C. OF A. (CRI) NO.8 OF 1997

IN THE COURT OF APPEAL OF LESOTHO

In the matter between:

REX

v

SEHLOHO JOSEPH MAPHERI

Held at:

MASERU

Coram: Steyn P.

Browde AJA.

Kheola CJ.

JUDGMENT

STEYN P:

This is an appeal by the Crown against a decision by the High Court (Mofolo J presiding) in which it found the Respondent (hereinafter referred to as the accused) not guilty on a charge of murder and acquitted him. The crown has appealed against this decision on the ground that "the prosecution had proved the guilt of the Respondent beyond a reasonable doubt...."

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It is common cause that the deceased died as a result of a stab wound in the chest. The principal issue before the High Court was whether it was proved that the accused was the person who stabbed the deceased and, if so, whether he was guilty of murder or of any lesser offence.

For this purpose the crown introduced evidence via two routes. The first was by virtue of a reliance on certain admissions made on behalf of the accused at his trial. The second was via certain viva voce evidence recorded at the hearing before the High Court.

The crown called a W.O. Lelala who gave the viva voce evidence which is set out below.

A preparatory examination had been held. After Lelala's evidence had been adduced, the evidence of two witnesses, being PW1 and PW4 at the preparatory examination, was read into the record pursuant to an admission made by counsel for the accused on his behalf. Neither of these two witnesses implicated the accused as the person who stabbed the deceased. The court also recorded that counsel for the accused admitted "the post-mortem report and the medical report" both of which were read into the record.

The hearing was then postponed to a later date. The trial Judge says in his judgment that on this latter date "Mr Lesuthu (counsel for the accused) admitted

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the evidence of PW2, PW3 and 5 and the depositions having been read into the record were admitted as evidence". This procedure was adopted with the objective of "converting" these depositions into admissions in terms of Sec. 273(1) of the Criminal

Procedure and Evidence Act (the Act).

P.W.2 in his deposition described a drunken brawl which had taken place on and outside a bus during which the deceased had been stabbed. However the witness does not in his deposition identify the deceased's assailant. P.W.3's evidence at the preparatory examination also purported to describe the events (I say purported, because the evidence like that of P.W.I was poorly recorded, confusing and contradictory). The witness does however state clearly and unequivocally that she saw the accused stab the deceased "on the chest with the knife". She (the witness) had seen the deceased carrying the knife at the entrance of the vehicle, and she described the knife as one with "blades on either side".

In his deposition P.W.4 also describes the events. Concerning the assault on the deceased, the witness says the following: "When deceased was straightening from Violet" (a woman who had been involved in the brawl that took place), "accused stabbed him into the chest". However his description of the events differs in material respects from that of P.W.3. The narrative of each one of the witnesses is full of contradictions and the details in their respective versions of the events are not only confusing but in conflict with one another.

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It is clear from the evidence above that many people were armed, with knives, a knob kierrie and a "pick shaft".

However on an acceptance of the depositions as proof of the facts alleged therein, it would have been established that it was the accused who had stabbed the deceased on the chest with a knife. The admitted medical evidence was to the effect that the deceased had died as a result of such a stab wound.

The oral evidence referred to above was given by the witness W.O. Lelala referred to above. He said that he saw the accused only after the events described above. He had been assaulted and the police officer interviewed him upon his discharge from hospital. He cautioned him and asked him for an explanation about the knife Exh.l. The accused responded by saying that the knife was the one "he had used to stab the deceased".

In cross-examination counsel for the accused asked the witness: "Did you ask the accused why he stabbed/killed deceased". The answer was the following: "Yes. He said he didn't know since he was drunk".

The record then reads as follows:

Counsel: "Accused will deny giving you such an explanation".

Answer: "He will be wrong".

Counsel: "He will deny that the knife is his."

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Reply : "He said it was his".

Counsel: "He will deny stabbing deceased."

Answer: "He will be wrong because he told me it was the knife he used to stab deceased." (emphasis added)

This was the crown case. The accused testified. He admitted having been on the bus. He was seriously assaulted on the bus and "found" himself in hospital. He denied ever stabbing anyone neither did he have any knowledge of the knife. He alleged that he was falsely implicated.

In cross-examination it was put to him that his evidence was in conflict with the admissions made on his behalf. He then made it clear that he did not admit such evidence and that the admissions were not made on his instructions. He assented to the proposition put to him by Crown Counsel that his legal representative had admitted evidence without any instructions from him.

It is clear from the presiding Judge's reasons for judgment that there was considerably more cross-examination directed at the accused than appeared on the court's record before us on appeal. According to the record as transcribed, the cross-examination was confined to questioning him on why he made such admissions. When the accused persisted in his denial of the evidence admitted by his counsel, Ms Nku who appeared for the Crown said that: "I am leaving everything to the court since you are changing your evidence and you are

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wasting everybody's time".

According to the judgment, the following additional evidence was elicited in cross-examination:

"(In) Cross-examination by Ms. Nku for the Crown the accused said he did not know how it came that so many people came to court to say he had stabbed somebody nor could he say why these people were picking on him. As for Sgt. Lelala (P.W.I) he could not say why he says he gave him a knife for this was untrue. He had not known deceased. He first heard of the deceased on being arrested because it was said he had killed somebody. He reiterates he does not take liquor to date. It was not true he was drinking from a quart. He says it is wrong to drink because it interferes with ones duties. Because he does not take liquor he was sober all the time. He was not aware that 'Mapeete (P.W.2 at the P.E. and P.W.3 herein) had said he had stabbed the deceased and thereafter sat at the steering wheel. He had not seen accused straightening. Nobody had ever said to him why do you stab me nor did he go on drinking beer. He says he is not aware that evidence of 'Mapeete (P.W.2 at the P.E.) was admitted.

The witness further testified under cross-examination that ever since

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being discharged from hospital he had incessant headaches; he had also developed falling sickness; his headaches come before or after falling. He denies that his headaches are caused by lying. He says the evidence that he has stabbed has been admitted.

By Assessor Mr. Ramoseme: He had not taken liquor at any time. When the fighting took place he was in the coaster and he was in the coaster when he was assaulted.

By Assessor Mr. Khoboko: He was from Zebedia, boarded the bus at 'Makhoroana bound for Mapoteng where he lives. He was assaulted whilst in the bus. At Mapoteng he went there to help his uncle with odd jobs like loading and off-loading sand; they used a tractor for the purpose. He was sending messages home to Mapoteng. At Zebedia he had not had a tiff with anybody and he was surprised when people fell upon him and assaulted him. This had taken him much aback. He had no time to report to his chief for he was in hospital and from there to the police station in Teyateyaneng.

By Court: He says he cannot say whether there was any reason to stab deceased nor does he know why they said he had stabbed deceased. He agrees he was see in in the coaster."

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None of this evidence appears in the record. However, in view of the conclusions we have come to as a matter of law, it is not necessary to decide whether the judge's record of this evidence can be accepted for the purpose of deciding this matter.

The court a quo analysed all the evidence adduced before it. Quite rightly it pointed to the numerous contradictions, inconsistencies and unsatisfactory features of the evidence of the witnesses whose evidence had been read into the record. The court says that it is "baffled" by this aspect of the matter and could find no explanation "why these witnesses are not saying the same thing".

The learned Judge then comes to the conclusion that the "Crown evidence is conflicting in material respects and this Court is not prepared to take the risk of believing it in all respects".

The Court then proceeds to deal with the weight to be attached to the admissions made on behalf of the accused. It refers to "the provisions of Section 273(1) of the Act. The presiding Judge analyses some of the South African cases dealing with a similar provision in their Criminal Code. The court then comments as follows:

"S. v. Mjoli and Another, 1981 (3) S.A. 1233 at 1247 A - B per Viljoen, J.A. is quoted as authority to the effect that 'sufficient proof has been judicially interpreted not to mean 'conclusive

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proof thought he same case at 1247 - B - C it is said an admission formally made by, or on behalf of, an accused, is that an admitted fact 'virtually becomes conclusive proof against him—and any effort by him or on his behalf to adduce evidence countervailing such fact would be inconsistent with his having made the admission'. With respect, this would depend on whether the evidence was admitted 'as proof of the truth of the contents therein' and whether the defence had admitted it as such. Moreover, the question would also arise as to its uncontantious and unequivocal nature."

The learned Judge goes on to say:

"Admissions (made in) evidence can be seen as a two-wedged (sic) sword likely to slash the homologator or the crown. Ms Nku has bitterly complained that by admitting the evidence and turning midstream to deny it or as was said above countervailing the admission, this has placed the crown in an invidious position for the crown is incapacitated to react to accused's stance and therefore the crown was prejudiced. I could not disagree more for in its best interest and mindful of the fact that it behoved the crown to prove its case beyond reasonable doubt, the crown could have preferred leading evidence other than timidly succumbing to the dictates of the defence."

The Court then concludes as follows:

"There was considerable melee at the bus stop and there were too many flaws in the Crown evidence resulting in too many 'buts' and 'ifs' making it dangerous and unsafe to convict quite apart from the fact that the admitted evidence is in no way conducive to a verdict of guilty.

This court finds it as a fact that it cannot be said that having regard

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to the circumstances of this case it can be said that the Crown has proved its case beyond reasonable doubt. Accordingly, the accused is found not guilty, he is acquitted and discharged."

Ms Nku in her argument before us, challenged the correctness of this finding. She contended that the Court a quo erred in its approach to the evaluation of the weight to be attached to admissions made by the accused and its questioning of such evidence being proof of the truth of the contents thereof. She was particularly concerned that admissions deliberately made could unilaterally be withdrawn and that an accused could with impunity contradict such an admission when testifying.

She also contended that the evidence was clear in material respects -particularly the evidence that sought to establish that the accused stabbed the deceased.

Mr Lesuthu submitted that by admitting the evidence the accused did no more than admitting "that (the) witnesses who were to be called were going to say exactly what they said at the preparatory examination. By such an admission we did not admit to the truth of the depositions".

If what counsel admitted on behalf of his client were "admissions" this contention cannot be sustained. If an admission is made freely and voluntarily any fact so admitted is in terms of Sec. 273 "sufficient evidence of such fact".

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However the procedure adopted by the crown, facilitated by defence counsel and accepted by the court, in reading the evidence into the record in an attempt to convert such evidence into admissions in terms of Sec.273( 1) appears to be not only inappropriate and ill-advised but may also not have achieved the desired objective. I say this for the following reasons:

Sec. 173(1) of the Act provides as follows:

"Every criminal trial shall take place, and the witnesses shall, save as is otherwise expressly provided by this Act or any other law, give their evidence viva voce, in open court in the presence of the accused unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable, in which event the court may order him to be removed and may direct the trial to proceed in his absence."

This section is identical to the provisions of Sec. 156(1) of the then (prior to 1977) operational Criminal Code in South Africa. The Court of Appeal in South Africa in S v Nzuza 1963(3) 631 (A) specifically held that the provisions of this section are peremptory. The court says that the "...section decrees that witnesses shall give their evidence viva voce and (that) the only exceptions made are those expressly allowed by statute. It follows that the appellant could not by his consent validate the invalid procedure adopted by counsel for the prosecution in the present case". (By reading the depositions at the preparatory examination into the record).

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This approach was subsequently endorsed by the Appeal Court in South Africa in S. v. Mokgeledi 1968(4) 335 (A). At p.337 [H], Botha JA says the following in this regard:

"Though the admission of a fact made by or on behalf of an accused person is in terms of sec. 284 (1) of Act 56 of 1955 sufficient proof (see R. v V., 1958 (3) S.A. 474 (G.W.) At p. 479) of that fact in criminal proceedings, it can never in such proceedings be evidence, which in terms of sec. 156(1) of the Act is required to be given viva voce by th witnesses in open court in the presence of the accused. (S. V. Nzuza, 1963 (3) S.A. 631 (A.D.) At pp. 634, 635)."

In 5. v Serobe 1968(4) SA 420 (A) and at p.426 [A] - [F] the same Court held as follows:

"It is, of course, clear that, save as is otherwise expressly provided by Act 56 of 1955 (see for example sees. 243 and 284 (1)), evidence in a criminal trial is, in terms of sec. 156 (1), required to be given by the witnesses viva voce, and that the evidence of a witness taken against an accused person at a preparatory examination is not admissible in evidence against him at a subsequent trial, even with his consent. (S. V. Nzuza, 1963 (3) S.A. 631 (A.D.)). The evidence given against the appellants at the preparatory examination by Robert Tsimane and the other witnesses referred to above, could not, therefore, have been properly admitted as evidence against them, even with their consent, at the subsequent trial before the Court a quo.

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There can, however, in my view be no objection to the admission, in terms of sec. 284 (1) of Act 56 of 1955, of the facts recorded in the evidence of a witness given against the accused person at a preparatory examination, as proof of those facts, though not as evidence thereof. There is nothing in Act 56 of 1955 which precludes such a procedure, nor does the judgment in Nzuza's case, supra, disapprove thereof. What that judgment disapproves of, is the admission of evidence given at a preparatory examination as evidence at the subsequent trial, otherwise than in accordance with the provisions of Act 56 of 1955. (See p. 635 of the report). Care should, however, be taken in regard to the form in which the facts recorded in the evidence of a witness given at a preparatory examination is admitted at the trial in terms of sec. 284 (1) as proof of those facts, for if the evidence given at the preparatory examination is by consent admitted at the trial, albeit for that purpose only, the procedure would be open to the objection that the evidence given at the preparatory examination was in substance simply admitted as evidence at the trial in conflict with the provisions of Act 56 of 1955. In order to prevent confusion and uncertainty as to he procedure actually adopted, and to obviate such an objection, it would be desirable in all such cases to record the facts admitted in terms of sec. 284 (1) without specific reference to the evidence given at the preparatory examination."

See also S v Thomo and Others, 1969 (1) SA 385 (A) where at 387 [F] -388 [F] Wessels JA says the following:

"In the preceding paragraph I referred to the fact that certain facts were "admitted" at the trial. In terms of sec. 284 (1) of the Criminal Code an accused may "admit any fact relevant to the issue" and such admission "shall be sufficient evidence of that fact". Since the purpose of making admissions of facts is to dispense with the need

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to call evidence to prove those facts, the reference to "evidence" is inappropriate unless it is understood to mean "proof.

The Court then analyses the evidence and concludes as follows: "Unless care is taken in the precise formulation of admissions of relevant facts in terms of sec. 284. uncertainty could arise as to what fact an admission was intended to relate to. The apparently increasing practice of recording admissions in terms of sec. 284 by "reading into the record" evidence given at a preparatory examination and accepting that as "proof of the contents thereof is to be discouraged (As to this, see S. v. Serobe and Another, 1968 (4) S.A.420(A.D.)Atp.426C-F). (my underlining) However, in the present case the appeal was argued on the basis that the defence intended making admissions of the relevant facts to which the witness's evidence related, and I need, therefore, say no more about the matter."

Like the court below I could find no provision in the Act which - unlike in South Africa - has sought to validate the procedure of converting written depositions made at a preparatory examination into "evidence" at a subsequent trial before a superior court. Nor has counsel submitted that there are such legislative provisions on the statute book.

It appears therefore, on an acceptance of the correctness of the South African authorities referred to above, that the only manner in which facts recorded as evidence at a preparatory examination can be admissible at a subsequent trial is, if those facts are recorded as facts admitted, without specific

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reference to the evidence given at the preparatory examination. (See S. v. Serobe above at 426).

However that may be, this case is a prime example of the inadvisability, if not the illegality, of the procedure adopted.

The irregularity of the proceedings was compounded by the fact that counsel for the defence must have intended, when admitting the evidence of witnesses who had testified at the preparatory examination that the accused had stabbed the deceased, to convey to his colleague and to the court that this fact was not in dispute. It was of course open to the accused to give evidence that the stabbing took place in e.g. self-defence or in the defence of the life of another passenger on the bus. It was however quite improper to admit the depositions knowing that your client would contradict a key element common to both statements involved.

Therefore, once it appeared that there was no intention to admit this vital fact, the trial Court should in my view have enquired as to whether the decision to admit the evidence at the preparatory examination was indeed made voluntarily by the accused and was made in accordance with his instruction to his Counsel. To have proceeded with the trial without any such enquiry was in my view irregular.

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Mr Lesuthu in the course of his oral argument refered us to a decision of the High Court in R v Foromane (unreported), reference CRI/T/73/88 dated the 26th of June, 1989.

In that case, as in the present case, all the depositions made at the preparatory examination were admitted by the defence. These admissions were then accepted by the Crown. The Court said that in terms of Section 273(1) of the Act these "depositions became evidence..,.". The Court then went on to say the following:

"It will be remembered that according to the crown witnesses' depositions, which were admitted by the accused, at the time the accused stabbed the deceased, the latter was just sitting on his stool and not in any way attacking him. It was contended in argument that once they had been accepted by the crown, the accused's admissions formed part of evidence and become binding on the accused person who could not be allowed to resile from them."

"I am unable to agree with this contention which is dangerously too wide in its implications. The depositions admitted by an accused person may include statements which are contradictory of one another. As it was pointed out by the Court of Appeal in Bernard Sepanya vs Rex - C. of A. (CRI) No. 3 of 1977 (unreported) at p.6:

"It is, of course, quite clear that statements which are contradictory of one another cannot both be true...in the circumstances. The appellant's counsel...intended to admit...the truth of all the evidence........other than any statements made thereat which were contradictory to one another."

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The learned Judge then says:

"True enough, in the present case there is no question of contradictory statements in the depositions initially admitted by the accused. What happened is that after he had admitted all the depositions made at the Preparatory Examination proceedings, the accused went into the witness box and testified on oath that at the time he stabbed the deceased, the latter was attacking him with a stick. He was, so to speak, withdrawing that portion of the admissions which stated that at the time he stabbed the deceased the latter was sitting in his stool and not in any way attacking him."

The learned Judge then referred to a sentence from the 2nd Ed. of Hoffmann and Zeffert The South African Law of Evidence in which the learned authors say:

"There is no authority dealing with the circumstances in which formal admissions made in Criminal proceedings may be withdrawn. In principle there seems no reason why this should not be allowed at any time before verdict...."

The conclusion which the court came to is the following:

"It seems to me, therefore, where the accused, having admitted the depositions made at the Preparatory Examination, goes into the

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witness box and, so to speak, withdraws part of the admissions he has made by denying the correctness thereof he is, on principle, entitled to do so and the court cannot simply dismiss him on the ground that he initially admitted all the depositions made at the Preparatory Examination."

With respect, I am constrained to disagree with this conclusion.

In the first place the Court of Appeal in the Sepanya case was clearly dealing with a situation where contradictory statements are made and it is not clear which one of the statements had been admitted. That was not the case in R v Foromane above. The same is true in the present case. The statement that the deceased was stabbed in the chest by the accused is not contradicted by any of the witnesses whose depositions were read into the record.

In the latest Edition of their work The South African Law of Evidence (4th ed.),the authors say the following at p.173:

"Formal admissions are made in order to dispense with the need for evidence on the matters which they cover and are binding on their maker."

At p.433 the learned authors refer to S v Nzuza (supra) and point to the

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introduction of Sec. 141(3)(b) in the Criminal Code in south Africa the effect of which was to neutralize the impact of the Nzuza decision.

They then go on to say:

"A formal admission is made for the purposes of particular proceedings and is only binding in those proceedings. But it is a statement made by or on behalf of the accused, and can therefore be proved against him in other proceedings like any other statement he may have made. The difference is that in the proceedings in which it was made the formal admission is conclusive, but in other proceedings it is open to the accused to explain it away. The same is true of a formal admission which has been withdrawn. The fact that such a statement was made remains an item of evidence against the accused which the court is entitled to consider, although it may carry little or no weight if the accused has a satisfactory explanation for why it was made."

Clearly an accused can withdraw an admission formally made and can do so if he can show that it was not freely and voluntarily made or where e.g. the admission is equivocal and ambiguous and uncertainty arises as to what was admitted. However, an admission precisely formulated and formally made by an accused or on his instructions, and which is clear and unambiguous, is binding on such an accused and cannot - in the absence of an acceptable explanation - be withdrawn.

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Insofar as the judgments in the High Court in this matter and in R v Foromane are to be read as holding otherwise, they were wrongly decided.

In S. v. Nzuza (1) cited above - (and see also S. v. Nzuza(2) 1962(4) 856(A)) - it was held that the proceedings conducted in the same manner as in this case, were irregular. In this regard, Hoexter J.A. says the following p.635 (H) to 636 (B):

"In the result the evidence given at the preparatory examination was not evidence at the trial and the appellant was, in effect, convicted on no evidence at all. The appeal must accordingly be allowed and the conviction and sentence set aside.

Counsel for the State argued strenuously that the matter should be remitted to the trial Court to be tried afresh. In my opinion the present case is similar to that of S. v. Moodie 1961 (4) S.A. 752 (A.D.), in that there has been so gross a departure from established rules of procedure that the appellant has not been properly tried. Indeed, in the present case the appellant was, in effect, never tried at all. This is an irregularity of such a nature that it is per se a failure of justice. It follows from the decision in S. v. Moodie, (1962 (1) S.A. 587 (A.D.), that it is open to the State to re-indict the appellant, and I do not think that in such a case the Court ought, assuming that it could, to remit the matter for trial afresh. It is for the State to decide whether it will re­indict the appellant."

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However that may be, and in view of the fact that the correctness of this decision and others to the same effect were - within the context of the law and practice in Lesotho - not argued before us, it would be inappropriate for us to base our decision on a finding that because there had been a purported non­compliance with the provisions of Sec. 173 of the Act (evidence must be given viva voce in open court), the proceedings were irregular and that no trial had in fact taken place.

What we do find in this regard is the following:

1. In view of the nature of the charge (murder), it was inadvisable and indeed irregular to attempt to try the accused on the basis of depositions made by the witnesses at the preparatory examination untested by cross-examination. Murder is an offence that comprehends proof of an intention to kill. Moreover the presence or absence of extenuating circumstances often becomes evident from an in-depth investigation of the circumstances which surround the commission of the offence. Justice cannot be done fairly pursuant to the adoption of such a methodology.

2. There was no attempt to define with any clarity what facts

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irregular to proceed with the trial without determining this issue. The Court had no certainty that the admission made -whatever their legal significance may have been - were indeed made on the instructions of the accused and that the fact that he had stabbed the deceased was not common cause.

6. This Court is accordingly of the view that:

1. Because of the circumstances set out under points 1 to 5 above there has been a gross departure from the established rules of procedure and that the accused was not properly tried. Indeed Ms Nku conceded that the proceedings were irregular.

2. The irregularity was of such a nature that it per se amounted to a failure of justice.

3. The appeal accordingly succeeds to the extent that the verdict of not guilty and the acquittal of the accused is set aside.

4. However, the Court records that a mistrial occurred and that the accused is accordingly discharged.

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In view of the fact that 10 years has elapsed since the commission of the offence the practicality of the continued prosecution of the accused must be open to serious question. The crown will no doubt take this factor into account when considering its position.

PRESIDENT OF THE COURT OF APPEAL

J. BROWDE

ACTING JUDGE OF APPEAL

J.L. KHEOLA

CHIEF JUSTICE

Delivered at MASERU This 15th day of October, 1999.