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

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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.