of A (CRI) No. 3 of 2001
THE COURT OF APPEAL OF LESOTHO
the matter between:
, 11th October2002
Murder, attempted murder and kidnaping. Accused -
all former policemen - convicted on two counts of murder and three
counts of attempted murder on the basis of a common purpose. Three
accused convicted on the kidnaping charge. The circumstance in which
this doctrine can be applied set out. Convictions confirmed.
Sentence of one accused reduced because a more prominent role
ascribed to him by the court a quo than the evidence warranted.
1. On the 31st of
October 1995 and at the Maseru Cental Charge Office, (the MCCO) a
shoot-out between certain armed members of the Royal Lesotho Mounted
Police (RLMP) took place. In the exchange of gunfire, three police
officers were killed and three seriously wounded. Arising from
these and other collateral events the six appellants and a seventh
accused (A.6 in the court below) were charged with two counts of
murder, three of attempted murder and one of kidnaping. All six
appellants were convicted on the murder and attempted murder
charges. Only the 1st , 2nd and 5th
appellants were found guilty on the kidnaping charge. I will deal
later with the sentences that were imposed on each of the
appellants. All the appellants have appealed both against their
convictions and sentences. I will refer to the appellants as they
were described in the court below, i.e. as A1, A2, A3, A4, A5 and
2. It was the Crown=s
allegation in the indictment that all the appellants acted in
concert when the various offences were committed. In so far as the
kidnaping charge was concerned, the allegation was that they had
unlawfully and intentionally deprived one W.O. Ramoeletsi (P.W.1) of
his liberty Aby forcefully
lodging and detaining him in a police cell at Ha Mabote Police
Station on the same day.@
3. In order to contexualise the
events the background against which they took place needs to be
described. It appeared that a police strike had taken place in
1994. A crises or grievance committee named ACodesa@
was formed. Codesa had been the body through which the disaffected
members of the police force had negotiated with the senior
management of the R.L.M.P. All the appellants were members of the
Codesa - accused No.6 who was acquitted in the court below, was not
a member of this body.
4. With the exception of A1 and
A7, all the accused were members of the Band Unit or Response Unit
and were stationed at the Police Training College. These two units,
which in practice functioned as one unit on operations, were
mandated to deal with situations which were outside of the scope or
capacity of the conventional police operations. They were
accordingly heavily armed. Their arms and their paramilitary
uniform distinguished them from the conventional police personnel.
5. I have referred above to the
police strike that took place in 1994 and which gave birth to
of which all the present appellants were members. In 1995 there was
a teachers= strike. A
Col. Penane - one of those killed in the shoot-out - was in his
capacity as Commander of the Maseru Urban police region, detailed,
together with PW1, to deal with the disruptive and unlawful aspects
of the strike. The manner in which they carried out these duties
brought them into conflict with other members of the R.L.M.P. - and
as will be seen - also with Codesa whose members co-ordinated their
6. The background to the events
of the 31st October would be incomplete without referring
to two incidents that occurred earlier that month. On the 16th
of October P.W.1 received an anonymous letter. In it the witness was
enjoined to desist from working with the government and Aadvised
to stop doing so.@ At
3.30 a.m. on the 19th of October the second relevant
incident occurred. The witness deposes to the fact that his home
was subjected to a serious gunfire attack. He said that bullets
were fired into the house, his fridge and furniture, walls and
pillars were raked by this gun fire. From information received from
an informer, PW1 suspected that A1 was involved in these events.
7. In an attempt to resolve
matters and to reduce tensions a meeting was called on the 30th
of October attended inter alia by Col. Penane, PW1 and
A1. According to the evidence, Penane, who attended in his capacity
as PW1's superior, was of the view that their complaints had not
been addressed and that the meeting failed to resolve matters.
8. It would appear that Codesa
now decided to act in a co-ordinated operation. In the early hours
of the next morning (4 a.m.) a number of police dressed in
operational uniform and heavily armed occupied the M.C.C.O. PW5 was
in charge at the time. She says that amongst those who entered the
M.C.C.O. were A3, A4 and A7. There were according to her more
policemen (some 10 in number) from the P.T.C. outside in the yard.
A3 and A7 were together, and A7 informed her that they had come for
talks with her superiors. She tried to contact Col. Penane. However
there were two troopers from the P.T.C. present and all she could do
was to inform him that police from the P.T.C. were at the M.C.C.O.
Shortly thereafter A3 ordered her out of the radio room from which
she had telephoned and instructed her to stop using the telephone
and not to get involved. She attempted to leave in order to
telephone from outside the precincts but was prevented from leaving
by members of the P.T.C. She decided to wait outside in the yard
which she did until certain senior police officers arrived. The
members of the P.T.C. who occupied the M.C.C.O were armed with
rifles, some of which were Aready
9. One of the senior police
officers who arrived on the scene was Col. Penane. He asked her to
collect a letter from his office. Whilst she was engaged on this
errand she heard gunshots emanating from the top floor of the
building. She went to the reception area where she met some of the
policemen with whom she worked. She was waiting there when A1
arrived wearing an operational uniform. He made a telephone call in
her presence but she was unable to hear what he was saying.
10. It was clear to her prior
to hearing the gunfire and whilst the M.C.C.O. was being occupied,
that A3 was in charge of the police who were present. He made it
clear to her that she should not become involved in the matter. A3
also informed PW13 that whilst they did not want bloodshed they
would affect arrests if necessary. PW13 and other members of the
Robbery and Car Theft Squard (R.C.T.S.) were instructed by A3 to
lock up their firearms but they refused to comply with the order.
referred above to the fact that prior to the shoot-out PW5 had
identified both A4 and A7 as part of those occupying the premises.
A7 had informed her - his senior officer - that they had arrived for
discussions. It was clear to her that of these two, A7 was assuming
a leadership role whilst A4 was supportive. It soon became evident
that no such discussions had in fact been arranged.
12. It appeared from the
evidence of PW7, an Assistant Police Commissioner, that a number of
senior police officers were being detained in a conference hall at
the Police Headquarters (P.H.Q.) He was confronted by two armed
policemen, a trooper and a sergeant who attempted to direct them
(PW7 and his companions) also to the conference hall. He said he
ignored this instruction and ordered his officers to return to their
offices. It was at this point that he heard the sound of firearms
being discharged from the M.C.C.O. He received a telephone call
from PW2, Col. Ngatane, that they were being attacked by police from
the P.T.C. and other places. He made a telephone call to the
M.C.C.O. and spoke to A1 who was the most senior person present. He
ordered him to stop the shooting. A1's response was to say that he
would not stop until one of his men had been released from the
office of the divisional commander. PW7 then left for the M.C.C.O.
accompanied by some of his senior police officers. On his arrival
he found Lance Sergeant Lekhooe lying dead, Col. Penane still alive
but seriously wounded as were three other officers. I will return
later to describe how the events that led up to this tragic outcome
is necessary to go back in time to collateral events that took place
elsewhere, to paint the picture as to how Col. Penane came to be at
the M.C.C.O. and how he and PW1 appeared to have been the particular
focus of the disaffected members of the P.T.C. and Codesa.
14. It would appear that one
prong of the operation was to apprehend Col. Penane. To this end
his home in the Naledi area was cordoned off and surrounded by
policemen. The Colonel realising his predicament, at about 6.15
that morning telephoned PW1. He instructed him to obtain the keys to
the armoury located at the M.C.C.O. It was clear that the M.C.C.O.
was surrounded by disaffected police officers. He (Col. Penane) did
not want the keys to end up in Athe
wrong hands.@ He
instructed PW1 to take the keys to him Aat
his place.@ PW1 obtained
the keys from the responsible police officer and drove to Col
Penane=s house. According
to PW1 armed policemen attempted to stop him. He was able to evade
them and reached Penane=s
home and handed over the armoury keys. Amongst the policemen
involved in the operation at Penane=s
house PW1 identified L/Sgt. Lekhooe, the deceased policemen
subsequently killed at the M.C.C.O. and A4. Penane left his home
and proceeded to the M.C.C.O. via a circuitous route.
15. When PW1 departed via
another route, he was stopped at gunpoint by Lekhooe, A5 and A6 and
disarmed of his pistol. This pistol subsequently came into the
possession of A1.
16. According to PW1 he was
forced at gunpoint to drive to the police station at Ha Mabote. The
persons who were pointing rifles at him were A5 and A6. The
deceased, sergeant Lekhooe, sat next to him and was pointing a M.16
rifle at him. When they arrived at the police station PW1 saw a
Kombi and two vans travelling at a high speed coming towards the
parking lot at Ha Mabote. A2 and Legoyi approached him, informed
him that he had been arrested and would be locked up in a cell. A
sergeant Mphatsoane also alighted from one of the vehicles and spoke
to the witness. He asked PW1 not to be stubborn because these
people were planning to shoot him. Asked whose operation this was,
he was told it was Molise=s
(A1) operation. A5 also spoke to PW1 and asked him for his pistol.
When informed that he had already been deprived of his firearm, A5
asked for the bullets which PW1 refused to hand over to him.
17. He was now taken into the
police station where he met A1. The latter was carrying webbings
and had two 9 mm pistols on his side. He was also carrying a M.16
carbine rifle and was wearing an Aarmoured@
vest. (A bullet proof jacket.)
18. At A1's instruction a group
of policemen shepherded PW1 towards a cell. Amongst those who
escorted him, PW1 identified A2 and A5. The witness was ordered by
A1 to enter the cell. He refused but was pushed into it. A1 took
his walkie-talkie radio from him. PW1 was then told by A1 to pray.
At 8 o=clock, they would
be finished, they had had enough of them and that Athey@
would be finished. By this the witness understood they would be
killed. PW1 was then locked in the cell.
19. A few minutes later the
door of cell was opened and PW1 saw A5. A2 who accompanied A5 told
PW1 to hand over his badges of rank. He took off his shirt and gave
it to them. They then left saying he Ashould
remember 8 o=clock time.@
remained locked in the cell until about 1:30 p.m. when he succeeded
in breaking down his cell door and he escaped.
21. I now turn to the events
that took place elsewhere that morning. A routine meeting was to be
held in the office of PW2 at the M.C.C.O. It was due to be attended
by a number of senior officers. Amongst these were Major Chabeli
(who was killed in the shoot-out), three officers who were wounded
and in respect of whom appellants were charged with their attempted
murder, as well as others identified by PW2. He, Col. Ngatane, was
the Regional Commander of the Central Region and was to preside at
the meeting. Col. Penane arrived a little late and briefed them as
to what had happened at his home that morning. He (Penane) was very
angry and was carrying an AK 47 rifle which was taken from him by
one of his colleagues and hidden behind a safe. The meeting had
just started when there was a knock at the door and the deceased -
Segt. Legoyi - entered followed by A5. The former was in full
webbing, armed with a M16 rifle with a large number of loaded spare
magazines and he also carried a 7.65mm pistol.
22. The deceased approached
PW2. He saluted and said that they wanted Col. Penane. Ngatane
asked him what they wanted him for. The deceased then repeated his
demand that they wanted him. At this point the deceased had turned
with his back to the witness and was now facing in the direction of
Col. Penane with his rifle at the ready pointing at the Colonel. At
this point Penane said ADo
you know that Penane you are looking for.@
As he said this he pulled out his pistol from his waist. Gunfire
now erupted, resulting in the carnage described above. Indeed it is
extraordinary that with some 26 bullets being discharged, the death
toll was limited to three persons Lekhooe, Chabeli and Penane and
that only three persons, those named in the indictment, were
seriously wounded: (These were PW4, PW11 and one Capt. Mokolatsie).
Of the 26 bullets discharged 3 came from Penane=s
pistol, 21 from Lekhooe=s
rifle and two could not be connected to these two firearms.
23. PW2 says that immediately
after the shooting he ordered the police outside to disperse. The
witness informed the Commissioner of Police by telephone of the
events. He then peeped through the window and observed A3 Ataking
cover@ next to a house and
trailer. He was carrying a G.P.M.G.
- a general purposes machine
gun. By his description of A3's position, the witness meant that A3
was lying next to the G.P.M.G. in a ready position - ready to shoot.
24. At some time after the
shooting A1, A2 as well as A3 were seen at the M.C.C.O. PW8 -
Major-General Makoaba - had given an order that all shooting should
stop. He addressed this injunction to A1 who appeared to him to be
Ain command of the
operation.@ His response
was that he would not stop until Sgt. Lekhooe had been released from
for A4 all of the accused testified in the court below. In summary
their testimony was that although they had been present, their
purpose was one of mediation and not confrontation. Thus A1 denied
ever depriving PW1 of his liberty. Indeed according to him PW1
voluntarily confined himself in the cell. This is so improbable as
to merit rejection without further ado. However, PW10's evidence
confirms that PW1 was in fact forcefully incarcerated. This
evidence was not challenged in cross-examination.
26. Counsel who appeared before
us for all the appellants argued their case both competently and
throughly. At no stage, however, did he suggest that their evidence
was worthy of credence. Although some of the assessments of the
evidence by the court a quo appear to us to have been ill-founded
(e.g. the acquittal of PW6) it was obviously correct in rejecting
the evidence of all of the accused.
therefore have to assess the guilt or innocence of the appellants on
the basis of the acceptable evidence of the Crown witnesses, a great
deal of which was not challenged in cross-examination. In doing so,
and despite the fact that some of the findings made in the court
below appear questionable, we must, as defence counsel has pointed
out, have due regard to the fact that the trial court had obvious
and considerable advantages in making credibility and reliability
findings. A great deal of the critical comments of the trial court
was however not directed at the reliability of their testimony but
rather at their unsatisfactory, sometimes supine and generally
unacceptable behaviour, from what should have been a disciplined
28. Indeed the evidence paints
a distressing picture of the morale and standards of discipline of
the R.L.M.P. as it was constituted in 1995. The inaction of some of
the senior officers in view of the mutinous conduct of the lower
ranks, raises very real concerns about their loyalty to the State
and commitment to maintaining order and discipline.
proceeding to evaluate the extent of the involvement and the
possible legal liability of each of the appellants in the events
that took place that day, I comment briefly on the overall view we
take of what took place during October 1995.
30. The police strike and the
formation of Codesa in 1994 must have contributed to the disarray
which was so evident in October 1995. The threatening, anonymous
letter received on the 16th of October and the attack by
gunfire on PW1's house a few days earlier cannot sensibly be
considered in isolation. Indeed these incidents are inextricably
linked to what took place on the 30th and 31st
31. I say this because it is
clear that the negotiations that took place on the 30th
of October were attempts to resolve the tension between Codesa led
by A1 on the one hand, and PW1 and Col. Penane on the other. When
these failed, the evidence leads one inevitably to the conclusion
that a decision was taken by the Codesa leadership to target PW1 and
Penane. What exactly they intended to do with them is not clear.
But that they were prepared to use force in order to achieve their
objective is clear from all their conduct and more particularly from
their capture and incarceration of PW1.
32. The co-ordinated nature of
the various prongs of Codesa=s
operations is also of great significance. Thus they attempted to
isolate both PW1 and Penane. They succeeded ultimately in
capturing PW1 and incarcerated him at Ha Mabote Police Station.
However Penane escaped the net they had cast around his home and
made his way to the M.C.C.O. In the meantime and from about 4 a.m.
that morning, they (members of Codesa) had besieged the M.C.C.O. and
had cut communication from its precincts with the outside world by
taking control of the radio room.
the meantime they had herded police management into the conference
hall at Police Headquarters (P.H.Q.) where they were held under
guard by the heavily armed Segt. Sekekane.
34. Counsel for the appellants
when asked what purpose the participants had other than to arrest,
incarcerate and perhaps ultimately carry out their threat to kill
PW1 and Penane, said that their objective could have been only to
intimidate. This submission is gainsaid by their conduct towards
PW1. Moreover, none of them testified that this was what they had
in mind. However, even if this were their objective, it was an
unlawful enterprise upon which they were engaged and which
inevitably envisaged the use of force in order to achieve that
appellants were charged with the crime of murder, attempted murder
and kidnaping. It was alleged that in committing these offenses
they acted in concert. According to Counsel for the Crown the
purpose they had in common was to capture and in some way or the
other to deal with Penane and PW1 in a way that would persuade them
to desist from using the methods they (Codesa) deemed unacceptable.
As indicated above, particularly as evidenced by their behaviour
towards PW1, they comprehended the use of violence in achieving
36. This Court in Mabaso
and Another v Rex, L.A.C. (1980-1984) 256 at 258 - 259
adopted a dictum articulated in S. v Madlala 1969 (2)
S.A. 637 (A) at 640. It reads as follows:-
is sometimes difficult to decide, when two accused are tried
jointly on a charge of Murder, whether the crime was committed by
one or the other or both of them, or by neither. Generally and
leaving aside the position of an accessory after the fact, an
accused may be convicted of Murder if the killing was unlawful and
there is proof:
that he individually killed the deceased, with the required dolus,
e.g. by shooting him; or
that he was a party to a common purpose to Murder, and one or both
of them did the deed; or
that he was a party to a common purpose to commit some other
crime, and he foresaw the possibility of one or both of them
causing death to someone in the execution of the plan, yet he
persisted, reckless or such fatal consequence, and it occurred;
see S v Malinga and Others 1963 (1) SA 692 (AD) at 694F-H
and 695; or
that the Accused must fall within (a) or (b) or (c) - it does not
matter which, for in each event he would be guilty of Murder.@
S v Malinga cited above, S v Goosen 1959 (4)
S.A. 1013 (A) and S v Khosa 1982 (3) S.A. 1019 (A).
37. The Crown case was that there was a common purpose to apprehend
Penane and PW1 with the foresight that should there be resistance
death may result. Despite foreseeing the possibility that one or
more of them could cause the death of someone in pursuit of their
common goal, they persisted to execute their plan in the course of
which two police officers died, three were seriously injured and one
was kidnaped and incarcerated.
38. The validity of this contention in so far as it is applicable to
each one of the accused has now to be tested with reference to the
acceptable evidence tendered by the Crown at the trial. I have
already indicated that the court a quo had, correctly in my view,
rejected the evidence of the five appellants who testified and that
no credence whatsoever can be given to their testimony unless
corroborated by other acceptable evidence. A4 did not testify or
contradict any of the evidence linking him with the conspiracy as
have already pointed out that, viewed holistically, there can be no
doubt that after the negotiations failed on the 30th of
October, the leadership of Codesa decided to embark upon a series of
planned actions calculated to bring about the apprehension and
detention of Col. Penane and PW1. This was clearly an unlawful
series of activities.
40. The next question is, did they comprehend as part of their plan
that resistance may result in reaction to their forcible
apprehension of their victims and that the death of one or more
persons, victims or participants could result. The evidence that
the answer to this question must be in the affirmative is
can be no doubt that the threatening letter to PW1 and the attack by
gunfire on his house earlier in October was a signal that violence
would be used in pursuit of what was at that stage an attempt at
intimidating him. The many pronged action plan that was put into
operation on the 31st of October was carried out by
trained policemen, many of whom were heavily armed, in combat attire
and with a determination to overcome any resistance that may be
offered. The treatment of PW1 and the conduct of A3, lying in wait
with a G.P.M.G. in the forecourt of the M.C.C.O. are perhaps the
most graphic features underscoring the validity of these findings.
42. I am
therefore satisfied that anyone who is proved to have participated
in a meaningful and positive manner in the action plan of Codesa:
was knowingly participating in an unlawful enterprise, that
comprehended the use of violence in pursuit of the common goal,
foresaw the possibility of violent resistance,
foresaw the possibility of death resulting during the course of the
action necessary to achieve their objectives, and
recklessly persisted in pursuing these goals, knowing that death
may result from their actions.
43. The shoot-out at the M.C.C.O. was a foreseeable outcome of a
heavily armed group of policemen attempting to apprehend a senior
police officer who they knew could well be armed and would in all
likelihood resist being apprehended, incarcerated and Adealt
with@ in a manner that
would cause him to change his approach to the way in which he was
dealing with the teachers=
strike. It is even possible that the most likely ultimate plan was
to kill Penane should he resist. How else could Codesa ensure that
he would not continue to pursue the methods he deemed appropriate to
quell the strike? The threat directed at PW1 to finish him is a
pointer in this direction. Counsel for the Crown conceded very
fairly however that there was not sufficient evidence to enable the
court to draw such an inference beyond a reasonable doubt and that
the purpose of the threat may well have been only to intimidate.
proceed to examine the proven conduct of each one of the appellants
and whether such conduct as has been proven justifies the findings
made by the Court a quo in respect of each one of the appellants.
45. A1 was undoubtedly the leader of the pack. Counsel for the
appellants cautioned us not to attach too great a weight merely to
the fact that those members of Codesa who were present were in
combat uniform and were armed, because, bearing in mind their duties
as members of a response unit, they customarily wore such a uniform
and would in the ordinary course of their duties be armed. This
contention however has little if any validity in the case of the 1st
Appellant. He was a member of the C.I.D. and did duty as a
photographer. The evidence establishes that he was armed not only
with two 9 mm pistols a M.16 carbine rifle, but also with
hand-grenades. He was in operational dress and wore a bullet-proof
vest. He was involved in the incarceration of PW1 in the cell,
threatened to kill him and on all the evidence played a leadership
role throughout. He was at the M.C.C.O. after the shoot-out and
although commanded by PW8 his commanding officer to stop the
shooting, declined to do so until his man Lekhooe had been released.
There is other testimony involving him in material respects with
the operation. It is unnecessary to relate this because of the
overwhelming evidence of the leadership role he played in the
operations. There can be no doubt that he was a lying witness and
that he was correctly convicted on all the charges. His appeal is
46. In so far as A2 is concerned his involvement is chronicled as
follows. He is identified as one of those who were engaged in
surrounding Col. Penane=s
house. He was the driver who attempted to stop PW1 as he approached
Penane=s house. After PW1
had been held up at gunpoint, disarmed and driven to Ha Mabote
Police Station, he was confronted by A2 who confirmed that he had
been arrested and should be locked in a cell. As stated above it
was A2 who asked PW1 for his uniform and for his badges of rank
after he had escorted him to the cell into which he was forced by
A1. In cross-examination PW1 describes A2 as one of Athe
active people@. A2 was in
operational uniform and was armed. PW1 regarded A2 as second in
command. PW2 saw A2 conversing with A5 shortly after the shooting
and PW6 saw him in the grounds of the M.C.C.O. at about 8 or 9 a.m.
He was carrying a Abig
gun@. PW12 also
identified him at the parking area at Ha Mabote police station with
PW1 and saw him take PW1 into the office.
evidence was quite rightly rejected by the court a quo. Despite the
corroborated evidence of PW1 he denies ever having been at Ha Mabote
police station at all during that day. I have no doubt that A2 as a
member of Codesa fully identified himself with their objectives on
the day in question and took an active role in the kidnaping of PW1.
His presence with a Abig
gun@ at M.C.C.O. is
further evidence of an ongoing involvement with the operations
conducted by his colleagues. His participation was of such a nature
that I am satisfied that he was rightly convicted on all counts.
His appeal is dismissed and his convictions are confirmed.
48. A3 is the policeman who was seen by PW2 lying next to a
G.P.M.G., which was in a position ready to fire, taking cover
outside the M.C.C.O. immediately after the shooting. He was also
seen by PW4 at the M.C.C.O. shortly before the shooting. It will
also be remembered that PW5 identified him as coming to the charge
office early that morning and that he was the person who instructed
her not to use the telephone. Several other witnesses saw this
appellant at the charge office, accompanying A1 and A2. His
presence and the extent of his involvement is also elucidated by PW7
PW13, PW11 and PW14. There can be no doubt that, tested against the
criteria set out above, he associated himself fully with the common
purpose and was rightly convicted on all counts other than count 6
was seen by PW1 as part of a group that cordoned off the
Naledi-Centre where Col. Penane lived. He was in operational dress.
He arrived at the M.C.C.O. together with A3 and A7, while A7 played
the up-front role, A4 was Asupportive@.
They both said they had arrived for discussions, well knowing that
this was a pretence.
50. More importantly however PW13 says that A4 was at the M.C.C.O.
in full operational dress armed with an M16 rifle and in the company
of A3 who was in charge.
above evidence, uncontradicted by any testimony from A4, establishes
that he was a participant in the operations both at Col. Penane=s
home and at the M.C.C.O. The extent of his participation whilst
sufficient to establish his guilt on all charges other than on count
VI, appears to be less serious than that of his co-accused.
the court a quo clearly misdirected itself when it held that A...
accused 3, 4 and 7, these accused masterminded the assembly at the
M.C.C.O. and their campaign of intimidation and softening up process
at the M.C.C.O. led directly to the fatal events in PW2's office.@
I will deal with this aspect of the matter when I deal with the
propriety of the sentences imposed on A4.
53. A5 was involved in the kidnaping of PW1. He asked him for his
pistol, escorted him inside the charge office and asked him for his
badges of rank. It is clear that he accompanied Lekhooe when the
latter entered the office where the senior police-officers were and
that was either in or at the door when the shooting took place. PW2
saw him at the M.C.C.O. also after the shooting. He was armed with
an automatic pistol. Clearly he was intimately and extensively
involved in the operation and was correctly convicted on all counts.
His appeal against his conviction must therefore fail.
54. A7 was a member of Codesa and was stationed at the M.C.C.O. He
was there in a brown operational uniform armed with a rifle and was
clearly involved in the process of the occupation of that building.
He untruthfully alleged that they had come for talks and alleged
that he was there at the request of the Assistant Commissioner of
Police, PW7. The latter alleges that A7 ignored him and his command
to stop. Neither did he recognize his superior=s
presence. The witness was not cross-examined on this aspect of his
evidence which remained unchallenged, although denied by PW7 in his
testimony. According to the Assistant Commissioner, A7 was
carrying a Abig gun@
or rifle. It will be remembered that according to PW5, A7 played
the leading role in the discussions with her at the M.C.C.O. His
guilt as a participant in the unlawful operations that took place
that morning, knowing that they were unlawful and that shooting and
death could occur in the attempt to effect arrests and holding
officers to ransom, he nevertheless participated in the operations.
He was correctly convicted on all the charges except count 6. His
appeal against his convictions is therefore dismissed.
come to deal next with the propriety of the sentences imposed on the
appellants by the High Court.
The court a quo imposed the following sentences:
ACount 1: Accused 1 and 5
are sentenced to 15 years imprisonment. Accused 3, 4 and 7 are
sentenced to 10 years imprisonment. Accused 2 is sentenced to 6
years imprisonment 2 of
which is suspended for 3 years on condition accused is not found
guilty of committing an offence involving violence during the period
II: Accused 1 and 5 are sentenced to 15 years imprisonment. Accused
3, 4 and 7 are sentenced to 10 years imprisonment. Accused 2 is
sentenced to 6 years imprisonment 2
of which is suspended for 3 years on condition accused is not found
guilty of committing a crime involving violence during the period of
III: Accused are sentenced to 2 years imprisonment.
IV: Accused are sentenced to 2 years imprisonment.
Count V: Accused are sentenced to 2 years imprisonment.
VI: Accused are sentenced to 2 years imprisonment.
It is ordered that sentences run concurrently.@
was common cause that the only accused who were convicted on count
VI were accused 1, 2 and 5. The other accused were acquitted on
this count. They could therefore clearly not have been sentenced as
though they had also been convicted on the kidnaping charge. I will
rectify this patent error when I summarise the convictions on each
57. As a general comment the sentences, subject to what I say about
A4, cannot be faulted as being too severe. The criminal behaviour
of these police officers required lengthy custodial sentences.
However I have pointed to the fact that the court a quo erred when
it said that he (A4) had masterminded the assembly at the M.C.C.O.
There does not appear to be evidence of his degree of participation
in the events that would justify attributing such a role to him. His
culpability certainly appears to be less than that of A7 and more
akin to that of A2. However, the sentence imposed upon A2 (6years;
2 suspended)on the murder
charges appears to us to be inordinately lenient. There has been no
appeal by the Crown and we can therefore not interfere with this
sentence. Whilst therefore we believe that justice requires a
lesser sentence for A4 than that imposed on A3 and A7, we do not
believe that any portion of such sentence imposed on him should be
suspended. In his case therefore the sentences imposed upon him on
counts 1 and 2 are reduced to six years imprisonment on each count.
there was a similar misdirection in respect of A7, we believe that
in view of his more extensive participation in the events in
question an effective sentence of 10 years was appropriate and
59. In the result the appeals of all six accused against their
convictions are dismissed and their convictions are confirmed.
sentences imposed by the court a quo as set out above are amended to
read as follows:
Count 1: Accused 1 and 5 are sentenced to 15 years imprisonment.
Accused 3 and 7 are sentenced to 10 years imprisonment.
Accused 4 is sentenced to 6 years imprisonment. Accused 2 is
sentenced to 6 years imprisonment, one half (2)
of which is suspended for 3 years on condition that the accused is
not found guilty of committing an offence involving violence during
the period of suspension. (The underlining above and below is to
indicate the changes in the sentences imposed by the High Court).
Count II: Accused 1 and 5 are sentenced to 15 years imprisonment.
Accused 3 and 7 are sentenced to 10 years imprisonment.
Accused 4 is sentenced to 6 years imprisonment. Accused 2 is
sentenced to 6 years imprisonment 2
of which is suspended for 3 years on condition accused is not found
guilty of committing a crime involving violence during the period of
Count III: Accused are sentenced to 2 years imprisonment.
V: Accused are sentenced to 2 years imprisonment.
VI: Accused 1, 2 and 5 are sentenced to 2 years imprisonment.
It is ordered that all the sentences are to run concurrently.
I agree: _______________
I agree: _______________
JUDGE OF APPEAL
Delivered in open court on the 11th day of October 2002.
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