C. OF A
(CRI)5 OF 2000
read by Ramodibedi JA
DIRECTOR OF PUBLIC PROSECUTIONS v MOSUOE MOTEANE
the reasons for the dismissal of this appeal.
accused shot and killed one person and shot and wounded another. He
was charged with murder and attempted murder. He raised
of sane automatism. He was found not guilty and discharged. The
Director of Public Prosecutions appealed to this Court
judgment prepared by my brother Friedman with which my brother
Gauntlett and I concur, the requisites for a defence of this
dealt with. On the evidence we came to the conclusion that the
prosecution had not succeeded in discharging the onus resting
to prove that at the time of the commission of these offences the
accused was criminally responsible for his actions.
the appeal was dismissed.
C. of A.
(CRI) NO.5 OF 2000
COURT OF APPEAL OF LESOTHO
OF PUBLIC PROSECUTIONS APPELLANT
Moteane (hereafter referred to as the accused) was charged in the
High Court before Lehohla J. and assessors with one count
and one count of attempted murder. The first count related to the
shooting and killing of 'Muso Moshoeshoe (the deceased)
second to the shooting and wounding
Lerotholi (PW1). Both offences were alleged to have been committed on
26 December 1995 . The accused pleaded not guilty
to both charges. He
was found not guilty and discharged. The Director of Public
Prosecutions appealed against the accused's acquittal.
Mr. Griffiths, who appeared for the Crown, we dismissed the appeal
and indicated reasons would be furnished later.
These are the
accused did not dispute that he had shot and killed the deceased and
that he had shot and wounded PW1. He raised the defence
that at the
time of the shooting there was a disintegration of his personality of
a temporary nature as a result of which he acted
unable to distinguish between right and wrong.
which gave rise to the shootings are largely common cause. They may
be summarised as follows. The accused is employed
by the Ministry of
Education as Director of the Thaba Tseka Technical Institute. He also
owns a bakery business. He obtained the
B Ed degree at the University
College in Cardiff Wales in 1983 and the MSc. Degree at the Tuskegee
University in Alabama, USA in
1989. He is married and has four
children, two daughters and two sons. His elder daughter, Sekamotho,
was born on 9 July 1979.
In December 1995 she was
time prior to the shooting, the accused had heard rumours and had
reason to believe that the deceased, who was a married
man in his
thirties, was having an affair with Sekamotho.
during the first half of 1995 the accused was told by a neighbour
that while he was away from home - his duties necessitated
travelling a great deal - Sekamotho was on a few occasions seen with
the deceased in his motor car which was parked in front
accused's house. This the accused found very disturbing. Sekamotho
was at a boarding school. The accused arranged with his
as the accused lived far from his school, Sekamotho could spend her
home week-ends with the accused's brother at
Maseru West. One
afternoon the accused happened to be in Maseru and decided to visit
his brother and Sekamotho.
drove into the road in which his brother lived he saw a vehicle
parked in front of the gate. As he approached, he saw Sekamotho
talking to the driver. As he pulled closer the vehicle shot off at
high speed. The accused asked Sekamotho who the driver was.
replied that it was a stranger who was seeking directions. She
appeared to be very nervous. The accused followed the vehicle
it two blocks away. He recognised the driver; it was the deceased.
The accused parked his vehicle next to that of the
deceased. He spoke
to the deceased and appealed to him to stop having an affair with his
daughter who was under age and did not
yet have a career. The
deceased said he was sorry.
accused then returned to his brother's house where he told Sekamotho
that he had found the person who she said had been seeking
and that it was the deceased. Sekamotho admitted that she was having
a love affair with the deceased and that he had
threatened to shoot
her if she terminated the relationship.
accused was very upset and decided to speak to the deceased's
employers. The deceased was a member of the Royal Lesotho Mounted
Police and was stationed at the Thaba-Tseka Police Post. The accused
accordingly approached the head of the Thaba-Tseka Police
was sympathetic and advised the accused to report back to him should
he see signs of the affair continuing.
incident occurred which caused the accused concern. The accused's
nephew (his younger brother's son) who was 17 years
of age and who
was apparently friendly with the deceased assisted the latter to
by telephone. When this was reported to the accused by the boy's
mother, the accused confronted Sekamotho about the telephone
She made the excuse that the conversation related to an enquiry about
some girls in town. The accused was disturbed as he
the affair between the deceased and his daughter was continuing.
the winter vacation Sekamotho worked part time in the accused's
bakery. One day he discovered that she had allegedly gone
a loaf of bread at the house of a friend of her's which was a venue
where Sekamotho was meeting the deceased. The accused
Sekamotho's friend's parents who undertook to ask their daughter to
desist from facilitating meetings between the deceased
affair was taking its toll on Sekamotho whose June 1995 school report
was very poor compared with her earlier reports.
midnight on 25 December 1995 accused's younger daughter woke him and
reported to him that Sekamotho and the domestic help
who shared a
room with her were missing. He found the front door unlocked and saw
that they had left. He locked the door. At about
3 a.m. on 26
December 1995 he heard someone
the front door. He went to check who it was and saw Sekamotho and the
domestic help running away. The accused went into Sekamotho's
where he found an album containing photographs of the deceased.
accused asked his elder son to assist him to find Sekamotho. His son
told him that he had heard from a neighbour that Sekamotho
seen with the deceased at a party and also at a bar. The accused was
very upset at hearing this. He took the album and,
deciding to call
on the deputy commander of the police who was well known to him, he
set out in his motor car. In the road he encountered
a police vehicle
approaching. It was being driven by the deceased. PW1 was a passenger
in the vehicle. He stopped and flagged the
police vehicle to stop. He
approached the police vehicle with the album in his hand and asked
the deceased how the album came to
be in his (accused's) house. The
deceased just looked at him and giggled.
evidence in chief (PW4) the accused testified that he became
infuriated with the deceased. He asked the deceased: "where
my child". Again the deceased just giggled. The accused
testified that at that stage he had a complete black out and does
remember what happened. He stated that he hazily remembers cocking
his gun and hazily recalls the passenger in the police
opening the door and getting out. He also hazily recalls firing the
first shot but nothing thereafter. The next thing he
recalls is that
he asked PW1 who "had stepped next to the vehicle", to
accompany him to the charge office "because
now when everything
dawned I assumed that shot must have caused the accident." PW1
did not respond. The accused went back
to his vehicle and drove to
the charge office. Finally, in his evidence in chief, the accused
testified that he recalls that after
the deceased had giggled, the
deceased dropped his left hand from the steering wheel. The accused
construed this as an aggressive
act. At that stage he cocked his gun.
to the post mortem report the deceased died of a gunshot wound to the
chest. Four gunshot entry wounds were found on the
body. PW1 received
one gunshot wound in his buttock.
were only two issues on which the accused's evidence was in conflict
with that led by the Crown. The first was in relation
to a remark
which the accused is alleged to have made after the shooting. PW1
testified that after the accused had shot the deceased,
said: "Father Moteane, you have killed me for something which
you don't know." The accused replied "I
told you I will
kill you". The accused stated he had no recollection of having
uttered those words
accordingly denied that he had done so.
second was in regard to where PW1 was standing when the accused asked
him to accompany him to the charge office. The accused
PW1 was standing next to the rear of the police vehicle whereas PW1
testified that he had moved a distance of approximately
from the vehicle and that he was not near the vehicle when he was
asked by the accused to accompany him. On both these
issues the trial
court accepted PWl's evidence and rejected that of the accused.
defence called a psychologist, Mrs Ester Maria Redelinghuys (DW2).
She consulted with the accused and conducted the necessary
psychological tests "in order to establish his psychological
profile at the time of the shooting". Mrs Redelinghuys expressed
the view that at the time of the shooting the accused was suffering
from a disintegration of the personality which, in psychological
terms, is known as decompensation and which is the same as
automatism. According to Mrs Redelinghuys, the accused was, in that
state, incapable of distinguishing right and wrong.
this conclusion on the continuous and excessive stress
by the accused, commencing with the extramarital affair which his
wife had some years back and which affected him emotionally
started the stressful situation in the family environment. This was
followed by the continuous problems encountered in the
between Sekamotho and the deceased. The deceased's giggling in
response to the accused's questions concerning the
album and the
whereabouts of his daughter, led to the accused's uncontrolled
held liable for his deeds an accused must at the time of the offence
be criminally responsible. To be criminally responsible
mental faculties must be such that he can justifiably be blamed for
his conduct. The recognised characteristics of
ability to distinguish between right and wrong;
ability to act according to that distinction by possessing the
necessary willpower to resist the temptation to act wrongfully.
of these two characteristic is absent, the accused cannot be held
See S v
Laubscher 1988 (1) SA 163 (A) at 166.
trite law that a voluntary act is an essential element of criminal
responsibility. Where the commission of such an act is
put in issue
on the ground that the absence of voluntariness was attributable to a
cause other than mental pathology, the onus
is on the Crown to
establish that element beyond reasonable doubt.
See S v
Henry 1991 (1) SACR 13 (A) at 19 h-j.
the onus is on the Crown to show that the accused had the necessary
capacity, where an accused person relies on non-pathological
in support of a defence of criminal incapacity, he is required to lay
a factual foundation for it in evidence, supplemented
to create at
least a reasonable doubt as to whether he had that mental capacity.
Nursingh 1995 (2) SACR 331 (D) at 334 b-c.
present case the accused's legal representative informed the court at
the stage when the accused pleaded to the charges,
what the defence
defence case was closed, the Crown requested and was given an
adjournment in order to consult with or call an expert witness
rebut the expert testimony of Mrs Redelinghuys. However, at the
resumed hearing Crown counsel informed the court that the Crown
not intend to lead any such evidence.
court, in a careful analysis of the evidence, accepted the accused's
evidence of the "black out". The trial
court also accepted
Mrs Redelinghuys' evidence that the accused was, at the time of the
shooting, because of the disintegration
of his personality, unable to
distinguish right from wrong and that the could not have formed the
necessary intent as a consequence
of a temporary mental breakdown.
original notice of appeal by the Crown was directed at what were
described as misdirections by the trial court in regard to
acceptance of the accused's version. At the hearing of the appeal Mr.
Griffiths applied for an amendment to the grounds of
appeal by the
addition of a ground to the effect that if the accused acted under a
form of sane automatism, this should have been
regarded as a form of
temporary insanity and the accused should have been dealt with
heads of argument in support of this ground of appeal Mr Griffiths
sought to rely on an unreported judgment of Maqutu J.
in The Crown v
Chobokoane 16 August 2000 CRI/T/90/99. In the course of his judgment
in that case Maqutu J, after referring to both
South African and
English cases dealing with the defence of automatism, stated at page
27 of the typed judgment: "It should
now be clear that
personality decompensation falls under insanity according to the
current legal set-up in Lesotho."
statement is open to criticism on two grounds. Firstly it is not
supported by the English cases on which the learned judge
to base it. In Bratty v. Attorney General for Northern Ireland 
AC 286 (PC) 407, the Privy Council accepted that
if there was a doubt
whether or not the accused acted in a state of automatism, he had to
be acquitted. Similarly in Rv Sullivan
[ 1983] 2 All ER 673 (HL) the
House of Lords recognised the possibility of a defence of non-insane
automatism "for which the
proper verdict would be a verdict of
whatever view was expressed by the learned judge concerning the
correct verdict when a defence of automatism was raised,
obiter. The accused's evidence that he had acted in a state of
automatism was rejected on the facts.
the English courts tended to look more strictly at the defence of
sane automatism than the South African courts, in both
systems it is
essentially a question of fact as to whether the accused was acting
in a state of sane automatism.
In S v
Henry supra Scott JA, writing for the Supreme Court of Appeal in
South Africa, pointed out that where the commission of a
is put in issue on the ground that the absence of voluntariness is
put in issue on the ground that the absence of
attributable to a cause other than mental pathology, the onus is on
the prosecution to establish this element
beyond reasonable doubt.
The learned judge went on to point out that a defence such as
non-pathological automatism requires to
be carefully scrutinised and
"His (the accused's) ipse dixit to the effect that his act was
involuntarily and unconsciously committed must.... be weighed
considered in the light of all the circumstances and particularly
against the alleged criminal conduct viewed objectively."
no substantial difference between this approach and that of the
English courts and I hold that this is the correct test
to apply in
Lesotho. Mr. Griffiths very fairly conceded that this was so.
with the evidence, Mr. Griffiths argued, however, that there were
aspects of the accused's evidence which tended to show
that he was
aware of that he was doing. In this regard he relied strongly on the
finding of the trial court that immediately after
the shooting the
accused said to the deceased: "I told you I would kill you."
He submitted that this finding detracted
from the evidence of Mrs
Redelinghuys, whose findings were based on the version furnished by
the accused. The difficulty with this
criticism of her evidence is
that although the Crown's representative at the trial cross- examined
Mrs Redelinghuys extensively,
no cross -examination was directed at
this aspect of the accused's evidence, nor, for that matter, at the
second aspect of his
evidence which was rejected.
Griffiths submitted, further, that the accused's evidence of the
manner in which he cocked his gun and fired the first shot,
indicative of the actions of a person who was in control of his
actions and who was aware of what he was doing.
court considered all these facts, including the aspects on which the
accused's evidence was not accepted, and came to the
the defence case on its own and even without the weaknesses and
inadequacies in the Crown's case, was sufficient
to sustain the
accused's defence. That means that the Crown
discharge the onus resting on it to prove that the accused did not
offence charged while in a state of sane automatism. He was
accordingly correctly acquitted.
reasons the appeal was dismissed.
at Maseru on this......'day of October, 2000
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