HIGH COURT OF LESOTHO
Crown : Mr. Kotele/Miss Shale
Accused : Mr. Khasipe
by the Honourable Mr. Justice T. Monapathi on the 14th day of April
Accused has been indicted of murder of Thabiso Mosenye (Deceased) who
died on the night of the 18th April 1998 at or near Ha
Lesobeng in the district of Thaba-Tseka. Deceased died from gun shot
wound a few hours after he was shot. Accused pleaded
not guilty to
the charge on the 8th August 2002.
Preparatory Examination (PE) into the said murder was held in terms
of the sections under Part VII of the Criminal Procedure and
and completed on the 15th October 1999.
witnesses were led in the PE and they were as follows: PW1 No 8228
Det/Trooper Ramochela, PW 2 Maselebalo Mosenye, PW 3 Mathakane
Mosenye, PW 4 Bofihla Lekulana, PW 5 Lehlohonolo Tsoene, PW 6 Mokone
Kopano, PW 7 Reentseng Lali, PW 8 Puseletso Rampeo and PW
Semakaleng Edward Ramokepa.
witnesses led at PE were used in the trial except PW 9 who was the
doctor who performed a post-mortem report of the body of
Deceased. The witness' deposition was admitted by consent and marked
as Exhibit"A". The contents of the report was
read into the
machine so as to form part of the proceedings.
mortem report which was conducted at Queen Elizabeth II Hospital
revealed that the death of Deceased was due to excessive
bleeding. It appeared externally that there was a penetrating wound
on the right breast. There was no point of exit seen.
seen from inside, that this penetrating wound went through the right
lung and lower lobe. There was also blood in
the pleural cavity. A
wound penetrating the liver was also found. Lastly, as additional
observation, a bullet was removed from
the left lumbar
remained, having identified the cause of Deceased's death was the
identification of the person who was responsible in law for
unlawful killing of the Deceased. And furthermore if such a person be
identified whether or not he had killed the Deceased
requisite intention. Significantly none of the witnesses professed to
have truly (through the naked eye) identified the
killer except PW 1.
Nor were there any witnesses at the immediate scene where the alleged
witness before this Court was a lady by the name of 'Maselebalo
Mosenye (PW 1). She testified that she knew both the Accused
Deceased as they were living in the same village (Ha Nyoolo) or that
they were neighbours. Deceased was in fact her son.
the events which led to the death of the Deceased. She said it was at
night when she heard the dogs barking outside.
She said it was around
2.00 am-3.00 am. She then went out and saw a group of (more than two)
people coming towards her house on
horseback. There was moonlight.
witness stated further that that group of people passed along the
forecourt and proceeded to the kraal. Deceased also went out
people for some considerable time. One of them was on a grey horse
on a brown one. The witness was not able to identify any of them
except that she came to know one of them "after the
She had been a bit far from where the group of men had been.
Thereafter the witness heard two gun reports from the
spot where the
group of horsemen and Deceased were standing. At this time the
horsemen had dismounted. All were next to the entrance
of the kraal.
Thereafter she heard one of them saying "Let us go I have
finished him." They later went away but passed
forecourt. The witness had moved closer to her door after the
statement was made.
testified further that after the shooting many villagers arrived at
her place. Then the group of horsemen had departed. She
went to where
the shooting had taken place. She found the Deceased already in a
small hut in which he slept near the kraal. He
was lying on a
group was at the forecourt there was more shooting at the place of
Mathakane which is near the witness's place. They shot
twice. One of
the men had shouted "Let us go I have finished him" ("Ha
re eeng ke mo qetile"). Still more men
emerged after the gun
report . The witness did attend at the house of Mathakane before
looking into the house in which the Deceased
was. It was the third in
the line. Mathakane was already outside. She was carrying
witnesses attended on the Deceased she asked who injured him the
Deceased said that it was Seiketelo of Letsema of Sefateng.
(Seiketelo oa Letsema oa Sefateng). The witness testified that
Deceased knew the Accused very well and there would be no room for
wrong or mistaken identity of the Accused on Deceased's part. Later
police arrived and conveyed the Deceased to the hospital.
stated that the relation between the Accused and the Deceased had
been cordial except that at one stage earlier there was a
over animals between the Deceased's brother and Accused with his
people. She later told the Court that they were not in
Both families were not in good terms.
Kotele conceded this witness became confused because she could not
remember all the events of the day. He submitted however
story should be taken as the truth as these events took place a long
time previously in 1998 and she was relatively old
having been born
in 1940 (as the PE record showed). What was important to me was the
extent to which her evidence would be corroborated
in those respects
which were material to the proof of the charge.
witness reached the Deceased who was in his hut she called out
Thabiso, Thabiso: He replied "Mother Seiketelo has
(Seiketelo o nthuntse) Seiketelo is the Accused. The witness herself
inquired further as to which Seiketelo the Deceased
was referring to.
He replied that it is "Seiketelo of Letsema" (Seiketelo oa
Letsema oa Sefateng). That is this Accused.
The witness reiterated
that Seiketelo was well known to the Deceased. The witness also
vouched that she knew the Accused (Seiketelo)
very well because they
reside in the same village. At this time when the witness was
speaking to the Deceased 'Mathakane also came
to attend. She was
Deceased then pointed to his left breast area and said "Look
where Seiketelo has shot me." There was a lot of blood
therefrom. He even said "Here is the spot where the bullet came
out." He then pointed to a spot on his back where
"protruding" was shown where it had lodged. The witness
felt the presence of the bullet inside the skin with her
hand. It was
a hard object. It was below the shoulder blade.
Deceased remarked as to why Accused sought to harm him "Seiketelo,
what have I done to you?" (Seiketelo o ntsekisang).
the Deceased's words. Other people, fellow villagers, arrived soon
thereafter . An alarm had been raised. They all listened
Deceased's words which he was
say for half about an hour. One was Puseletso Rampeo (PW 7), Mokone
Kopano (PW 5), Bofihla Lekulana (PW 3), Reentseng Lali
Lehlohonolo Tsoene (PW 4).
villagers arrived at the time the Accused was still alive and
reciting the story of his injury. It was close to an hour. Accused
had already gone away. He had never come back to the scene.
Afterwards he was called by Chief Ntsukunyane by means of a letter.
He did not come. Chief Lerotholi Chief of the area also came. He sent
for the Accused. It was then about 12.00 midday. He refused
comply. Another letter was written which instructed that the Accused
must come with his father. His father came and made a report.
not come with the Accused. The Deceased had already died. He passed
away at about the hour of 5.00 am. Deceased's body was
carried off by
the police and the witness's other son accompanied the police.
witness commented towards the end of the evidence-in-chief that the
Accused and the Deceased were not in good terms. The witness'
and the Accused's were not friendly because of the witness' cattle
which were unlawfully taken away by the Accused and his
sent to Ha Mafa and driven to Ha Toka police post. The Deceased's
body was brought back after the autopsy. It was reported
later surrendered himself to the police.
cross-examination the witness agreed that she was confused and
frightened. The witness explained that it even had to do with
shooting of another son of hers. The witness denied however that she
might as well have not seen what happened or heard what
said. She said she was very brave all along because she realized that
she had to report well to the chiefs and the public
about what she
saw. She had even said a short prayer before the event.
witness was in mourning cloth for a week following the death of her
elder son when the events of the death of the Deceased took
was again put to the witness that if she had been brave she should
have chased after those people who had come to shoot
her son. She
appeared to refer to the events relating to the other son.
witness added that despite her confusion she was able to identify
Accused who came in the direction of the witness and then
us go we have finished him". That was the time the witness came
to identify the Accused. He had then dismounted.
His horse was being
led on the other side of the houses. He was coming in the direction
of the witness. She said she saw when Accused
shot the Deceased
because she was standing outside.
to how Accused was dressed the witness responded that he was putting
on a grey blanket. The witness was however unable
to confront the
Accused because she was then suspecting that the gun shot was
directed into the kraal but not onto her son. I was
the witness was telling the truth and gave a good impression short of
having directly identified the Accused. I
doubted this aspect of the
alleged direct identification. On the statements made by the Deceased
before his death the witness was
however amply corroborated by PW 2,
PW 3, PW 5 and PW 6.
she could have spoken about this on the night of the injury to
Deceased. And secondly it was not even suggested by
her at the PE.
The claim that she saw the Accused was obviously made up or was an
afterthought if not sheer imagination on her
Mosenye who was PW 2 testified that on the day in question she was
sleeping with a ten (10) year old child in her house.
early morning hours of around 3.00 am to 4,00 am she heard dogs
barking outside. At about the same time she heard Deceased
of the other house which was very close to hers. She then heard
people speaking loudly as if they were engaged in a quarrel
PW 2 said
after a short while she heard a gun report on two occasions. At the
same time she heard someone say "Come, I have
After these people had left she also went and tried to find out what
was happening. She then went into Deceased's
house together with PW
1. She found Deceased lying on a mattress. She then heard Deceased
say: "Why does Seiketelo cruelly
kill me". (Seiketelo o
mpolaelang ka sehloho) She said the Deceased repeated this remark
until he died soon thereafter.
repeated under cross examination. In her evidence in chief she had
actually stated that PW 1 had actually asked the Deceased
as to what was the matter. His reply was: "Seiketelo has shot
me." And the Deceased had actually pointed at
the breast area
where he was shot. I found the witness as true and unshakable and a
witness to the truth. She fully corroborated
PW 1 inasmuch as they
had at about the same time got into the hut where Deceased was when
Deceased made the statement in the presence
of PW 1. 1 found no
reason to doubt her evidence.
PW 3 was
Bofihla Lekulana. He said he knew the Deceased who was a fellow
villager. Accused came from a neighbouring village. He
events of the night when Deceased died.
night in question the witness had heard a gun report. He then saw a
group of people coming towards his house. One of them
was not on
was pulling his horse and walking together with others who were on
horseback. He went to the home of her paternal uncle to
where the gun report came from. It was reported that it came from the
direction of the Deceased's home. He was told further
that a child
had just called his uncle to the Deceased's home. He accompanied his
uncle to the Deceased's home.
Deceased's home he found Deceased who was reported to have been shot.
The witness himself asked the Deceased as to what had
reply was that he had been shot by Accused. And then followed the
remark as to: "Why Seiketelo has killed me
so cruelly". (E
be Sekitelo o mpolaelang ka sehloho se sekale!)" It was
thereafter that the witness was detailed to report
the matter to the
witness came back from the Chief's place he found that the Deceased
was already dead. The witness was not disturbed in
his testimony. He
appeared to testify to the truth.
witness was PW 4 Lehlohonolo Tsoene. He testified that both Accused
and Deceased were known to him because they came from
day in question he received a report from the Deceased's mother
should come to her place and take Deceased to hospital. The witness
was detailed by the chief to call the Accused. Accused
did not come.
He was sent for the second time. Still he did not come. Later as the
witness testified the Accused's father arrived
and told them that the
Accused had said he was coming and was following after the witness.
Accused never came altogether as the
witness further testified.
witness went to report the incident at Mantsonyane police post. He
later came to Maseru to inform Deceased's elder brother and
the Deceased's demise. According to this witness' knowledge Accused's
and Deceased's family had had no quarrels or misunderstanding
resulting from arrest of Deceased at a cattle post alleged to have
occurred in the past. Finally as the witness had found the Deceased
already dead he did not hear him say anything. The witness' evidence
was not disturbed in anyway.
Mokone Kopano similarly knew the Deceased and Accused who come from
the same village. As a result of information from one Mahasa
witness, accompanied by one Reentseng (PW 6), went to Deceased's
home. He discovered that the Deceased had a gun shot wound
as it was
also reported. It was then when he heard Deceased say: "He
finished me Seiketelo" (A tla nqeta
The witness was candid enough to say those could not even possibly
exact words but Accused made more such like statements there and then
immediately died thereafter. I had no reason to doubt
the evidence of
the Witness who was like all others cross-examined by Mr. Khasipe.
Lali was PW 6. He knew both Deceased and Accused. On the fateful
night having been awaken by someone, he went out of his
investigate. He then heard a person crying. A child then arrived
looking for one Makara. The witness then accompanied
by PW 5 and one
Ntaitsane proceeded to Deceased's home.
arrival the witness and the two gentlemen found Deceased still alive
but in great pain. In their presence the Deceased uttered
"Oh Seketelo has killed me cruelly!" 0o Seketelo a tla a
mpolaea ka sehloho oe!).
uttered statements similar to that several times. When it was
suggested to the Deceased whether that he could not ride
Deceased declined saying that he was already finished. The witness
testified further to say that the Deceased even
demanded poison to
finish himself off because he wanted to die. The poison was not made
available to the Deceased. The Deceased
died soon thereafter. It was
not suggested nor was 1 persuaded hat this witness spoke anything but
the truth. [ believed the witness.
Rampeo was PW 7. He knew Accused who came from neighbouring village.
Deceased was his neighbour. On the night of Deceased's
death he was
called by PW 2 and asked to go to deceased's home quickly. So he
witness found Deceased lying on a mattress. He looked in great pain.
The witness was given a report by the Deceased's mother
on what had
witness himself said he never knew Accused and Deceased to have
quarrelled at anytime in the past. Later Chief Lerotholi arrived.
gave instructions that Accused be called. Accused did not come
witness having seen the Deceased went outside for a moment and then
came back. It was then that he heard Deceased utter the
"Seiketelo has killed me cruelly" (Seiketelo a tla mpolaea
ka sehloho). The witness testified further that he did
not know if
the Accused was a member of an anti-stock theft association. The
witness was cross examined but stuck to his guns.
He appeared to tell
the truth as he knew it.
as well record my finding that the statement by the Deceased that
Accused killed him was heard by more than five witnesses each
corroborating the other, him was overwhelmingly proved . PW 6's
testimony is also compelling that the Deceased saw his death, he
expected his death, he and had lost any hope of ever living. The
present reference by the Deceased to his having been "killed"
by the Accused suggests beyond doubt, in the circumstances
case, that the statements were indeed dying declarations. This cannot
be judged separately from the observations of other
the Accused was in great pain.
Accused's defence mainly consisted in the challenge that the words
used or uttered by the Deceased before he died were said
in many and
different fashions (not ipressima verba) could not therefore be
Accused's words. It was not however suggested that
the witnesses were
schooled or that their heads had been brought together. Mr. Kotele
replied thing in this regard that moreover
most witnesses arrived on
different times while the Deceased was still alive and able to speak.
That furthermore it also had to
be borne in mind that the crime
happened a long time before the witnesses testified and their
recollection could not be expected
to be at their best. He contended
further that exact words said by the Deceased could not accurately be
remembered unless the witnesses
were schooled. He submitted that in
any event where mischief or subterfuge was not even suspected our law
dis not require ipsissima
verba. See R v Baloyi 1949(1) SA
witness to testify was Police Office No. 8228 Det/Trooper Ramochela.
He said in May 1998 he was on duty when he received
a letter from the
Chief of Khutlo-se-metsi. The letter contained a report about the
death of someone who had been shot at the place
of the chief's
following day PW 8 was accompanied by Trooper Mpesi and Det/Sgt
Morolo to the Deceased's place. They travelled in a motor
because the village was quite a distance away. At the Deceased's
place he found a dead body of the Deceased. It had a wound
right hand side of the breast. The wound was still bleeding. It
looked like a bullet wound. There was also a swelling on
hand side of the rib-cage.
examining the corpse they went to the alleged scene of the crime
where they found nothing tangible relating to the alleged
They afterwards carried the corpse until they reached a place where
they had parked their vehicle. They further conveyed
the corpse to
Mantsonyane mortuary. On the way the body did not sustain any further
injuries. The body was later taken to Queen
Elizabeith II Hospital
after two days for a post-mortem examination.
said during the post-mortem examination the doctor was able to
extract from the rib-cage a dead bullet. It was a .22 calibre
This he kept as an exhibit in Court. The Deceased's body was
afterwards taker to Mantsonyane mortuary.
witness said that after a few days Accused did arrive at his office
having prior to that date attended but having found the
absent. It was on the second occasion. He was cautioned and given a
charge of murder of the Deceased in this case.
Accused gave evidence in his own defence. No other evidence was led
for the defence. Accused said he stayed at Sefateng. He
illeterate and did not know how many years that had passed since the
Deceased died. He knew the Deceased during his lifetime.
Deceased grew up together as herdboys. Deceased's home was at Ha
Nyoolo. He estimated the distance between his village and
that of the
Deceased as about fifteen kilometres.
said during this night of the Deceased's death (during the month of
April 1998) he was at his home. He said on the following
day he was
still present at home but went to Thaba-Tseka later to buy
mealie-meal with one herd-boy who was hired at his home.
after arrival at Thaba-Tseka when
at one shop he saw a policeman who called him.
testified further that he was told by the policeman that, police
officer Ramochela, who became PW 8, at Mantsonyane police
looking for him. Accused said the officer should allow him to go to
his home first and would report himself later. This
was on the 3rd
May 1998 when he duly complied. Accused had first gone to his home.
He reported himself later at the police post
where he was arrested
and later sent to Thaba-Tseka Magistrate's Court for remand.
denied having shot the Deceased nor that he had any firearm. He said
he knew PW 1 and suspected she knew him too. PW 1 had
been present at
the PE held at Thaba-Tseka magistrate's court. Accused contended that
there was bad blood between him and the Deceased
caught Deceased when he had stolen. He however denied that he ever
went to the home of Deceased to shoot him. Nor
did the police go to
Accused's home to look for him or search for a firearm. The first
time he knew of the death of the Deceased
was when he was informed of
the same by a police officer at Thaba-Tseka.
first knew of the suspicion at the police cannot be so because the
detailed someone to call the Accused about the incident. This was
done twice. His father even reported that the Deceased
following. He did not follow. This is extremely credible inasmuch as
it was unchallenged. The Accused cannot therefore
of his having not known of the incident. He merely can suggest that
at the time he was called he was present
at his own village which is
not far by horseback from Deceased's village. Obviously nothing in
the Crown suggest that the question
of Accused's alibi was even
cursorily followed. See Tseliso Lempe v Rex 1997-1998 LLR-LB 195 at
be emphasized, as in this case, is that an accused never bears the
onus of proving his alibi. Indeed Mr. Kotele neatly
added that the
prosecution should have strong evidence to the effect that the
Accused is the one who in fact committed the offence
by seeking to
disprove his alibi. Afterwards the accused would be expected to prove
his alibi. He referred the Court to Tjalekile
Kolokolo v Rex
CRI/A/33/69 and R v Biya 1952(4) SA 514. See also remarks of Guni J
in R v Matobo and Others CRI/T/433/92 25 March
2003 at pages 16-18.
But unlike in the case of Tseliso Lempe (supra) there is nowhere the
Accused said he disclosed his whereabouts
to the police under
interrogation or in any form of report.
a few worrisome aspects about the arrest of the Accused. The
is the aspect of his having been only informed by police around the
3rd May 1998 that he should report himself at the police
post. It could not be answered why, if having been known on the same
the commission of the crime that the Accused was suspected. He
was not arrested on the same day. No one spoke about meeting the
Accused until the day when he reported himself at the police post.
This is so except for the fact that his father was reported
spoken to him that day of the Deceased's death or on the early
morning. The date of his arrest is only shown as the 5th
May 1998 in
the PE sheet.
that the police did not follow on the Accused after it was reported
to them by the chief poignantly adds to the worry that
no search nor
inspection was done at the place of the Accused nor an investigation
at his place about his whereabouts. That is
why Mr. Khasipe correctly
spoke of the need to have called rebutting evidence once the Accused
spoke of or denied his having been
present at the scene at the
material time. In this regard he submitted that:
"The Crown is permitted to call rebutting evidence if the
defence set up is the one which the prosecutor could not be expected
to foresee". See R v Lipschitz 1921 AD 222, R v Maleke
CRI/T/10/84 (unreported) as quoted in Handbook for Judicial Officers
1986 Ed. Page 110 - Hon. M.P. Mofokeng.
case on the contrary the Crown should have foreseen that the Accused
deny his presence or alternatively the fact that his identifying
surely called for such an approach.
circumstances that, as Mr. Khasipe contended, the Accused was not
identified at the scene when the Deceased has spoken about
testified to by the various Crown witnesses, when the Accused was
well known with his place of above not being far from
place, if this assertion is to hold true then the crisp question is:
"What prevented the villagers as well as the police
investigators to find out his whereabouts particularly at his place
abode? For sure this may not be ignored as an oversight."
why Mr. Khasipe added that under the circumstances it could have been
worthwhile, and even reasonably to be expected that
dwelling should have been visited by way of investigation. See my
comments about Accused's alibi hereinbefore. With
this worry is the
fact that this Accused was only arrested on the 3rd or 5th May 1998 a
good twelve days and not less after the
delay in having Accused arrested must be read against the background
that by the afternoon of the death of the Deceased police
at the Deceased's village where the corpse was transported to the
then to the mortuary. That the delay in arresting the Accused
suggested bad investigations on the part of the police is
aspect that there was no search at the Accused's place is in addition
more intriguing. It adds to the conclusion that that the
investigations left a lot to be desired. The question would therefore
be whether by reason of "lack of integrity and
efficiency of the
police investigations" the Court should have less confidence to
convict. See remarks of Steyn P in Tseliso
Lempe's case (supra) on
pages 277-278. In the instant case the answer should be in the
the facts of the dying declaration I have found none of the other
facts either in isolation or cumulatively persuasive enough
conclude that it points at the guilt of the Accused beyond a
reasonable doubt even if one would conclude that there was anything
prima facie. Included in those conclusions I . have discarded is the
alleged identification of the Accused by PW 1 as not only
but unconvincing. That much would even be gathered from the Crown's
reluctance to press this aspect.
question is therefore answered as to whether there was anything
formidable or convincing enough except the aspect of Deceased's
There may not be anything formidable if those factors are considered
in isolation. But that is not the approach. The
approach would still
surely not be that since the aspect of alibi has not been completely
disproved by the Crown and the Accused
having not been discredited,
that is the end of the story and the Accused ought to be instantly
question would also be whether if the dying declaration is accepted
it means that:
".... on all the evidence there is reasonable possibility that
this alibi evidence is true ....". See R v Biya (supra)
521 as quoted in R v Hlongwane 1959(3) SA 337 at 341. (My emphasis)
Or is it
otherwise? I have underlined "on all the evidence" to
indicate that the converse would be that "if on all
there is no reasonable possibility that the alibi is true" then
the Accused would not be entitled to an acquittal.
declarations are pieces of hearsay evidence admitted under the
doctrine of res gestae, as exceptions to the rule against admission
of hearsay evidence. As the learned authors of South African Law and
Evidence, Fourth Edition, (LN Hoffman and D Zeffert) explain
doctrine of res gestae by saying that:
"The central notion of the doctrine, therefor, is that evidence
may be admissible either because it is itself a fact in issue
fact relevant to the issue, or because it is so closely associated in
and circumstance with the transaction under investigation that it has
a high degree of relevance."
present case, besides the credibility of the unshaken witnesses who
testified to the statement made by the Deceased made
presence, I took into account that the Deceased's injury was reported
immediately to the chief and also to the Accused's
reported) who told Accused to report at the home of the Deceased or
at the Chief's place. Unfortunately the Accused
did not comply. Most
importantly it was immediately after the event.
law dying declarations are supposed to be admitted if made under
certain qualifications. Section 226 of the Criminal Procedure
Evidence Act 1981 prescribes to following qualifications. Firstly,
the statement should have been made by a deceased person
apprehension of death, that is, he should be in a settled and
hopeless expectation of death. Secondly, the maker of the
should be dead and further that he or she would ordinarily be a
competent witness whose statement would be admitted at
trial in a
charge of murder or Culpable Homicide.
the statement should have been made at the time he was under a
settled and hopeless expectation of death. I was in this regard
referred to the case of R v Hine 1910 CPD 37, R v Nzobi 1932 WLD 198,
R v Masenge and Another 1916 EDL 383.
Kotele further correctly submitted that the statement made should be
unequivocal, that is, there should not be an element of
it. Furthermore that the statement should be complete and the words
should leave no room for speculation. See also
South African Law of
Evidence (supra) at pages 642-645. I agreed that the Deceased's words
testified to, as having been said by
the Deceased, satisfied all the
Mr. Kotele referred me to an English case of Ratten v R (1972) AC
378(PC) at 389 (1971) 3 ALL ER 80 at 806 which was about
statements identifying the speaker's (deceased) assailant. In that
case accused's wife died from a gun shot wound. He
asserted that the
discharge from a gun which was in his possession was accidental had
occurred while he was cleaning the gun. He
was unable to explain why
the gun had been loaded. Evidence (allegedly hearsay) relating to
three phone calls was adduced at trial.
The evidence was held to be
properly admissible essentially to prove that the words were spoken
and that they related to the issue
as part of the res gestae.
said decision in Ratten v Rex was applied in R v Andrews (D) 1987 AC
281 Lord Acker pertinently summarized the situation
by saying that:
"the position which confronts the trial judge when faced with in
a criminal case with an application under the res gestae
admit evidence of statements, with a view to establishing the truth
of same fact thus narrated, such evidence being truly categorized as
primary question which the judge must ask himself is -can the
possibility of concoction or distortion be disregarded?
answer that question the judge must first consider the circumstances
in which the particular statement was made, in order satisfy
that the event was so unusual or startling or dramatic as to
dominate the thoughts of the victim, so that his utterance
instinctive reaction to that event thus giving no real opportunity
for reasoned reflection. In such a situation the judge
entitled to conclude that the involvement or the pressure of the
event would exclude the possibility of concoction or
providing that the statement was made in conditions of approximate
but not exact contemporaneity.
order for the statement to be sufficiently 'spontaneous' it must be
fairly stated that the mind of the declarant was still
the event. Thus the judge must be satisfied that the even, which
provided the trigger mechanism for the statement,
operative. The fact that the statement was made in answer to a
question is but one factor to consider under this heading.
apart from the time factor, there may be special features in the
case, which relate to the possibility of concoction or
... The judge must be satisfied that the circumstances were such
that having regard to the special feature of malice
there was no
possibility of any concoction or distortion to the advantage of the
maker or the disadvantage of the accused.
to the possibility of error in the facts narrated in the statement,
if only the ordinary fallibility of human recollection
upon, this goes to the weight to be attached to and not to the
admissibility of the statement and is therefore a matter
jury. However, here again there may be special features that may
give rise to the possibility of error. In the instant
case there was
evidence that the
deceased had drunk in excess.....Another example would be where the
identification was made in circumstances of particular difficult}'
where the declarant suffered from defective eyesight. In such
circumstances the trial judge must consider whether he can exclude
the possibility of error" (pp.300-301). (My emphasis)
into account all the factors above inasmuch as most witnesses had
stood to demonstrate them. Prominent among factors I took
account is that the Accused was well known to the Deceased. In
addition immediately after the Deceased had approached the
who was among the group of men there was the fatal shooting. Deceased
had gone to meet the Accused who he must have seen.
In no way was any
margin for error pointed out.
the above tests, in reiving on the Deceased's dying declaration, I
concluded that it was safe to convict the Accused of
the murder as
charged. He shot the Deceased recklessly and indirectly intended his
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