IN THE COURT OF APPEAL OF LESOTHO
C of A (CRI) O8/2011
In the matter between:
RETHABILE MPHAHAMA APPELLANT
CORAM: RAMODIBEDI, P
HEARD : 12 OCTOBER 2011
DELIVERED : 21 OCTOBER 2011
Criminal law – murder – accused finding his wife about to commit adultery with another man, shooting the latter eleven times – appellant professing loss of consciousness at time of shooting – whether reasonably possibly true – provocation – whether intent to kill not proved.
 In the early afternoon of 10 January 2010, and in a bedroom of Molemo Guesthouse in Maseru, the appellant found his wife in the company of another man, Tanki Bulane (the deceased). His wife and the deceased were both in a state of undress. Very soon afterwards the appellant shot and killed the deceased. As a result, the appellant was tried in the High Court before Monapathi J on a charge of having murdered the deceased. He pleaded not guilty. He was convicted of murder with extenuating circumstances and sentenced to eight years imprisonment. He appeals against his conviction.
 It is clear that the meeting of Mrs. Mphahama with the deceased was pre-arranged for the purpose of their committing adultery.
 Mrs. Mphahama was an Inspector in the Lesotho Mounted Police Service. On 15 October 2009 she applied for the loan of an official firearm on the ground that it would be for her protection during the course of her police duties. The application was granted. She was duly issued with a 9mm automatic pistol and a magazine containing 15 rounds of ammunition.
 A post-mortem report on a pathological examination of the deceased’s body revealed that death was due to multiple gunshot wounds which caused multiple organ injuries and severe blood loss. Apart from a lacerated nose and a laceration on the back of the head, there were 22 wounds caused by gunshots. The doctor’s sketches accompanying the report show that there were 9 obvious entry wounds: one on the right lower jaw, two on the left temple, five on the lower back and one on the rear of the left forearm. There were also two wounds higher up on the back in regard to which he noted “not clear whether exit or entry”. However he depicted 8 wounds on the front of the body, all drawn in the manner he adopted to show an exit wound. They matched very closely the wounds on the arm and back, not only the obvious entry wounds but also the two allegedly uncertain entry wounds.
 The medical evidence was neither challenged nor queried. It established beyond reasonable doubt that the deceased was shot eleven times. Clearly, eight of those shots were fired from the rear. The obvious inference is that he was lying prone when most of those shots were fired. The two temple wounds were close together and exhibit the appearance of execution-style shots.
 Police evidence established that all the shots were fired with the pistol issued to Mrs. Mphahama. 15 fired cartridge cases were picked up in the room where the killing occurred, indicating that every round in the magazine was discharged, and that four shots missed the deceased.
 The appellant gave evidence in his defence. A former soldier in the Lesotho Defence Force with training in the use of firearms, he was at the relevant time a schoolteacher. He and his wife had been married for about five years and had one son.
 On the day in question his wife left their home, ostensibly to visit her sister out of town. She had with her a small bag containing her cellphone and the pistol in question. The appellant drove off to look for a friend who lived at Ha T?osane. On the way he chanced to see his wife alighting from a taxi. This was at a place he did not expect her to be. He hooted to draw her attention but to no avail. His suspicions aroused, he parked his car and followed her. She eventually entered the Molemo Guesthouse. By the time he found her with the deceased they were on a bed. She was sitting astride him. He was naked and she was partially undressed. The appellant recognized the deceased. He was a friend and neighbour and a Superintendent in the Police Service.
 The appellant’s account of the relevant event was the following. His wife jumped to the far side of the bed and the deceased made for the door. The appellant tried to stop him. The deceased pushed the appellant but the appellant closed the door. The deceased overpowered him and pushed him again. The appellant’s head hit a cupboard. They struggled and in the process the appellant fell. The deceased pressed the appellant down with his knee. In the struggle wooden furniture in the room had been broken. The appellant said when he tried to stand up he saw the deceased coming towards him holding a piece of broken wood. He himself was still lying down but he managed to rise sufficiently to grab the pistol where it lay on a cupboard next to the bed. The deceased hit the appellant’s hand that was holding the pistol. The appellant pulled the trigger and started firing. His evidence then reads as follows:
“DW1: He hit me, with the plank, about three times my lord, I didn’t know what happened from there your lordship.
HL: You shot the man.
DW1: I shot but I don’t know where.
HL: You don’t know that you shot him?
DW1: I don’t know because what I recall is when my wife came and took away the gun from me saying to me do you see that you are shooting a person, you have shot the person.”
 Asked what his intention was in using the pistol, the appellant said –
“He was attacking me coming to me, I was trying to stop, threaten him from coming to me.
The appellant also said he felt “unbearable hurting” when he found his wife with the deceased. After the event he surrendered himself to the police.
 The aforegoing summarises the appellant’s evidence – in-chief. During cross-examination he was asked what, in relation to the shooting, he had been unaware of. He said:
“I could say I was furious, but I can’t explain it as I was blind, I could not see anything in front of my eye. I don’t even know when he fell down.
I cannot explain it but I lost consciousness, I blackened out, I wasn’t thinking straight, I didn’t know what was happening…”
 Referred by the trial Judge to the number and position of the bullet wounds, the appellant said he was unable to give any explanation other than that he thought he had lost consciousness. Finally, he was asked in re-examination whether he aimed at any part of the deceased’s body and he answered in the negative.
 It is plain from the appellant’s evidence that he had detailed recall of the events leading up to the shooting and of the events immediately afterwards. His professed lack of recalled consciousness was confined to the brief period which it took to fire 15 shots.
 In argument in support of the appeal the effect of counsel’s contentions was that the appellant had acted without fault either in self-defence or sane automatism or under provocation. On the last-mentioned basis the argument, in the alternative, was that the verdict should have been one of guilty of culpable homicide.
 The argument for self-defence is immediately undermined by the fact that had the two men been close to one another, face to face, as the appellant said, it is not believable that the first shot and at least some subsequent shots did not strike the front of the body. Yet four shots missed. On the other hand, if the first shot was the one which struck the deceased’s jaw and he then turned to try and run round the room evading the appellant (in which scenario four shots could have missed their target) the deceased either fell or was brought down by a further shot or shots. But there were ten shots other than the one in the jaw. The final shots, whether in the back or to the head, must have been fired when the deceased was already lying on the floor. In that situation there was clearly no reasonable possibility of self-defence. The head shots, as I have said, were close together as if constituting the coup de grace.
 Sane automatism is a suggestion so far fetched it can, with justification, be branded as so improbable it cannot reasonably possibly be true. It was not explained as the defence when the appellant pleaded. It had no support from any expert. And as so often the case when this defence is proffered, the appellant had good recall till immediately before the shooting and from immediately afterwards. It was plainly just a stratagem to evade inevitable questions as to the direction of aim, and the intent, with which the appellant fired.
 As far as provocation is concerned, it is entirely believable that the appellant said he felt unbearable anguish when he saw the scene before him in the Guesthouse bedroom. The circumstances would no doubt also have unlocked a flood of anger as well as a feeling of betrayal. Making allowance for all of that, the sites of the bullet wounds reveal no random, uncontrolled spray of shots but, on the contrary, a persistent barrage at a part of the deceased’s back. And the two closely placed wounds on the temple testify to a deliberate choice of target. Had the appellant taken the trial court into his confidence and laid some evidential foundation for the possibility that he shot to hurt but not to kill or the possibility that he did not even foresee death as possible; the position might have been otherwise. On the evidence given, those possibilities are not reasonable. The only reasonable inference is that he shot to kill or with indifference as to whether death resulted.
 The conviction was fully justified by the evidence. The appeal is dismissed.
JUSTICE OF APPEAL
PRESIDENT OF THE COURT OF APPEAL
Counsel for the Appellant : Adv L.D. Molapo
Counsel for the Crown : Adv K. Khoboko
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