Appeal against conviction and sentence for murder - Record of proceedings incomplete- court’s approach discussed;
Main challenge against conviction that the accused/appellant’s story reasonably possibly true – on evidence court a quo’s determination and conviction confirmed;
Sentence - whether court considered existence of extenuating circumstances – scope discussed; whether court considered all relevant mitigating factors – sentence reduced on finding relevant mitigating factors not adequately taken into account
IN THE COURT OF APPEAL OF LESOTHO
HELD AT MASERU
C OF A (CRI) No. 2/2015
In the matter between:-
TLHALEFO SARELE APPELLANT
CORAM: CHINHENGO AJA
HEARD: 30 November 2018
DELIVERED: 7 November 2018
The appellant or his attorney in civil matters and the Director of Public Prosecutions’ office in criminal matters shall be responsible for the preparation of court records and shall be liable to an adverse order of costs, including an order de bonis propriis, in the event of dereliction of this duty.
Regrettably the problem of sloppy records is one that has engaged the attention of this court for a long time, but seemingly to no avail. Thus for example in Motlatsi v Director of Public Prosecutions LAC (1995-99) 652; 1999-2000 LLR-LB 23 (CA) my Brother Gauntlett had occasion to sound a strong warning against presentation of shabby and/or incomplete records to this court. He duly drew the attention of practitioners to the above mentioned Court Notice No. 5 of 1998 and warned that, if it is not complied with, “adverse consequences (including personal costs orders against practitioners) must inevitably follow in appropriate instances. I respectfully agree. The same warning was echoed by my colleague L. van den Heever in R v Tsosane LAC (1995-99) 635; 1999-2000 LLB-LB 78 (CA).
The need for complete and proper records cannot be too strongly emphasised as the fate of litigation may very often turn on the quality of the record alone, which is obviously a far cry from true justice. I go further and warn that presentation of shabby and incomplete records does not only reflect badly on the parties concerned but is an insult to the court itself.
On appeal the record of the proceedings in the trial court is of cardinal importance. After all, that record forms the whole basis of the hearing by the Court of appeal. If the record is inadequate for a proper consideration of the appeal, it will, as a rule, lead to the conviction and sentence being set aside. However the requirement is that the record must be adequate for proper consideration of the appeal; not that it must be a perfect recorded of everything that was said at the trial.
Grounds of appeal
The learned judge a quo erred and misdirected herself –
1. …by repeatedly and unjustifiably descending into the arena as an active participant for far too often during the course of the trial thus rendering appellant’s trial unfair which resulted in a mistrial/miscarriage of justice.
7. The court a quo erred and misdirected itself by not finding that the appellant’s explanation was reasonably possibly true in the peculiar circumstances of the case.
2. … by failing to take into account a period of two years seven months and eight days that the appellant spent in prison as an awaiting trial prisoner when sentencing the appellant.
3. … by concluding that appellant had assaulted and committed several crimes against everybody who was present at the feast which conclusion had a bearing on a sentence of 25years, whilst in actual fact appellant had not been charged with assault.
5. … by failing to hold whether or not extenuating circumstances were present despite evidence having been brought in support of same.
6. … when sentencing appellant to 25 years which is too harsh and grossly excessive especially when no exceptional circumstances were said to exist warranting such a sentence.
8. … when sentencing the appellant by considering irrelevant considerations and disregarding relevant ones.
Facts proved by evidence
I rode to Sebetia and on my way the only road thereto passes next to where a feast of Mathuoela was held.
And I didn't even think that there were still people at the feast it be Mathuoela or any other people.
I left and as I was just about to go past that place and when I was next to that place, I met with Mzilikazi and Matela (the deceased).
As I met them the deceased tried to pull me down, fell me from the horse. …
They (Rantsatsi and Kaiser) were some distance backwards away from the homestead. (Estimated to be 6 to 12 paces away.)
When he (deceased) held me we had not had a conversation at all even when he had already caught hold of me that is as I was passing. …
As he so held me he held me together with the firearm that was on my waist.
And I also tried to hold it fast against my waist clutching on the top part of it so that he should not disarm me of that firearm.
And we struggled over the firearm until it went off.
And it shot once and I immediately returned there and then, no more going to Sebetia where I had been sent after it had fired to report to my father as to what had happened.
“At the inspection in loco and according to the evidence of the witnesses, the way or the road to Sebetia passes at some distance from Mrs Malineo’s homestead. Matela was shot at Mrs Mallineo’s premises not on the public road to Sebetia that passes near that homestead. According to the eye witnesses PW1 and 2, Matela was shot a little distance from the tent and fell by the entrance where his brother was leaning against the tent.”
On arrival at Mrs Malineo’s place the accused went straight to where he had left Matela, and as fate would have it he was still there almost at the same spot where he left him. He found him right there. The facts prove that the accused had not been away long enough to find the scene changed. To ensure and ascertain that he is the correct target he looked into the face of Matela and ascertained that it was him, he shot him twice or three times using a gun shows that the accused intended to kill Matela …. He galloped away by or on a horseback.
Appeal against conviction
Judicial officers are not umpires. Their role is to ensure that the parties’ cases are presented fully and fairly, and that the truth is established. They are not required to be passive observers of a trial; they are required to ensure fairness and justice, and if that requires intervention then it is fully justified.
Now the law as I have always perceived it to be is not whether the accused’s explanation is true but whether it may possibly reasonably be true. That is the real test. Conversely the test is not whether the Court subjectively disbelieves the accused. Indeed the Court does not even have to reject the case for the crown in order to acquit the accused. That remains so even where the case for the Crown is overwhelming against the accused. The Court must still determine whether the defence case is so demonstrably false or inherently so improbable as to be rejected as false. It is also important to bear in mind that in embarking upon this exercise it is a wrong approach to reject the accused’s explanation merely because the Court is satisfied as to the reliability of the witnesses for the Crown. It is only after the merits and demerits of the two sides have been analysed and weighed together with the probabilities of the case that a court would be justified in reaching a conclusion one way or the other regarding the question whether the Crown has proved its case beyond a reasonable doubt.
In most modern, enlightened societies the death sentence is no longer countenanced as an acceptable form of punishment. In Lesotho, it still exists as a competent punishment, compulsory in the case of murder without extenuating circumstances and discretionary in instances of murder with extenuating circumstances.
“This means that the question of extenuating circumstances must be considered. This does not call for detailed discussion because the Crown conceded such circumstances did exist.”
“where a Court on convicting a person of murder is of the opinion that there are extenuating circumstances, the Court may impose any sentence other than the death sentence.”
“Where a person has been detained as an un-convicted person, the time during which he has been detained shall be included or excluded from the term for which he is ultimately sentenced as the Court of Appeal may determine.”
1. The conviction is confirmed.
2. The sentence is set aside and substituted with the following-
“The accused is sentenced to fifteen years imprisonment, from which shall be deducted a period of 2 years 6 months being the time that he spent in custody awaiting sentence.”
ACTING JUSTICE OF APPEAL
For Appellant : Adv M. T. Tlapana
For Respondent : Adv Ranthithi
 LAC (2000-2004) 215 at C-E
 2 ALL SA 552 (SCA)
 see p. 26 of the record
 p. 39 of record
 p 58 of record
 p. 29 of record
 See record at pp 103-104
 at p 196 of record
 2005 (2) SACR 331(SCA)
 (1997-1998) LLR 197 at 237
 1937 AD 370 at 373
 1946 AD 1023 at 1027
 LAC (2000-2004) 788 at 794 B-C
 LAC (2000-2004) 817 at 820 H
 C of A (CRI) No. 6 of 2011
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