THE COURT OF APPEAL OF LESOTHO
OF A (CRI) N0. 10/09
the matter between:
POTSANYANE FIRST APPELLANT
KABI SECOND APPELLANT
law – Murder – Ballistic evidence – Requirements –
A missing link in the chain of proof sought
to connect the appellants
with the fired cartridge and the firearm alleged to have been used in
the killing of the deceased –
The appeal upheld – Both
convictions and sentences set aside.
the night of 15 March 2004, and at or near a place called
Roma in Maseru district, one Ramosiki Mehlolo (“the deceased”)
was shot by two hooded men in an apparent ambush,
only a few metres
before reaching his home. According to the post-mortem report he
died on 17 March 2004. The cause of death
was recorded as “gunshot
to the abdomen.”
upon that incident the appellants were tried in the High Court on
three counts, namely:-
1: Robbery on the allegation that the appellants unlawfully shot the
deceased and that by intentionally using force and violence
submission by him they stole from him the sum of M1,100.00.
2: Murder on the allegation that upon or about the date in question
and at the same place the appellants unlawfully and intentionally
killed the deceased.
3: Contravention of the provisions of section 3 (1) (2) (a) of the
Arms And Ammunitions Act 1966 as read with the 1999 Amendment.
was alleged that on the date in question the appellants were found in
unlawful possession of a firearm without a firearm certificate.
appellants were acquitted on count 3. They were, however, found
guilty as charged on both counts 1 and 2, being robbery
respectively. They were sentenced as follows:-
1: 2 years imprisonment each.
2: 18 years imprisonment each.
sentences were ordered to run concurrently.
appeal is directed against both convictions and sentences. As
against the former, the appellants complain that the prosecution
failed to prove its case beyond reasonable doubt. They contend that
the prosecution relied solely on circumstantial evidence which,
however, did not exclude every other reasonable inference pointing to
their innocence. As regards sentence, they complain that
must be recorded at the outset that there was no direct evidence
implicating the appellants in the matter. Indeed there
were no eye
witnesses to the deceased’s killing. As the appellants
correctly point out in their grounds of appeal, the prosecution
was based purely on circumstantial evidence.
outline, the evidence for the prosecution amounted to this. On the
night in question, at about 10 o’clock, Mopenyaki
was driving home after closing his shop. Just before reaching home,
he found a “long pole” lying across
the road. He managed
to avoid it. He then saw two men wearing “hoods.” He
did not identify them, except to say that
one was taller than the
other. After parking his car, PW1 heard a gunshot. Then he heard
his neighbour, a woman by the name of
Thato, scream for people to
come and help. As a result, PW1 approached her. It was there that
he found the deceased who had fallen
outside the door. The deceased
explained to PW1 that he had been shot by two people as he tried to
remove a pole lying across
this background, the prosecution set out at the trial to try and
prove that the two hooded men in question were the
appellants. The prosecution story in this regard commenced with the
evidence of Tebello Mafau-Fau (PW2) who worked at
a public phone
stall on the campus of the National University of Lesotho. He
testified that on the day following the deceased’s
appellants requested him to phone Maseru as they were selling a
firearm. It was a “small gun” and it
was held by the
second appellant. It was black in colour.
to PW2, the police arrested him on the same day at noon. They asked
him who were the people who had come to him carrying
a firearm. At
the outset the appellants submit that this is a clear example that
the police concocted a case against them. In
view of what follows
hereunder, I consider that this is not a far-fetched proposition.
The police story put to PW2 is, at the
very least, strange in view of
the fact that it did not come from PW2 himself. On the contrary, the
story came from the police
themselves. They obviously fed the story
that as it may, PW2 was detained for two days. He implicated the
appellants as the people who had come to him selling a
cross-examination it emerged for the first time that the police had
in fact assaulted PW2 upon their arrival saying he should
who had arrived at his place holding a firearm because “someone’s
child” had died.
23 March 2004, Detective Trooper Seeisa (PW7) examined the deceased’s
body at the mortuary at Queen Elizabeth II Hospital.
had sustained three wounds on the abdomen. Acting on certain
“information” PW7 then arrested the first
appellant on 24
cross-examination of PW7 the following crucial evidence emerged for
the first time:-
the scene of the crime had been interfered with. For example, the
iron pole which had been lying across the road had been
placed inside the yard. A 9mm shell was allegedly found “at
PW7 did not mark the shell he allegedly found at the scene.
PW7 handed the shell to “ballistic examination.” Once
again the shell was not marked.
PW7 did not specify the person to whom he handed over the shell at
the “ballistic examination.”
PW7 did not even identify the shell in court. It was simply not
produced in evidence.
Lofafa (PW8) testified that he worked at IEMS which is part of the
National University of Lesotho. He worked with
the first appellant.
On 16 March 2004, the appellants brought him a gun for his use in
self-defence. It was a 9 mm pistol. It
had a “silver frame
and black sides.”
it was not just “black” as PW2 had testified. The
appellants wanted M800.00 for the gun but PW8 gave them
further testified that on 25 March 2004, PW7 and policeman Sekopo
(PW9) arrived at his office. Strangely enough, so it
seems, they fed
PW8 the story that the person who had given him a firearm was inside
the police van outside. This, despite the
fact that PW8 had not
initiated the story himself. As can be seen, this once again ties in
with the defence proposition that the
whole case against the
appellants was concocted or “tailored.” This is more so
since the first appellant was never
confronted with PW8.
is common cause that PW9 retrieved the gun from PW8’s waist.
It had seven bullets. Hence it is self-evident that
it was PW8, and
not the appellants, who was found in unlawful possession of the gun.
Strangely enough, PW8 was neither charged
with unlawful possession of
the gun nor was he declared an accomplice witness.
Trooper Sekopo (PW9) testified that he was one of the investigators
in the case. On 25 March 2004, he was in the
company of the late
policeman Makhele, PW7 and the first appellant. Although PW7 did not
mention it, PW9 says that the first appellant
took them to PW8.
Typically, the police “demanded” from PW8 “the
firearm that A1 had sold to him.” Once
again it will be seen
that the police themselves fed this story to PW8. It was not
initiated by him, something that once again
would seem to lend
credence to the defence proposition that the whole case is nothing
but a concoction.
confirmed that he retrieved a 9mm pistol from the waist of PW8.
Crucially, he could not recall the serial number of the
too, testified that the colour was “black and silver.”
He did not mark it. He handed it in as Exh “1”.
further testified that he took the firearm Exh “1” to “a
ballistic examination” together with one
shell. The strange
thing, as will be recalled, is that PW7 also claimed that he was the
one who handed over the shell to the “ballistic
Be that as it may, PW9 had no personal knowledge where the shell
came from. He did not identify anyone at
examination” to whom he handed over the firearm Exh”1”
and the shell.
it turned out in cross-examination that in his statement PW9 did not
mention that he handed over the firearm
Exh “1” and shell
for ballistic examination. The conclusion that he lied in this
regard in his evidence in chief is,
therefore, inescapable as the
too, confirmed that the police did not lay any criminal charge
against PW8 despite the fact that he was found in unlawful
of the firearm. But his explanation for failing to charge PW8 is
even more startling in my view. He said that it was
“needed his (PW8’s) evidence to balance the evidence of
the Crown.” As can be seen, that balancing
act tends to
support the defence version of “tailored” or “concocted”
evidence against the appellants.
evidence of Senior Inspector Pali (PW11) is in my view crucial to the
outcome of this case. His evidence showed that he
is a firearms
examiner. He said that on 29 March 2004, PW9 handed in a 9mm short
model PA 63 pistol, serial Number BH0638 together
with one (1) 9mm
fired cartridge. It will be remembered, however, that PW9 did not
say that he handed over the firearm to PW11.
Be that as it may, PW11
identified it as the firearm, Exh “1”. It will
immediately be apparent, however, that PW11
was the only person who
identified Exh “1” by its serial number, something
commendable on its own. But that in my
view falls short of
explaining the origin of Exh “1” or its link with the
his evidence in chief PW11 testified that the fired cartridge had
been fired from Exh “1”.
PW11 frankly admitted under cross-examination that “in normal
cases the evidence collected from the scene
should be sealed and
labelled from the scene.” The witness is obviously correct.
conceded that the submission form concerning Exh “1” and
the fired cartridge was not signed by PW7, contrary
procedure. Furthermore, he agreed that PW7’s omission in this
regard flouted the “injunction orders of
the court” that
whenever exhibits are collected they must be marked immediately by
the person who collected them.
importantly, PW11 conceded that the fired cartridge was not marked,
adding significantly, “it was inside an envelope,
mentioned of anybody, not Seeisa (PW7), not anybody just the
cartridge case inside.”
PW11 correctly conceded that there was “no evidence of transfer
of the cartridge from the person who collected
it to PW9 who in turn
allegedly handed it to PW11 himself.
further testified that it was necessary for him to have photographs
of the suspect cartridge and test cartridges for comparison
making microscopic findings. Curiously, he testified that he was
only shown Exh “1”. The fired cartridge case
not there. As a result he did not produce the photographs in order
to demonstrate the comparisons he had made.
PW11 conceded that it was necessary for him to demonstrate to the
court the marks caused by the firing of Exh “1”.
However, he was unable to conduct this demonstration simply because
the suspect cartridge case was missing.
PW11 candidly conceded that in these circumstances he could not be
sure that the fired cartridge was in fact the one
which had allegedly
been collected from the scene of the crime. Indeed PW11 could not
dispute the reasonable possibility, as suggested
by the defence, that
the police might have fired the cartridge from Exh “1”
as this Court acknowledged in Thabiso
Mothobi And Others v Rex C of A (CRI) N0.5 of 2007
per my Brother Scott, a court should not blindly accept and act upon
the evidence of an expert witness. It must decide for itself
it can safely accept the expert’s opinion. On this principle,
therefore, it follows that the court cannot rely on
the evidence of
PW11 in these circumstances.
have set out the prosecution evidence at length and in some detail in
order to demonstrate the fatal flaws inherent in it.
the chain of proof was broken. There are gaps or missing links in
the chain of proof required to link the appellants
with the murder
weapon. See for example, Mohajane
And Another v Rex 1985 – 1989 LAC 14 at 18.
Moreover, I consider it to be of fundamental importance in a case
such as this that the suspect shell should be kept in safe custody
that no one can fiddle with it. The police ignored the basic crucial
procedure to mark and identify the exhibits from the scene
crime right up until their presentation in court. As Mr.
for the appellants submitted for example and, correctly so in my
view, there is a reasonable possibility that the alleged fired
cartridge could have come from anywhere. The fact that the scene of
the crime had been tampered with adds to the uncertainty.
Furthermore, the fact that the police fed their story to the
witnesses as indicated earlier and that they even assaulted PW2 in
the process lends credence to the defence submission that the case
against them was cooked.
being a case resting wholly on circumstantial evidence, it is
necessary to recall the celebrated remarks of Watermeyer
JA made some
61 years ago in R
v Blom 1939 AD 188
at 202 – 203 on inferential reasoning, namely that:-
inference sought to be drawn must be
consistent with all the
proved facts. If it is not,
the inference cannot be
proved fats should be such that they
exclude every reasonable
inference from them
save the one to be drawn.
If they do not
exclude other reasonable
there must be a doubt
whether the inference
sought to be drawn is
the facts as fully outlined above fall under the second principle
laid down by Watermeyer JA admits of no doubt.
regard to these factors cumulatively, it follows that the prosecution
failed to prove its case beyond reasonable doubt.
the appeal is upheld. Both convictions and sentences recorded by the
trial court are set aside.
OF THE COURT OF
the Appellants: Mr. M. Ntlhoki
the Respondent: Adv. H. Motinyane
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