CRI/T/57/2002

IN THE HIGH COURT OF LESOTHO HELD AT MASERU

In the Matter Between:-

Rex

And

Khosana Tlapana

JUDGMENT

Delivered by the Honourable Madam Justice N. Majara on the 29th September 2005

On the 3rd November 2004 the accused appeared summarily before me on a charge of murder in that on or about the 26th April 2000 he unlawfully and intentionally killed one Mphanya Thakaso. He pleaded not guilty to the charge and the crown led evidence in support of their case.

At the commencement of the trial Ms Shale, counsel for the Crown informed the court that the defence wished to admit certain statements of the crown's witnesses all of which were read into the court record and became part of the evidence.

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The crown called four (4) witnesses to the stand. According to P.W.l's evidence, on the date in question and whilst at the house of the late 'Mammoelo, the accused started swearing at P.W.2, who also happens to be her younger sister, by her mother's private parts and threatened that he was going to kill her because she said she no longer loved him. The evidence went on to show that when P.W.I reprimanded him, the accused became more aggressive and started insulting her too. He also rose up and threatened to assault P.W. 1 but the deceased who was present, intervened whereupon he was also subjected to the accused's insults.

When the deceased reacted to the accused's insults, the late 'Mammoelo asked him to ignore the accused as he had already insulted her too. P.W.I went on to say that the accused started insulting everyone in the house and repeated his threats that he would not leave without having killed P.W.2.

P.W.2 also testified that she advised the accused to leave and come back the following day to talk things over with P.W.2 and that it was then that the accused took off his blanket and jacket, put his stick on the ground and produced a pistol. He then went out for about three (3) minutes or so. When accused went out, the deceased advised P.W.2 to leave the room and go into

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another as she was the source of accused's aggression and P.W.2 obliged. The evidence went on to show that when accused came back into the room and realized that P.W.2 had left, he became very angry and tried to gain entry into the other room but was obstructed by the late 'Mammoelo whereby a struggle ensued. Upon seeing this, P.W.I rose and accused pushed 'Mammoelo to the floor where-upon the deceased reprimanded the accused and told him not to behave that way simply because 'Mammoelo did not have a husband.

It was also P.W.l's evidence that the deceased tried to get hold of the accused whereby the accused said he would show the deceased who he was as he was stopping him from doing what he wanted to do and that 'Mammoelo's house was not his home. It was then that the accused shot the deceased once and the latter fell on the ground. 'Mammoelo then snatched the pistol from the accused. P.W.I then asked the accused if he had really shot the deceased and accused left after watching the deceased for a while.

P.W.I also told the Court that when she tried to talk to the deceased, the latter did not respond and she saw him bleeding from the nose and ears. She then went into the room where P.W.2 had fled and asked her to open the

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door and the latter did after some persuasion and upon being informed that the accused had left having shot the deceased. P.W.2 then went to fetch their brother Mojalefa who came, shook the deceased and upon getting no reaction from him, went to find a vehicle that would take him to hospital. According to P.W.I, the deceased was already dead by that time.

P.W.2's evidence was mostly similar to that of P.W.I but for the part after she fled into the other room. She testified that whilst in there, she could hear the quarrel between the accused and her mother and the struggle for the door. She said that after she heard the deceased reprimand the accused, she heard some-thing like a glass falling down. After some time she heard P.W.I ask the accused why he was killing the deceased.

It was also P.W.2's evidence that afterwards P.W.l came and told her that the accused has killed the deceased whereupon they went to call their brother Mojalefa. After deciding that a vehicle was needed to take the deceased to a hospital P.W.2 then went to one Lemohang's place where she found her mother holding the pistol. P.W.2 then testified that she took the pistol from her mother and they went home where they found many people

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gathered there. She then went with the said Lemohang to report the matter to the police and the police came and took the accused away.

Two other witnesses who took the stand were P.W.3, Number 8924 Detective Trooper Seisa and P.W.4 Senior Inspector Mothibeli respectively. P.W.3 was part of the investigating team in this matter and he testified that some time in April 2001 he was on duty when Detective Sergeant Raboqha who is since deceased handed him a 7.65 MM pistol with serial number 661202 and two spent shells of the same caliber. P.W. 3 labelled the pistol and recorded the death of the deceased. He handed the same pistol before the court as an exhibit and the court marked it exhibit 1. P.W.4 in turn was the ballistics examiner who examined the pistol and found that indeed the spent shells had been fired from the same pistol.

During the trial when the crown called P.W.3 to take the stand, the defence raised the objection that since the defence had not been provided with this particular witness' statement the court should not let him take the stand.

It was Mr Thulo, Counsel for the defence's submission that the principle of

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a fair trial dictates that an accused person has to be given statements of all the witnesses before the trial commences so that he gets the full picture of the case he is going to face and prepare his defence. He argued further that the crown already knows the case they want to place before the court and thus should not be allowed to call a witness whose statement has not been made available to the defence otherwise an accused person might suffer prejudice.

I overruled this objection for the reasons that whilst I appreciate the rationale as contained in the case of Seoehla Molapo v DPP, I am of the opinion that this principle was not meant to exclude any evidence which might be crucial for the proper determination of the issues raised in a trial. It would therefore be an anomaly to stretch the principle to mean that any time a witness' statement is not made available to the other side such evidence should necessarily be excluded by the Court.

The court's duty is to first and foremost ensure that the interests of justice are served. In the conduct of trial, a court is not expected to sit as an umpire in a sporting game and apply hard and fast rules even if such would defeat

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the ends of justice. That is why they are given a wide discretion which of course they must exercise judiciously.

To support my view, Section 202 of the Criminal Procedure and Evidence Act of 1981 empowers the court at any stage of a criminal trial to subpoena or cause to be subpoenaed any person as a witness or examine any person in attendance though not subpoenaed as a witness, if his evidence appears to it essential to the just decision of the case. As can be seen from the above mentioned provision, a court is given wide latitude to apply its mind in ensuring a fair and expeditious decision of any trial. This means that where the court is of the opinion that the evidence of a particular witness is crucial, it can call such a witness regardless of whether or not either side had intended to call him/her. It was for these reasons that I overruled the objection and allowed P.W.3 to take the stand.

After P.W.3 gave his testimony and answered questions that were put to him under cross-examination, Mr Thulo moved another application that the court should not admit the firearm and spent bullets as exhibits because they were not handed in by their custodian. To put this issue in perspective, I should mention that during his evidence P.W.3 testified that he had been

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given the firearm, a bullet and a spent cartridge by the late Detective Raboqha to take them for a ballistics examination.

He testified further that although he could not recall who actually took the pistol and cartridge for examination, he only knew that this eventually happened. I reserved my ruling on this particular application especially because I had already accepted and labeled the firearm as exhibit 1. I however directed Mr Thulo to bring the Court authorities that support his application. This he did.

In the case of Mohlokinyane Masheane v Samuel Ramotse CIV/A/9/89

which was quoted to this Court, the Honourable Molai J held that the evidence of one Molapo Motemekoane Masheane who handed in receipts/invoices as part of his evidence was in the circumstances inadmissible hearsay for the reason that he had testified as if he was the defendant therein whereas he was just his representative. In casu, P.W.3 testified that he was given the firearm and cartridge by his superior. Nowhere did his evidence suggest that he is the person who seized the firearm and took it for ballistic examination. The two are therefore

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distinguishable in that P.W.3 did not adduce hearsay evidence which would be inadmissible.

In addition, from the other authorities quoted to the Court, it would appear that the rationale for the requirement to label and produce exhibits at the trial is so that such evidence which is considered real is placed before the court.

In Criminal Procedure and Sentencing in the Magistrate's Court 3rd Edition PI12, Inigo Bing stated that

"The procedure is for the particular witness who found or came by (my underlining) the piece of real evidence to attend Court with it and produce it for inspection and examination by the Court"

In casu, P.W.3 actually handled the firearm and cartridges and gave them a label. His evidence with regard to their identity is therefore not hearsay. This my opinion is reinforced by the position which was adopted by the Court in R vs Robson (1972) 2 ALL ER 699 at 701 wherein Shaw J stated that;

"My own view is that in considering that limited question (of admissibility) the judge is required to do no more than to satisfy himself that a prima facie case of originality has been made out by evidence which defines and describes the (exhibit) up to the moment of production in court. "

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In casu, no evidence was brought to suggest that the firearm was not the actual murder weapon. Most of the cross-examination was directed at showing that P.W.3 was neither the custodian of the exhibits nor the one who took them for ballistic examination. The evidence however shows that he is one of the police officers who came to have it in their possession during the investigations and hence was able to say that it is actually the same firearm. In the absence of any evidence to the contrary, the Court accepts it as the actual exhibit. This is strengthened by the unchallenged evidence of P.W.4, the ballistics expert. For these reasons, I dismiss the objection raised by the defence.

Coming back to the evidence tendered before the Court, the admitted statements were those of Mojalefa Ramokoena, Lemohang Mothae and Andreas Thakaso respectively. According to Lemohang's statement, on the night in question, she was at home sleeping when 'Mammoelo arrived at her house, breathing heavily and looking scared. She was holding a firearm with which she told her that Tsoeu-Tsoeu's child had killed that of 'Manqosa at her place. She said that they then went to 'Mammoelo's place but that she did not go inside as she was scared.

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Thakaso's statement was to the effect that after he received a report that the deceased had been shot at 'Mammoelo's place he went there and found him lying dead. He observed a wound below the deceased's right eye. He also saw a blanket and jacket which were said to belong to the accused. He identified the body of the deceased to the doctor who performed the autopsy at Queen Elizabeth II hospital, on the 30th April 2001. The post-mortem report which was also admitted showed that the cause of death was a gun-shot wound.

The defence's evidence was the accused's sole testimony. According to him, on that fateful day he started drinking at around 12.00 noon until late afternoon when he went to 'Mammoelo's place. He then ordered one quart beer bottle as he wanted to leave but could not because 'Mammoelo did not give him his change. Accused told the court that 'Mammoelo said that he would not leave as he no longer came to her house to see her daughter (P.W.2). He then told her that he no longer loved her daughter whereupon 'Mammoelo called P.W.2 against his will. P.W.2 came and he told her that it was her mother who wanted her and not him. P.W.2 then informed her mother that she no longer loved the accused as he was a womanizer (sefebe).

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Accused testified further that he asked 'Mammoelo to reprimand her daughter but the latter continued to call him names until he got offended and insulted her by her mother's private parts. He says that at this stage P.W.I who had arrived with the deceased joined in the quarrel and also insulted him by his mother's private parts.

According to the accused's version, during this exchange, the deceased did not say anything. The accused attempted to assault P.W.I with a stick as she continued insulting him and the latter ran behind her mother. He further told the court that 'Mammoelo told him that he would rather kill her first before killing her children at her home. It was however accused's story that he had not threatened to kill anyone. He went on to show that when he tried to get hold of P.W.I, the deceased intervened and that 'Mammoelo produced a firearm from her waist. Accused then put some distance between them and himself whereupon he heard the report of a gun and ran away leaving behind his blanket and jacket. He then learned of the deceased's death on the following morning on his way to fetch his things.

From the evidence as a whole, facts which are common cause are that on the night in question, the accused went to the house of 'Mammoelo who is since deceased and bought a quart beer bottle. On the same day, the

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deceased also arrived at the house and ordered a beer. At some point the people who were in the house were the said 'Mammoelo, P.W.I her eldest daughter and the deceased's lover, P.W.2, her youngest daughter who used to be the accused's lover, the deceased and the accused. Both the accused and the deceased were drinking.

It is also common cause that during this time, some disagreement arose concerning the accused and P.W.2's relationship which culminated in P.W.2 leaving the room and going into another. It is also common cause that insults were exchanged between the accused, 'Mammoelo, P.W.I and P.W.2 and that at some stage during the argument, the deceased was fatally shot with a firearm.

It is on the basis of these facts that the issue which this Court has to determine is who on that fateful day produced the gun and fired a shot at the deceased thereby causing his death. According to the crown's evidence, the gun belonged to the accused who they said was in a belligerent mood on that night, insulting people and threatening to kill P.W.2 because of relations which had gone sour between the two of them.

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It his heads of argument, it was Mr Thulo's contention that the Court should reject the crown's evidence for the reasons that it was inconsistent on the material aspects. Indeed Under cross-examination, P.W.I and P.W.2 did contradict one another on some aspects of the evidence, however, in the Court's opinion, the contradictions were in respect of unimportant facts such as firstly who arrived before whom on that night between the accused and P.W.I who was in the company of the deceased, secondly who gave the beer to the accused and lastly what were 'Mammoelo's actual words to the accused when she gave him the beer.

Authorities abound on the issue of certain inconsistencies in witnesses' evidence. It has been generally stated that such inconsistencies do not necessarily suggest that witnesses are deliberately telling the Court untruths but rather that events which occurred a notable time in the past cannot be told with the same precision otherwise there is the danger that such evidence was rehearsed and/or orchestrated. See the decision of the Court of Appeal in Masupha Moshoeshoe and 3 Ors v R 1991-96 LLR Vol 1 783 at 785 where Leon J.A as he then was had this to say;

"Counsel for the appellant referred to certain differences on matters of detail between the Crown Witnesses. These are to be expected in a case of this king (sic) with honest witnesses. Indeed if they told exactly the same story in al (sic) respects one would suspect a conspiracy. "

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As Ms Shale rightly submitted, under cross-examination, P.W.I stood firm On

the material aspects of what the conflict was about, to wit, that the accused was insulting P.W.2 and their mother, threatened to kill P.W.2 and was in possession of a firearm which he eventually used to fatally shoot the deceased after the deceased intervened when he was trying to hit her with a stick.

True enough, some of the answers she gave during cross-examination revealed that some of the facts did not appear in her previous statements which she made to the police. However, in the Court's opinion, these were not material to the issue of who killed the deceased. This is more so when account is taken of the fact that the first docket containing the witnesses' statements went missing as well as the one that was put together after. It would therefore be a tall order to expect a person to give a statement on three different occasions word for word, as if she was reading from a book.

On the principle as stated in Moshoeshoe's case (Supra,) naturally a person will omit and/or add certain facts each time s/he relates an incident. What is

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important is that the gist of his/her account should be the same especially on the material aspects of his/her story. Having said this, suffice it to say that as far as the conflict, the insults, the threats and the shooting were concerned, P.W.l's evidence was basically the same and it was corroborated by P.W.2 on most of the material aspects.

However, P.W.2 showed that she did not know who had shot the deceased as she had left the room by that time. She however confirmed that at some stage after the struggle for the door between her mother and the accused, she heard from the other room what sounded like a glass falling. Taking all these factors into account, the position as stated in the case of Julius Pone v Director of Public Prosecutions 1999-2000 LLR & LE 214 (C of A) does not apply in casu.

Mr Thulo also suggested that the crown's evidence was a fabrication designed to protect the fact that it was the two crown witnesses' mother who produced a firearm and mistakenly shot the deceased while her intention was to shoot the accused. If this argument were to be accepted by the Court then it wouldn't make sense why P.W.2 would stop short of corroborating her sister on the fact that she also saw who shot and killed the deceased. She did

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not do so and in the opinion of the court this negates the suggestion that the two sisters fabricated the facts. P.W.2 was found to be reliable and her evidence trustworthy.

Coming to the accused's version, he testified that 'Mammoelo is the one who produced a firearm and shot and killed the deceased. However, he contradicted himself on the material aspects such as how drunk he was on that day and how as he alleges, the deceased was actually shot. In his evidence in chief, he testified with certainty that 'Mammoelo shot the deceased with a bullet which was meant for him with him still in the room.

Under cross-examination he said he did not hear the gun-shot as he had already run outside. He then changed his story and said he did hear the report of a firearm from outside which story he changed again and said he was not even sure what the sound was and that it could have been the echo of his boots when he jumped out. Assuming that the late 'Mammoelo shot the deceased after accused had already run out, the question would be why would she do that as there clearly was no animosity between the two of them from the evidence in toto.

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It was also established through the evidence that the accused was drunk on that particular night. Although under cross-examination he denied this, in his evidence in chief he did admit to having been very drunk and the Court finds the latter as the more probable when account is taken of the fact that he himself told the court that he had been drinking non-stop since midday.

The above-mentioned contradictions made him a very unreliable witness in the eyes of the Court. Even if his story were to be believed, this Court finds it ludicrous for him to suggest that an ordinary Mosotho woman of the age and caliber of the late 'Mammoelo would suddenly produce a firearm from her waist and aim a shot at another person, having kept it on her person all the time. While this is not totally impossible, the Court finds it highly improbable and not even reasonably possibly true and therefore rejects the accused's story as totally false.

There is a plethora of authorities that if there is any reasonable possibility of the accused explanation being true, then he is entitled to his acquittal. See the case of R v Difford 1937 AD 370 at 373 and other authorities cited therein. However, as I have already shown such is not the position in casu.

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In addition, there is even no logical reason to believe that the late 'Mammoelo owned and/or kept a firearm on her person not to mention that there was no evidence to suggest that she knew that the accused would be coming to her house on that day so that she could have armed herself in readiness for the altercation that ensued.

On the issue of how the firearm came to be in the possession of 'Mammoelo, the crown's evidence per P.W. 1 's version showed that after the accused had shot the deceased he just stood there and watched the deceased and that is when 'Mammoelo snatched it from him. The inference which the Court draws from this evidence is that after realizing the enormity of his actions, the accused sobered up and the fight went out of him as sanity came back and he just stood there bemused by what he had just done.

Mr Thulo also suggested that the late 'Mammoello was the culprit and the reason why P.W.2 took the pistol from her was so that she could get rid of the latter's finger-prints. On this aspect, the Court finds that no evidence was led on the question of how many sets of fingerprints were found on the firearm or to whom they belong. This argument therefore does not take us anywhere. However, even if the Court were to accept this suggestion, under

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normal circumstances and when everything is considered, ordinary Basotho are not that knowledgeable about the concept of fingerprints on weapons and what the implications might be, least of all when circumstances were as unsettling as what had just occurred on that day. These are normally acts of hardened criminals or scenes that one sees in movies. It is therefore most probable that 'Mammoelo snatched the firearm as a result of shock and for fear that the accused might use the it again.

Over and above these factors, accused's conduct after the shooting incident is found to have been very peculiar. If his story were to be believed by this Court, how does he explain leaving the place after as he alleges, someone had just been shot in his presence and not report the incident to anyone at all either on the same day or the following morning when he allegedly fled fearing for his life and yet nonchalantly purport to go back to the same place to collect his blanket and jacket as if nothing had happened? The Court finds this conduct by the accused totally unusual. It cannot be said to have been that of a reasonable man. If anything, it suggests that he acted that way because indeed he was the culprit. I reject the story as totally false.

VERDICT

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The next issue for consideration is whether accused should be found guilty of the crime of murder. Murder is defined as the unlawful and intentional killing or causing the death of another human being. From the evidence as analyzed above, two of the elements of murder have already been established, to wit, unlawfulness and causing the death of the deceased. The next question to consider is whether on the basis of the evidence, the accused had the intention to kill the deceased. In a number of authorities, it has been stated that for the crime to be murder the Crown has to prove intention beyond a reasonable doubt as against negligence.

The evidence has shown that not only did the accused threaten to kill a person that day (P.W.2) whilst he was generally aggressive, but that he also directly told the deceased that he would show him as the latter was obstructing him from doing what he wanted to do. He then went ahead and pulled the trigger whereby he fatally shot him. The evidence also shows that although the initial intention of the accused had been to kill P.W.2, he ended up killing the deceased. The accused's act was therefore deliberate and he had the direct intention to kill the deceased.

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For the above reasons, the Court finds that the crown has discharged its onus of proving its case beyond a reasonable doubt. The undisputed evidence also showed that the accused had been drinking since around twelve noon (12.00) that day and that he was very drunk. It follows that in his drunken stupor he was not thinking as clearly as he ordinarily would have when sober. Although not excusable, this factor negatively affected accused thinking faculties on that day and thereby lessening his blameworthiness.

Mr Thulo also correctly submitted that there is no evidence of accused having Premeditated the killing and that he acted under the influence of liquor, the deteriorating love affair and simply overreacted by his actions.

On the basis of the above reasons, I accordingly find the accused guilty of murder with extenuating circumstances.

My Assessor agrees.

SENTENCE

In mitigation, the Court was told that the accused is a first offender, is

married with two children the older one being a ten (10) year old who

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attends school and the younger a one and half year old baby. He is the sole bread winner who supports his family through farming.

Sentencing is usually the most difficult part of the trial especially where a person's life has been lost. The Court has to try and strike a balance between factors adduced in mitigation of the accused such as how his dependants will suffer as a result of his incarceration and the fact that the deceased also left his family and/or dependants.

I take into account the fact that murder is a capital offence which carries with it maximum punishment in this country. Naturally where the Court finds that the death sentence is not the appropriate one in any given circumstances, imprisonment is usually considered the next most appropriate one.

As His Lordship, the Honourable Molai J aptly put it in Rex v Moferefere Mphuthi CRI/T/107/2001, Lesotho prisons are not some Nazi concentration camps where people used to be subjected to the most inhumane treatment. Instead, our convicts are given the basic necessities of life free of charge. They undergo rehabilitation so that they can fit back into society at the end

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of their term. They also get different kinds of training with the aim to help them make a better life for themselves and their dependants once they are out of prison. Over and above this, they still enjoy visits from family and friends until they finish serving their sentence.

On the other hand, the family and friends of the deceased can never see him nor hear his voice again. He is taken away from them forever, including his financial, emotional and other support.

Over and above striking a balance between these interests, the Courts also have the duty to discourage and punish crime. It is not a disputable fact that taking of one's life has become the norm in this country. People have lost the respect of others' right to life. This is evidenced by the increasing number of murder cases that the High Court tries every week. This kind of attitude towards life and the disrespect for the law must be discouraged by the Courts.

Bearing all these factors in mind, I accordingly sentence the accused to imprisonment for a period of fifteen (15) years.

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Exhibit 1 shall be forfeited to the state.

N. Majara

JUDGE

For the Crown : Ms Shale and Ms Khubetsoana

For the Defence : Mr Thulo

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