IN THE COURT OF APPEAL OF LESOTHO
C OF A (CRI) NO. 10 OF 2010
In the matter between
THE DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT
MPHASA SEKONYELA RESPONDENT
HEARD: 5 OCTOBER 2011
DELIVERED: 21 OCTOBER 2011
CORAM: MELUNSKY JA
Criminal law – evidence – accessory after the fact – accused electing not to give evidence - inference drawn as to degree of accused's participation – must be the only reasonable inference to be drawn from the established facts.
 The respondent was one of two accused charged in the High Court with one count of murder and one count of robbery. He was cited at the trial as accused No. 2. Both accused pleaded not guilty to each count. After the close of the Crown case, the respondent's co-accused gave evidence in his own defence but the respondent closed his case without testifying. Accused No. 1 died before the Court could deliver judgment and the case against him accordingly fell away. After analyzing the evidence, the learned Judge (Peete J) found the respondent guilty as an accessory after the fact to murder and robbery and imposed a prison sentence.
 The Director of Public Prosecutions appeals to this Court against the verdict of Peete J. He contends that the conviction of the respondent only as an accessory after the fact, and not as a perpetrator or accomplice on each of the counts, was not in accordance with the weight of evidence against the respondent.
 The facts placed before the trial court in regard to the role played by the respondent can be briefly stated. During the night of Saturday 16th July, 2005, some time before the deceased was murdered and the Complainant assaulted and robbed (which events were not in dispute), the respondent was seen at a tavern in the company of Accused No 1. There was some evidence to the effect that Accused No. 1 had been heard to say that he was "targeting" (a term which, as it implies, means "desirous of acquiring") two leather jackets worn by the deceased and the Complainant who had been drinking at the tavern and were standing outside it at the time. The evidence was that respondent was standing or sitting in the immediate vicinity of Accused No. 1 when this was said but there was some confusion about the number of people who were standing near Accused No. 1. The deceased and the Complainant were attacked some time later that night and the only evidence of the attack itself was given by the Complainant. All he could tell the court was that he had been walking a short distance behind the deceased when he was forcibly struck on the head from behind and lost consciousness. He had recovered consciousness some hours later and, being unable to locate the deceased, had made his way home. The first witness for the prosecution, who testified to having seen the respondent with Accused No. 1 earlier in the evening, told the court that, later on the same night, he had seen Accused No. 1 sitting alone at the tavern, no longer wearing a track suit top which he had worn earlier. Two police witnesses stated that the respondent was traced and arrested as a suspect on 4th August and it was, in due course, established that the respondent was in possession of the Complainant's cell phone and the off-white shoes worn by the deceased on the night of the attack.
 Peete J, in the course of summing up the evidence and with reference to the "targeting remark" made by Accused No. 1, correctly stressed that:
"There is no evidence nor can a reasonable (inference) be drawn that Accused No. 2 associated himself with this remark made by Accused No. 1."
He concluded (correctly in my view) that the case against Accused No. 1 had been established. He relied on these findings, coupled with the respondent's decision not to testify, to draw the inference that the respondent had, at the very lowest, assisted his co- accused to perpetrate the offences by helping him to dispose of the fruits of the crimes. The learned Judge came to this conclusion on the following basis:
'If (the respondent) had received the cell-phone and boots innocently, he could have easily thus explained but he elected to keep his silence; the fact that he elected not to give evidence perfectly justifies this Court, while not coming to "an extreme inference" that he committed the murder and robbery, to conclude that he is an accessory after the factto the crimes of murder and robbery and I convict him accordingly."
 It is perhaps important to stress at this juncture that we are asked by the Crown to find that the learned Judge erred in coming to his conclusion – that he should properly have concluded on these facts that the respondent was guilty of murder and robbery. There is no cross-appeal, and therefore it is unnecessary to consider whether the learned Judge's conclusion may have erred in the other direction in that he took the inference too far, as submitted on the respondent's behalf.
 Now the test for the proper drawing of an inference in the criminal law hardly needs restating. The inference which the court draws must be the only reasonable inference, i.e. there must be no other reasonably possible explanation for what had occurred. There is, of course, no onus on an accused to enter the witness box to explain to the court what actually happened – that is for the Crown to establish. In this instance, it seems clear that there are a number of possible ways in which the respondent could have come into possession of the shoes and cell phone. The crimes were committed on 16th July. The stolen articles were found in the respondent's possession nearly three weeks later. One reasonably possible situation is that he may have been ignorant of his co-accused's participation in the offences but have been aware that there was a likelihood that the articles had not been acquired lawfully. To protect himself against a charge of possession of stolen property, he may have lied to the police about his ownership of the goods. The possibility that such might have been the case would have precluded the court from drawing an inference, beyond reasonable doubt, that the respondent had been an accessory in the commission of the crimes themselves. But this is the very inference which the appellant asks this Court to draw. In my view, Peete J could not, on the evidence before him, have justifiably reached such a conclusion and appeal must accordingly fail.
 The appeal is dismissed.
N V HURT
JUSTICE OF APPEAL
I agree :
L S MELUNSKY
C T HOWIE
Counsel for Appellant : Adv. Makuku
Counsel for Respondent: Adv. M P Tlapana
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