CRI/A/65/84

IN THE
HIGH COURT OF LESOTHO

In the
Appeal of :

BRIGHT
NOOSI Appellant

v.

REX
Respondent

REASONS
FOR JUDGMENT

Filed by
the Hon. Acting Mr. Justice J.L. Kheola on the 18th day of January,
1985.

The
appellant was convicted by the magistrate at Butha-Buthe of the crime
of assault with intent to do grievous bodily harm. He
had been
charged with the crime of culpable homicide but at the end of the
case, the Crown conceded that it had failed to prove
beyond a
reasonable doubt that the assault perpetrated by the appellant was
the direct or substantial cause of the death of the
deceased (R. v.
Tekane 1980(2) L.L.R. 342), The trial court returned a verdict of
guilty of assault with intent to do grievous
bodily harm because it
is a competent verdict. He was sentenced to nine (9) months'
imprisonment.

The
appeal is against both conviction and sentence. It is contended that
the learned magistrate ought to have returned a verdict
of guilty of
common assault. The facts of the case are briefly as follows: On the
2nd June, 1983 the appellant, the deceased and
P.W.1 were at the home
of P.W.2. The time was about 7.00 p.m. when the appellant demanded
the money deceased owed him. The deceased
told him that she would go
to a cafe and bring the money. After some time the appellant repeated
his demand. She asked him why
he made his demand in the presence of
so many people. The appellant became very angry and slapped her on
the face, felling her
to the ground. He then kicked her with his
booted feet on the body and trampled over her on the
parietal/temporal region. The deceased
started bleeding

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through
the nostrils and the mouth; she also became comple­tely
disorientated or fainted and was unable to speak. She wheezed
very
heavily and her tongue appeared to have shrunk back into the throat.
The appellant dragged her towards the door and made her
sit up
supported by the wall. He rubbed off the blood from her nostrils.
Eventually the deceased was carried by the appellant onto
a
wheelbarrow and P.W.1 drove it intending to carry her to her home.

On the
way to the home of the deceased, P.W.1 met two men who raped the
deceased who was still virtually unconscious and forced
P.W.1 to
abandon her at the foot­ball ground. On the following morning,
the deceased was found on the foot-ball ground and
she was still
unconscious. She was taken to the hospital where she remained in a
coma for about two months before she died. The
doctor who treated the
deceased found that she had sustained marks of assault on the face
and he diagnosed severe commotio cerebri,
in which cerebral bleeding
could not be excluded. The doctor who performed the post-mortem
examination was unable to find the cause
of death.

The
appellant admitted that he slapped the deceased on the face and that
she fell down. He also admits that he kicked her on the
shoulders but
denies that he trampled over her temporal area. In a case of this
nature, the crown must prove beyond a reasonable
doubt that the
appellant had the specific intent; i.e. to do grivious bodily harm
and that is a question of fact (and not of law)
which must be decided
on the basis, inter alia, of the following factors:

(a) the nature of the weapon used and in what manner it was used;

(b) the degree of force used and how such force was used;

(c) the part of the body aimed at; and

(d) also the nature of the injury, if any, which was sustained S. v.
Dipholo, 1983 (4)

S.A. 757
(T.P.D.) and S. v. Mbelu, 1966 (1) P.M., H.176(N).

In the
present case, the weapons used were boots with which the deceased was
kicked on the head and on the upper part

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of the
body. She was also struck on the face with the palm of the hand.
There can be no doubt at all that shoes are very dangerous
weapons
when a male person wearing them kicks another person with them.

The parts
of the body aimed at in the present case were the temporal area of
the head and the chest. These are very delicate parts
of the body
because any severe impact on the head may adversely affect the brain
even if the skull has not sustained any fractures.
The degree of
force applied in the present case appears to have been very severe
because immediately after the deceased had fallen
down, she was
unable to stand on her feet nor to sit up without support. Even the
slap on the face was not a light one, it felled
her and she
immediately bled from the nos­trils and from the mouth. It
clearly shows that the appel­lant used a great deal
of force when
he slapped her. The kicks on the head were also not light because the
deceased lost consciousness as a result of
being kicked on the head
and chest. It has been argued that the deceased lost con­sciousness
because of the extreme state of
drunkenness in which she was. This
argument has no substance at all. Just before she was slapped and
felled down and kicked, the
deceased was not staggering, she was
standing on her feet and having a perfectly normal altercation with
the appellant. She was
saying things that were highly sensible
indicating that, although it is common cause that she was drunk, she
was not so drunk that
she could fall down and become unconscious as a
result of drunkenness. The defence has hopelessly failed to persuade
me that the
coma in which the deceased fell when the appellant
assaulted her was due to drunkenness; it was a direct result of the
assault.

With
regard to the nature of the injury sustained, it has been argued that
because the doctors were unable to find the cause of
death and any
serious external injuries, the proper verdict ought to have been one
of guilty of common assault. I do not agree
with this submission
because grievous bodily harm is 'harm which in itself is such as
seriously to interfere with health' (R. v.
Edwards, 1957

4

R. &
N. 107 at p. 109, R. v. Greenspan. 1956 (2) S.A. 192). The hurt which
was inflicted by the appellant was a harm which seriously
interfered
with the health of the deceased because she immediately became
unconscious for two months till she died. As I have already
stated
above, it is ridiculous to suggest that the coma was caused by
drunken­ness.

It must
be emphasized that the main thing in this kind of case is the
'intent' and that the actual injuries inflicted are just one
of the
many factors which have to be taken into account in determining the
'intent'. It does appear that even where no serious
injuries have
been inflicted an accused person may still be found guilty of assault
with intent to do grievous bodily harm (R.
v. Dipholo supra). For
instance, if an accused person gets hold of another person and pushes
him down a fairly high cliff but the
latter miraculously sustains
only minor scratches, there can be no doubt about the intent. The
medical evidence was that there
were marks of assault on the face of
the deceased and by that I understand him to mean some sort of wounds
or some scratches or
abrasions. Although there is no evidence that
these injuries were already present when the deceased left the home
of P.W.2 on a
wheelbarrow, we know, that as a result of being kicked
with booted feet she fell into a coma.

In his
well reasoned judgment, the learned magistrate has referred to the
case of S. v, Mapasa, 1972 (1), S.A. 524 in which it
was held that in
determining whether the more serious offence assault with intent to
do grievous bodily harm has been committed
as distinguished from the
offence of common assault, questions as to the age and physical
condition of the participants are relevant
as also the manner in
which any instrument with which an assault is committed, is used. It
was a case in which a healthy young
man of 27 years of age had
assaulted a frail, sickly old man of 80 years. It was held that the
element of serious injury or shock
became apparent and real. In

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the
present case, the appellant is a healthy young man of 30 years and
was in his sound and sober senses when he attacked a young
woman who
was hopelessly drunk, as alleged by the defence. Serious injury was,
therefore, very real and apparent.

For the
reasons stated above I dismissed the appeal against conviction. With
regard to the sentence imposed by the learned magistrate,
I formed
the opinion that it was substantially different from what this Court
would have imposed. It is true that the assault inflicted
by the
appellant caused the initial unconsciousness of the deceased; after
that she was not only raped by two men but was left
exposed on a very
cold night. When she was found on the following morning, she was not
wearing any blanket and her dress was covering
her head while the
whole body was ex-posed. The doctors who examined her were not sure
what effect the exposure and drunkenness
had on her condition, but
they could not rule out the possibility that they had something to do
with her death. For that reason,
the appellant cannot be held to be
the only person responsible for her condition. There was also an
element of provocation which
must be taken into account but I am by
no means sug­gesting that it justified the brutal assault
inflicted upon the deceased.
The appeal on sentence is allowed and
the sentence imposed by the trial court is set aside and substituted
with one of R180-00
or 9 months' imprisonment,

J.L.
KHEOLA,

ACTING
JUDGE.

18th
January, 1985.

For
Appellant : Mr. Mofolo

For
Respondent : Mr. Peete.