C. OF A
(CRIl NO. 1 OF 1998
COURT OF APPEAL OF LESOTHO
Van den Heever, J.A.
December 199. oman and a man, both naked, were found dead
a room on
property where she lived. They had been shot. The woman was
'Maselloane Tsosane, the man Lejoetsamang Nkiane. For the
convenience I refer in what follows to her as "the deceased"
and to the man by his surname.
Tsosane (hereinafter "the accused") stood trial in the High
Court before Mofolo J and assessors for the murder
of those two. The
Crown case was based on circumstantial evidence about the hostile
relationship between the accused and the deceased,
evidence that shells found at the scene had been fired from a 9 mm
pistol which the accused had handed to the police
at Thamae when he
was called in for questioning and arrived there a few weeks after the
accused pleaded not guilty. Neither the accused nor his counsel, Mr
Ntlhoki (who also represented him before us) gave any intimation
special defence such as an alibi. The "defence" was - as
was the accused's right - merely insistence that the Crown
case beyond reasonable doubt. Mr Ntlhoki attempted to undermine the
credibility of each and every one of the Crown witnesses
by means of
lengthy cross-examination more often than not relating to what proved
to be irrelevant detail since the accused neither
nor called any witnesses. He also, in long verbal skirmishes with
sometimes the presiding judge, sometimes Crown
counsel, seems to have
claimed the right to be
in his attack on witnesses. In the process he often ignored
elementary rules both of inferential logic and
fairness, perhaps with
Micawberish optimism that if he fished widely enough something
advantageous was bound to turn up. Merely
as examples : he asked
questions so general in scope ("Did you leave anything out of
your deposition at the preparatory examination")
that in logic
and fairness no adverse inference can be drawn from the answer "No"
where further facts thereafter come
to light in reply to specific
questions. So too when two witnesses gave widely divergent dates on
which the accused had come to
the Thamae police station he challenged
the second one, with the proposition that one of them must be lying.
The witnesses were
in fact talking of different incidents.
accused was acquitted. The Crown appeals against that acquittal on
the following grounds :
"1. The learned Judge misdirected himself by singling out the
uncontroverted set of circumstances as itemised on p.27 of the
judgment and dismissing each of them instead of considering their
learned Judge misdirected himself by drawing inferences favourable
to the accused on each circumstance but flatly refraining
drawing inferences of guilt from their compound result.
learned Judge erred in law when he dismissed the uncontroverted
evidence of the ballistic examiner on the basis of counsel's
cross-examination which was based on speculation and conjecture.
learned Judge misdirected himself when he ignored the fully
explained pictorial representation of the tests adduced in court
pinpointing the points of similarity between the control shell and
the exhibit shell.
learned Judge erred in law by criticising the evidence of the
ballistic examiner on the basis of writings of an academic authority
whereas that authority merely delineates the various methods that
are open for use by an examiner and does not differ in material
respects from the methods used by P.W.6.
learned Judge misdirected himself by holding that the inconclusive
results of tests done on the dead bullet necessarily threw
Crown's case open.
learned Judge misdirected himself when he held that the delay in
submitting the shells and fire-arm for ballistic examination
necessarily affected the outcome of the tests."
record unfortunately does not contain the "pictorial
representation" referred to in paragraph 4. Without it the
evidence as recorded is almost incomprehensible. We called
for the photograph and for exhibit 2, being an airmail envelope
three 9 mm shells and a spent bullet, to be produced
before us. They were, after we were obliged to stand the matter down.
counsel agreed that they were what had been produced at the
trial and was referred to in the record, and moreover concurred in
pointing out to us the marks reflected in the photograph which the
ballistic expert witness relied on in his testimony.
record has many other failings. Hopefully criticism voiced will
induce practitioners to assist this Court to fulfil its function
without having to wrestle with a record as difficult to make head or
tail of, as this one. Furthermore no heads of argument for
respondent were made available to the Bench until the omission was
pointed out when the matter was called in court. It appeared
they had been filed on 19 March already.
certificate of the assistant registrar of the High Court that "This
is checked and correct record of the above case which
commenced on 11
November 1997" proved to be worthless. Patent flaws are that the
record contains neither the indictment nor
any record of the plea
rendered by the accused (which we learn only from the judgment). The
only documentary exhibits with which
we were favoured, are two
incomplete and largely illegible copies of the reports of the post
mortem examinations of the deceased,
handed in by consent.
the passages in the evidence make no sense whatsoever. One can but
guess at the reason : some failing in the recording apparatus;
lack of knowledge of the English language on the part of the
typist(s) responsible for the transcription of the recorded evidence;
or on the part of the interpreter? Merely one out of many examples:
defence counsel asked PW 1 :
".......This site you refer to why you say accused and your
mother had several court cases or had a court case has been a
disputed site between your mother and accused's mother, is that
council is saying that, this was a highly disputed matter, the
question of this site between accused's mother and your mother.
this was highly disputed by the accused and his mother and this is
why this dispute ended lip chewing my mother.
listen, you just answer the questions as they come. Don't make
unnecessary addition. For example you were asked the question
help you this is a highly disputed site between your mother and
accused's mother and you were expected that the answer as
you did in
fact you could have been said yes it was highly disputed between my
mother and accused's mother or justify then accused
and his mother
Actually the accused's mother no longer has power to go to court, the
person who is staying on her behalf is the accused himself.
passages in the record which are repeated, but not in identical
terms. Compare for example pages 92 - 101 with 105 - 115
and 116 -
117. Only the last of these has any punctuation. There seems to be a
gap between pages 191 and 192 of the record. On
the former, defence
counsel is still cross-examining the ballistic expert; on page 192 -
193 Crown counsel hands in exhibits B
and C, the two post mortem
reports, after which he closed his case. The judgment speaks of the
last witness having been both re-examined,
and questioned by one of
the assessors. There is no record of that, nor of the fact that the
accused closed his
which we learn from the judgment (and which fortunately is common
obviously impossible for the Registrar to read every record prepared
for purposes of an appeal and ensure that everything
that happened at
a trial is correctly reflected therein. In a matter such as the
present one the representative of the Crown, which
appeal, could and should have ensured, as enjoined in Court Notice 5
of 1998, that the record on which the Crown relies
is correct and
complete. In certain matters it may also be advisable, sometimes
imperative, that original exhibits produced at
the trial, should be
made available at the hearing of the appeal without the court's
having to ask for it. Photostatic copies of
photographs on which a
party relied, for example, are seldom clear. If photographs are
material to the outcome of an appeal, the
originals should be
available at the hearing of the matter. In criminal matters the
accused has no authority over the material
produced by the
prosecution, so that it is the duty of the latter to ensure that this
is done more particularly where the original
exhibit(s) is\are vital
to the case for the Crown.
present matter the authenticity of the depositions at the preparatory
examination was accepted by both parties, and neither
party asked the
ballistic expert to hand in his report on his examination of relevant
exhibits from which he refreshed his memory.
Mr Ntlhoki again did not
object Since a typist may have
in producing the evidence of an expert on a topic with an esoteric
vocabulary of its own, in my view it is advisable to
hand in as
exhibits the actual reports prepared by, or previously recorded
evidence of, experts instead of merely reading such
into a trial
for the present respondent whom I continue for the sake of
convenience to refer to as the accused, did not contend that
record is so flawed that the accused has been denied his right to a
fair appeal. The difficulties encountered by the Court
because of the deficient record and moreover without timeous receipt
of heads of argument, do not therefore absolve it
the merits, to ensure that justice is done between the parties. It is
unnecessary to state, but I nevertheless
do so as a reminder, that
the Crown represents the community at large, and that it is as much
in the interests of the community
that someone who is clearly guilty
of murder, should not go unpunished, as it is that conviction should
only follow where guilt
is proved beyond a reasonable doubt.
then to the merits.
Crown's case, in a nutshell, was the following. The deceased already
son, PW1, when she married Lefa Tsosane, a younger brother of the
lived together on Lefa's property in a house he had built for them
adjoining the property of the accused, further flats or
Lefa's site being let. She and Lefa had a child who was already of
school-going age when Lefa died. After his death she
having inherited the property from her late husband. The accused,
however, did not recognize the validity of either
her marriage to
Lefa or her title to the property that had been his. He thereafter
displayed considerable animosity towards her.
He had uttered threats
against her. He had been unsuccessfully involved in litigation with
her about the site. He had been seen
to be present on his own
adjoining property when the police came to where the bodies of the
deceased and Nkiane had been found
by the deceased's son. He had not
permitted the deceased to be buried next to Lefa, had not attended
her funeral, and had even
unsuccessfully thereafter attempted to have
her body exhumed from where it had been buried on her own site.
of this background, the accused, a member of the Lesotho Defence
Force, was a suspect and was called in for questioning
by the police
election to make a statement which might be used in evidence against
him, or might exonerate him, he chose to remain silent.
admitted to personal ownership of a 9 mm pistol which he handed to
the police and was exhibit
1 at the
trial. The live bullets in the pistol were returned to him. The
pistol was labelled and police possession recorded in the
exhibits, as had already been done with the three shells and one dead
bullet found by the police at the scene of the
crime. The pistol and
the envelope into which the other four items had been put, were sent
for examination by PW6, a police arms
examiner (or forensic ballistic
expert). PW6 found that the empty shells had been fired from the
pistol handed in by the accused
as his personal property. Mr Ntlhoki
at the trial accepted the fact of the expertise of PW6, but
challenged the correctness of
his findings and therefore
acceptability of his expert opinion.
evidence of the witnesses through whom the Crown sought to make out
its case, may be summarized as follows.
son of the deceased who lived in his own room on her site, had been
working night shift and had come home at 3 a.m. on
14 December 1994.
When he called at her house later that morning on his way to work
again, he found the door ajar, and the naked
corpses of the deceased
and Nkiane on the bed. He had heard no gunfire. He closed the door
and went to call the police at nearby
Thamae station, returning to
the scene with them. The only person he knew of who bore his mother
ill-will was the accused. Me had
unsuccessfully tried to evict her
but had lost the case. After her funeral, which the accused had not
attended, having refused to let her be buried next
to Lefa, the
accused had evicted all her tenants, permitting only Lefa's child to
remain on the premises.
cross-examination defence counsel elicited from PW1 that the accused
had threatened to kill the deceased because she was selling
from "his" site, to which stone the accused laid claim;
that PW1 had seen the accused on his adjoining property
himself returned with the police whom he had summoned; and that he
suspected the accused of being the murderer, and had
told the police
so, when questioned.
Trooper Paneng, stationed at Ha-Thamae in 1994, had been on duty when
the accused came to report that he was involved in a
dispute with a
woman whose name the witness had forgotten, about a site she wanted
to sell. The accused told him that "it
had appeared to him that
he will end up making some mistakes because the issues concerning the
site were already at court".
He asked for advice. PW 2 advised
him to go to the civil court which was already seized of the matter.
The accused then left. This
incident occurred three or four days
before the deceased and Nkiane were killed on the very same site of
which the accused had
woman trooper Moloi, PW3, (who had been PW4 at the preparatorym
examination) had been at Thamae police station when PW1 came
report that his mother and her "manfriend" had been killed.
She and Detective Sergeant Rabuqha and others accompanied
him to his
mother's stand. The door appeared to have been forced open because
the lock was damaged. She described the area and
what she saw inside
the room where the bodies were. There was a 9 mm shell near the door,
a second "at "the place where
the pots were placed,"
and a third next to the bed. When the corpses were removed a spent
bullet was found in the bed. All
four of these objects were taken by
the police and kept at Thamae police station, as exhibits, except for
the period when they
were taken for ballistic examination, but duly
returned thereafter. She had met the accused about a year earlier,
after the deceased
came to complain that the accused was trying to
evict her from the site which had been left to her by her deceased
testified that "we" -I take it that refers to
PW3 and a police colleague or colleagues - called both parties in,
advised them to have their dispute settled by the civil court.
The accused left, discontented. After the murders, the accused was
contacted by Trooper Putsoe, in the presence of the witness, at his
work at Makoanyane. She was not there when the accused arrived
Thamae, nor did she see him thereafter. She knew Detective Sergeant
Lechesa who participated in the investigations but who also
before the trial commenced.
attack on her credibility was primarily based on the fact that she
had in her evidence revealed details which she had not deposed
the preparatory examination. She said she had not then been asked
also suggested that the exhibits had been tampered with or were
somehow suspect because the description on the envelope,
did not precisely reflect the contents : no mention was made of the
dead bullet. She explained that the shells and spent
bullet she had
found, had originally been put in a brown envelope labelled inter
alia "Rex v. Lance Corporal Tsosane"
132\94". When this was returned to her after having been sent
for examination, it was torn. She destroyed it
and put the returned
articles in a white airmail envelope. She identified both her
handwriting and that of W\O Seutloali (since
deceased) on it. It was
produced before us, in chambers. Counsel were ad idem that it was the
exhibit that had been labelled "exh.2"
at the trial. It
contains three identical casings and one spent bullet. PW3 said that
it was W\O Seutloali who had written "three
and omitted reference to the projectile, on the envelope.
Trooper Putsoe, was the witness to whom the accused had handed his
pistol when he came to Thamae in response to the police
request. PW 4
attached to it a label, on which he had written "R.L.M.P. 39
exhibit number 12\97, Thamae,
murder; Rex v. Corporal Tsosane, O.B. Number 3\1\95". The serial
number on the pistol before court, was 34708. He
handed the exhibit
over to his senior, Sergeant Lechesa; received it again after it had
been tested, and produced it at the preparatory
examination. It was
Lechesa who had taken the weapon to Makoanyane for testing. Defence
counsel admitted during cross-examination
that the pistol was
licensed in the accused's name.
cross-examination defence counsel made much of the fact that the
pistol had two serial numbers, the less visible of the two being
preceded by a "B". On the label PW 4 had written merely
"34708". Defence counsel also elicited the fact that
had returned all his live ammunition to the accused; although there
was a dispute as to the actual number of bullets involved.
made it clear that both numbers on the firearm were the same, namely
34708, only one of the two being preceded by
a "B"; and
that PW 4 had been taught that the one that mattered was the bold one
on the pistol, which had no "B".
deposition of Detective Sergeant Lechesa who had since died, was read
into the record. Defence counsel acceded to the procedure
but made it
clear that he
admit the truth of everything said. That of course left him free to
challenge the truth of what had been sworn to, or the
weight to be
attached to the deposition, should the facts alleged be contradicted
by other testimony or in itself be improbable
for some or other
to the deposition, Lechesa had received from PW 3 the empty shells
and spent bullet which she had found at the scene on
1994. He later received the 9 mm pistol which the accused had handed
in, bearing serial number B34708. On 5 May 1995
he sent these to the
Forensic Laboratory at Makoanyane for examination. The articles in
court were the same as those he had originally
respectively the firearm handed in by the accused, and the objects
found at the scene by PW3.
'Mamotlatsi Tsosane, (wrongly listed as PW4 in the record), was
called to corroborate the evidence already before court, that
appellant had been involved in a dispute with the deceased over
property - "flats" - which Lefa had already rented
before his death, as she continued to do thereafter. Whether the
detail of her account of a family squabble is correct is neither
nor there. On the day the deceased died, she had seen the appellant"
at his home in the house peeping through the window".
now challenged: he was at Makoanyane barracks
police arrived, was fetched from there and came immediately, arriving
only after the corpses had been removed. The reaction
of the witness
was, "he is not telling the truth".
and most important witness was PW6, Lt. Col. John Tlali Telukhunoana.
He is and has been for almost eleven years employed
as an arms
examiner. He was permitted to refresh his memory from his records.
(Defence counsel in response to an inquiry by the
that he had no objection to this.) PW 6 testified that he had
received certain items from Sergeant Lechesa at
Thamae in 1995,
namely a 9 mm parabelleum pistol with serial number B34708, three 9
mm shells and a 9 mm spent bullet. He test-fired
the weapon which was
in good working condition and compared, under a microscope, the test
casings with the exhibit casings submitted
to him, taking notes
throughout. He took photographs of what he observed. His findings
were that the three cartridge cases had
been fired from the pistol
which had been handed to him. He was unable to positively identify
the spent bullet with the pistol.
He explained that as a result of
the manufacturing process and individual wear, each firearm causes
markings on the bullets it
fires which are distinguishable from the
bullets fired by all other weapons. He produced photographs from his
file on which he
demonstrated the match between an exhibit shell and
a test shell He had found that the three exhibit shells
matched one another and had therefore all been fired from the same
explained in detail what he had looked for, where, why, and how. He
described how he had used a "comparison microscope"
that he had taken a photograph through that instrument with the base
of an exhibit shell on the one side and that of the test-fired
on the other. Portion of the one when cut off and placed alongside
the cut-off section of the other, showed matching lines
mattered: in the centre circle of the bullet where the firing pin of
the weapon struck.
it clear that cartridge cases fired from each of three 9 mm pistols
would bear similar class characteristics, but inside
characteristics there would be individual characteristics that would
be peculiar to shells fired from each individual
firearm. His first
duty is to compare all the (here, three) exhibit shells found at a
particular scene with one another to find
out how many firearms had
been discharged at that particular site. Only then is comparison made
with his test-fired shell.
Detective Sergeant Lechesa who had brought the exhibits to his
laboratory on 5 May 1995, and collected them again on 17 September
counsel put it to him that hypothetically the police could themselves
manufactured evidence against the accused, instead of merely
submitting evidence they had bona fide obtained for examination
the witness. The witness (inevitably) conceded that all things are
possible, and that he has and can have no knowledge of the
exhibits submitted to him for examination, which he examines on the
assumption that they are what they purport to be.
Then Mr Ntlhoki
suggested that he needed the test shells, and more information, to
check whether the results of the tests and comparison
done by PW6 are
reliable. The reply was that nothing prevented an accused, unhappy
with the methods and findings of PW6, from having
his own tests and
comparisons done with test shells fired by his own expert.
counsel argued that the photograph taken through the twin, bridged
microscopes showed lines, black ones and white ones,
which did not
match, or join up with one another. There is no merit in this
argument. As PW6 explained those were original markings
bullets, not marks made by the firearm in the process of firing. Only
the microscopic ridges in the centre ring of the shell
the pin struck, were relevant.
material part of the judgment was preceded by a detailed recount of
what the respective witnesses had said and the arguments
before the trial come
defence counsel listed many things that according to him could have
been done and were not. As recorded (and as repeated
before us) most
of those propositions are untenable - for example, that the Crown
could and should have carried out investigations
similar firearms, if any, in the vicinity of the scene"; and
that the Crown should have proved that the accused
was in possession
of the firearm at the time of the commission of the offence.
of the court's decision amounts to the following :
actual findings in relation to the lay witnesses are bald, to put it
mildly : that
"the evidence of PW1, PW2, to some extent PW3 and PW5 was
largely based on the witnesses' beliefs", those beliefs not
being based on "solid existence of facts justifying unfavourable
inferences to be drawn against accused...... So far as this
concerned, the only proved facts were that 'Maselloane and her
companion were shot dead with spent cartridges lying around
bloodstains splattered all over".
therefore had to be determined "whether the expert evidence of
PW6 the police ballistic expert, has proved a case against
accused". The requisites for the acceptance of such evidence
should, according to Schwikkard - Principles of Evidence
p.87, be the following:
opinion of an expert is received whenever his skill is greater that
of the court
true criterion is whether the court can receive appreciable help
from the opinion of the witness
the issue is one of science or skill the expert can be asked the
very question which the court has to decide.
expert witness's evidence to be acceptable he must:-
or will not express an opinion on hypothetical facts, that is, facts
which have no bearing on the case or which cannot be
all other evidence in the case'.
evidence of PW6 was unreliable because his evidence did not accord
with the criteria suggested in Van der Westhuizen, Forensic
Criminalistics (2nd ed) at p.290.
his qualifications were accepted by the defence and not doubted by
the court, it found that the tests PW6 conducted "cannot
to be far-reaching".
judge ends by quoting S. v. Harris, 1965(4) S.A. 340(A) at 365B
as applicable to the present matter :
"Ogilvie Thompson, J.A, is quoted as saying :
'................In the ultimate analysis, the crucial issue of
appellant's criminal responsibility for his actions at the relevant
time is a matter to be determined not by the psychiatrist, but by the
court itself. In determining that issue the court... must
necessity have regard not only to the expert medical evidence but
also to all the other facts of the case, including.... the
his proven actions throughout the relevant period'.
then endorses the above statement as applying mutatis mutandis to a
held that the ballistic evidence stood alone, and lacked sufficiency.
It did not come up to the standards, either as regards
the testing of
the material or the graphic representation of the expert's findings,
set by Van der Westhuizen op at.
had therefore not proved its case beyond reasonable doubt.
argument of counsel for the accused before us, was by and large what
in the court a quo: there was no onus on the accused to prove that
Crown witnesses had given false evidence; the Crown
brought more evidence, such as the civil record of the litigation on
which a motive was sought to be established, but
then only as regards
the deceased, not Nkiane; the ballistic evidence fell short of the
required standard of proof, since inter
alia no test had been done in
regard to class characteristics; and insufficient material had been
placed before court to enable
it to be "verified or
counter-checked at its face value."
of argument, however, end with the correct proposition - which
supports that of Crown counsel and highlights the first
of the many
misdirections by the trial judge - namely that where a court is
dealing with circumstantial evidence it has to consider
cumulative effect of proven facts, and not each fact in isolation.
to the lay witnesses the trial court's approach amounted to a
misdirection. There was no adverse credibility finding against
those, but the content and effect of their evidence was totally
misconceived. It was not their opinions that were important,
right, or wrong. They testified as to facts on the strength of which
they formed certain opinions. The evidence of each as to
facts, often corroborated by another Crown witness, was neither
testimony nor found by the court to be unreliable. The trial court
was therefore not justified to disregarding their evidence.
counsel sets out in his heads allegations of fact not in dispute or
uncontradicted. Despite this largely constituting repetition,
list,and add to them :
deceased were found dead, apparently shot while they were sleeping
together on the property where the deceased lived.
police found three 9 mm shells and a spent bullet inside the flat,
the latter on the bed. PW 3 saw two gunshot wounds on the
the deceased, one in the chest of Nkiane.
door lock had been broken indicating forcible entry.
witnesses saw the accused on his adjoining property. One says he
was"peeping through the window". (He did not come,
others did, to see what the police were doing there.)
few days earlier, the accused had gone to Thamae police for advice
in regard to a quarrel with a woman about a site (which was
which the corpses were later found) saying he might end up "making
some mistakes" although the matter was already
in the hands of
the civil court.
police had earlier already mediated between the accused and the
accused came some weeks later to Thamae in response to a call by the
police. He had a pistol with him, which he handed over
request. It was his personal property and licensed in his name.
accused had refused permission for the deceased to be buried on his
property next to her deceased husband, Lefa. PW1 had in
heard the accused threaten to kill the deceased.
exhibits were labelled for identification purposes, kept in safe
custody by the police at Thamae, later taken by Lechesa and
over for ballistic examination.
was done on exhibits so labelled and received by PW6, and in due
course again fetched by Lechesa.
found that the three spent shells had been fired by the 9 mm pistol
of the accused.
accused offered no testimony denying that he had threatened to kill
the deceased, denying that he had been at home when the
discovered, explaining what sort of "mistake" he sought
the assistance of the police to prevent him
from making, and in whose hands his firearm had been at the time of
the murder - a matter peculiarly within his own knowledge.
court's finding on the evidence of PW6 was vitiated by a fundamental
misdirection. He rejected it on the strength of "facts"
properly placed before him but stated in writings made available to
him after the trial itself was over, which he accepted
authoritative without any opportunity to PW6 to agree with or dispute
what was set out by the respective authors.
leading formulation of Stratford J.A. in R v. Mofokeng, 1928 AD. 132
"The opinion of this writer of any writer on this subject or on
any subject was not and could not be evidence in the case.
It is only
permissible to read such opinions to a witness and to ask him whether
he agrees or disagrees with it. If he does the
opinion becomes the
evidence of the witness. If he does not, there is no
evidence..........supporting the opinion'1.
Hoffmann and Zeffert South African Law of Evidence (4th ed. 1988) 101
"The court is not entitled to treat the author of the book or
article as another witness and make use of passages to which
expert has not referred or which have not been put to him in cross
Joubert (ed) Law of South Africa Vol 9 (First Reissue) para 509 and
the cases referred to in footnote 4 on p. 343.
a quo moreover quite wrongly referred to ballistic tests inapplicable
to the circumstances of the present case. The trial
judge had no
reason to disregard the approach set out by Schwikkard, op. cit., in
the passage quoted earlier which he himself had
remaining question, then, is whether this court is satisfied beyond a
reasonable doubt that it was the accused who killed the
evidence of PW6 is vital in assessing whether the onus on the Crown
has been discharged. Despite all the dust thrown up by defence
counsel based on speculation : (e.g. Might exhibit 2 not have been
tampered with? Why did PW6 not investigate class differences,
more to identify the spent bullet?) the court
"should not speculate on the possible existence of matters upon
which there is no evidence, or the existence of which cannot
reasonably be inferred from the evidence" (R. v. Ndhlovu 1945
motivated his opinion that testing for class differences was
unnecessary, on the ground that it would be merely additional
meaningless work. Class characteristics are those common to bullets
fired from any 9 mm pistol of the same make as exh. 1. To suggest
that he should have analysed such would have been an exercise in
evidence was initially difficult to understand because the "chart"
(photograph) he explained to the trial court was
not before us. Once
that was produced, and counsel before us were agreed that the striata
he pointed out as matching were those
in the inside circle of metal,
surrounding the spot where the firing-pin strikes, it made sense.
Visual inspection reveals that
the ridges are random uneven ones, of
various widths and variously spaced, and that in the two portions of
the photograph reflecting
portion of the exhibit shell and the test
shell respectively, placed together, the ridges and spacings and
irregularities of the
one are continued exactly in the others.
bullet had not been recovered from either of the bodies. Tests on it
could have taken the Crown no further than the three
in my view no reason why the uncontradicted1 expert evidence of
should have been rejected.
listed earlier along with the evidence of PW6 exclude any other
reasonable inference save that the accused shot the deceased.
inference is consistent with all the proved facts. Since the deceased
and Nkiane were found dead naked in bed together they
must have been
shot at the same time, and so (where there is nothing to suggest that
more than one firearm was used) by the same
follows that the accused was wrongly acquitted. The order made by the
trial court should be set aside and replaced with one convicting
accused on both counts.
we cannot determine what an appropriate sentence would be. The matter
must be remitted to the trial court, where the accused
wish to adduce evidence and argue this issue. Since uncertainty must
have bedevilled his life since 1992 when he
was called in by the
police, it is in the interests of justice that the second and final
stage of the trial be not unduly delayed.
result, the court order is that the acquittal of the accused is set
found guilty on two counts of murder : on or about 14 December 1994,
of 'Maselloane Tsosane and of Lejoetsamang Nkiane. The
remitted to the High Court to impose an appropriate sentence after
hearing such evidence and argument as either party
may wish to place
: Ms Nku
Respondent: Mr Ntlhoki
on this 16th day of April 1999 at MASERU.
African Law (AfricanLII)
Ghana Law (GhaLII)
Laws of South Africa (Legislation)
Lesotho Law (LesLII)
Liberian Law (LiberLII)
Malawian Law (MalawiLII)
Namibian Law (NamibLII)
Nigerian Law (NigeriaLII)
Sierra Leone Law (SierraLII)
South African Law (SAFLII)
Seychelles Law (SeyLII)
Swaziland Law (SwaziLII)
Tanzania Law (TanzLII)
Ugandan Law (ULII)
Zambian Law (ZamLII)
Zimbabwean Law (ZimLII)
Commonwealth Countries' Law
LII of India
United States Law