceased and slit her throat with a knife, confessing to be the person who caused the cut on the neck of the deceased.

 

2.  The confession and the statement of the accused confirm that the accused not only slit the throat of the deceased he also stabbed her with a knife on the throat.

 

 

3.  The phone which belonged to the deceased which went missing since her murder was tracked and traced to the accused. (Statement of Molibeli Fokotsane) “exhibit GG.” This was corroborated by the statement of Motlalepula Thene (Exhibit CC) and the statement of Katiso Mosoeunyane. (Exhibit DD). Also, the statement of Hlahane Serame. (Exhibit EE).

 

4. The items which the deceased pointed out to the police investigating the crime as the ones he took from deceased’s home were found at his home where he normally resided.

 

 

5. The son of the deceased corroborated the pointing out in that he confirmed that indeed the items pointed out belonged to his home. (Statement of Tseliso Mathibeli “Exhibit BB”).

 

6. The cause of death as reported in the post mortem report is consistent with the injuries that could be caused by the accused’s actions as outlined in the confession statement.

 

 

7. The death of the deceased was not only confirmed by Monaheng Fokotsane who identified her, but also the investigating officers and the taxi driver who had come to ferry her to work.

15.3 The confession is therefore not the only evidence available to this court to assist in making a determination to the guilt or otherwise of the accused. There is other evidence aliunde that points towards his guilt.

 

[16] CONCLUSION

16.1 I find that the accused had dolus directus in respect of the commission of this crime. The court in S v Dube[12] defined and described dolus directus in murder and robbery cases as a situation where the accused directs his will to causing the death of the deceased.  He means to kill.  There is in such event an actual intention to kill.

16.2 Equally in S v Pistorius[13], the Court articulated the concept of dolus eventualis and compared the same with dolus directus in murder cases in the following manner:

“In cases of murder, there are principally two forms of dolus which arise: dolus directus and dolus eventualis. These terms are nothing more than labels used by lawyers to connote a particular form of intention on the part of a person who commits a criminal act. In the case of murder, a person acts with dolus directus if he or she committed the offence with the object and purpose of killing the deceased”.

16.3 Suffice to say, intention in all of its forms (dolus directus, dolus indirectus and dolus eventualis) involves the perpetrator’s state of mind before and while the criminal act is being committed. Dolus directus does not necessarily require planning and premeditation. Deliberate, goal directed conduct does not necessarily have to be planned over a period of time. From the evidence tendered before court, the accused entered the house of the deceased uninvited and used pantyhose to muffle sounds from her. Used a knife to slit her throat, used a swordlike weapon to stab her in the mouth, ensuring that she indeed had died, all points out towards a direct intention to kill. I also take into consideration the tying of her wrists with laces. Blocking her when she tried to break the window in order either to escape or raise alarm.  All these point towards a direct intention to kill.

16.4 Equally the intension to rob is demonstrated in his assaults and taking property of the deceased.

16.5 The actus reus is constituted by the act of stabbing, the slitting of the throat and the ensuring that all his acts resulted in death. The removing of the property, the taking of the cell phone and other items talk to the robbery actus reus.

16.6 All the elements of the crime of murder as outlined in section 40 of the penal code are present in the actions of the accused during the fateful day.

 

16.7 From the totality of the evidence placed before this court I find that the Crown has proved the guilt of the accused on both counts beyond reasonable doubt. I therefore find the accused guilty as charged.

 

16.6 This being a crime of murder I invite counsel to present extenuating factors in terms of section 296 of the CP&E. Counsel will also then make submissions on mitigating and aggravating circumstances. 

 

 

[17] EXTENUATING CIRCUMSTANCES

17.1 Counsel representing both parties were invited to submit extenuating circumstances.

17.2 On behalf of the accused, Adv Masiphole submitted that the accused at the time of the commission of the crime was a young man. He also said that the crime was not premeditated.

17.3 Adv Joala conceded that indeed there existed extenuating circumstance and affirmed that the ones listed by adv Masiphole were indeed what he also had in mind.

17.4 On the issue of mitigating factors Adv Masiphole submitted that the accused was a first offender, that he was young, that he assisted his mother with household finances whilst he was employed. He also factored in the issue of his age to mitigate the sentence. He also argued in line with the argument concerned with the standards of behaviour of an ordinary (not a reasonable) person of the class of the community to which the convicted person belongs. In this regard he said that the accused is a rural simpleton.

17.5 When aggravating the sentence, Adv Joala provided that murder on its own is a gruesome crime. In the accused’s case, the cruel and callous manner in which the deceased suffered a merciless death in the hands of the accused aggravated the situation.

17.6 He also said that from the murder, a child was orphaned. The accused deprived a boy of the love of a parent.  A husband was deprived of a wife. The community was also deprived of a health worker.

17.7 He listed the purposes of sentencing and submitted that the reformation of an offence should go hand in hand with deterrence and a retribution.

 

 

 

[18] THE LAW

18.1 I am enjoined by S.296 of the Criminal Procedure and Evidence Act 1981 to state factors, if any, that tend to reduce the moral blameworthiness of accused's act.

 

The case of Rex v Biyana[14] has given the definition of extenuating circumstance as follows:

 

“It is a fact associated with a crime which serves in the mind of reasonable men to diminish morally, albeit not legally, the degree of a prisoner’s guilt.

 

18.2 As Schreiner, J.A. once put it in R. v. Fundakubi and Others[15],  that in deciding whether there are extenuating circumstances in a case of murder no factor not too remote or too faintly or indirectly related to the commission of the crime, which bears upon the accused's moral blameworthiness in committing it, can be ruled out from consideration.

 

18.3 It is for this reason that I find that there exist extenuating circumstances in this case, that reduce the moral blameworthiness of the accused in this case.

 

18.4 I also find that there are mitigating factors. It however is a point to ponder whether the accused has no previous convictions. This issue came about not in the normal fashion where the crown always informs the court immediately after conviction that the accused has no previous convictions. It only came about when the crown was submitting that the court should not consider the 10 years that the accused has already spend in incarceration when mitigating or reducing his sentence for, he was not there awaiting this trial. It was submitted by Adv Joala that the accused had been convicted of a different crime by another court. Thus, the computation of sentence should not factor in this period.

 

[19] SENTENCE

 

19.1 I have considered the trial of S v Zinn[16] in Sentencing the accused namely the gravity of the offence, the circumstance of the offender and public intention.

 

19.2 With these submissions in mind, I make the following order:

 

The accused is sentenced to a period of 25 years in the correctional facility for the crime of murder. He is sentenced to 10 years in the correctional facility for the crime of robbery. The two sentences run separately. The sentence is reduced by 2 years which are the number of years he spent awaiting this trial.

 

 

 

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M. G. HLAELE

JUDGE

 

 

For Crown:  Adv. Joala and Adv. Letsie

For Accused:  Adv. Masiphole