HIGH COURT OF LESOTHO
by the Honourable the Chief Justice Mr. Justice B. P. Cullinan on the
5th day of June, 1987
appellant was charged before the Subordinate Court for the Maseru
District with attempted murder. He was found not guilty thereof,
guilty of common assault. He appeals against conviction.
complainant and another testified that they were at a beer drinking
party, when altercations arose between the complainant and
appellant. The latter, a policeman, seized a rifle from another
policeman and fired twice after the complainant and the other,
they left the premises.
however a number of weaknesses or inconsistencies in the evidence.
First of all, all of the witnesses, including the appellant,
drinking. It was so dark at the time, that the complainant decided,
after the appellant had fired one shot at him, to
remove his light
coloured shirt, so as to conceal himself in
If the appellant could not then see him, the question arises, as the
learned Counsel for the appellant Mr. Maqutu submits,
as to whether
the complainant and his associate could see the appellant, and in
particular observe whether or not he held a rifle
in his hands..
complainant and his associate testified" that two rounds were
discharged, whereas the policeman in charge of the rifle
that only one round was discharged. The complainant admitted that
they had gone around the corner of a house when the
That aspect alone, combined with the darkness, would preclude the
necessary intent in the offence charged. For
that matter, I cannot
see how the discharge of a rifle would constitute an assault against
someone who was around the corner of
the building in complete safety.
complainant and his associate testified that it was the appellant who
levelled the rifle at them. The associate testified
he"did not notice where the policeman from whom the accused took
the gun was at the time of the shooting, as there
confusion". It was the evidence of that policeman however, that
the appellant discharged the rifle in the air, when
he was trying to
physically dispossess the appellant thereof.
witness, who was called by Court, testified likewise that the
appellant had seized the rifle from the other policeman. He
mention of the presence of that policeman when the appellant
discharged the rifle.
when asked whether the appellant had discharged the rifle at the
complainant he said that he"had last seen him going
house." Again the complainant
it was "getting dark", though obviously it was yet quite
dark, the court witness put the time at between 7 p.m.
and 8 p.m.
the aspect also that the other policeman, voluntarily gave his rifle
to the appellant at first, while he observed the call
of nature. He
testified that when he regained the rifle it was then that the
appellant repossessed it by force. While the appellant
did at some
stage therefore possess the rifle the question remains as to whether
he possessed it at the material time.
appellant and a number of defence witnesses testified that the other
policeman,and not the appellant, discharged the rifle.
While one of
those witnesses was clearly not telling the truth, when he said that
the sun was still up at the relevant time, it
would seem that there
were less inconsistencies in the defence case than that of the
prosecution. While the learned trial magistrate
evidence, he did not thereafter make specific findings of credibility
with respect to the particular witnesses giving
his reasons therefor.
event, on the record, I consider that reasonable doubt must have
remained. In brief, I am not satisfied that had the learned
magistrate specifically directed his mind to the various points I
have enumerated, he would inevitably have convicted the
be unsafe to allow the conviction to stand. The appeal is allowed and
the finding and sentence of the court below are set
Appellant : M. W. Maqutu
Crown : Director of Public Prosecutions Mr. S. Peete
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