CRI/T/183/2002

IN THE HIGH COURT OF LESOTHO

HELD AT MASERU

In the Matter Between:

Rex

And

Bokang Faso

JUDGMENT

Delivered by the Honourable Madam Justice N. Majara on the 30^th September 2005

The accused herein appeared before me on the 20th October 2004 on a charge of murder it being alleged that on or about the 16th June, 1995 at or near Molimo Nthuse in the district of Qacha's Nek the said accused unlawfully and intentionally killed one Pholo ea Tona Faso.

He pleaded not guilty to the charge. After Mr Mokuku, Counsel for the Crown made his opening address, Mr Monethi who was then Counsel for the defence applied for a postponement of the matter pending the accused undergoing a psychiatric examination. I duly granted the application and postponed the matter to the 20th November 2004.

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On the 20th November, the Court was informed that the accused had not yet undergone the psychiatric evaluation but after determining that it was not the defence case that he could not appreciate the proceedings but rather that the evaluation was meant to determine his state of mind at the time of the incident, I ordered that the matter be postponed to the 25th November 2004 for hearing, whilst the defence proceeded with arrangements for accused's psychiatric evaluation. On the 25th November, the matter duly proceeded and the crown led evidence.

Facts which are common cause are that on the said date, P.W.I and his brother were drinking at one Chabane's shop when accused arrived and called him outside. P.W. 1 followed him and when they got outside the latter told him that he had just killed that person who had murdered his father. It was P.W.l's evidence that upon examination of the accused he noticed some blood stains on his person. He testified further that at the time the accused appeared normal.

P.W.I then called his brother and relayed the news to him and the three of them who also happen to be related, left together to report the matter to their other relatives. From there they went to the chiefs place to report. The chief

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raised an alarm and people came whereby the accused took them to where the deceased's body was. P.W.I testified further that they found the deceased's body near a river by a forest and that his throat was slit open.

P.W.2's testimony was that he was sleeping on that night when he was woken by P.W. 1. The latter asked him to go with him to his grandfather's place. Upon arrival there he informed them that the accused had killed the deceased. He also confirmed that after the matter was reported to the chief, the accused took the villagers to the place where the deceased was and he saw that the deceased's throat was cut and that he had two (2) open wounds above the eyes, on the chest and above the waist.

P.W.3's evidence was basically the same in that he was also present at the time the accused volunteered to take the chief and other people to the place where he had left the deceased. He went on to show that the accused voluntarily handed over a blood-stained knife to the chief.

P. W. 4 was the investigating officer who told the Court that after receiving a report he proceeded to Molimo Nthuse near a river whereupon he found people gathered around the dead body of an adult male with its throat cut,

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lying on its back. He also observed two wounds above both eyes, two others on the cheek and three on the left thigh. After making enquiries P.W.4 got an explanation from the accused who told him that the deceased had killed his father. The latter then voluntarily handed over to him a yellow okapi knife whereupon he gave him the charge of murder and arrested him.

The medical evidence showed that the deceased died as a result of excessive external bleeding due to the cut trachea and carotid vessels.

During cross- examination of the crown witnesses, the defence practically admitted the evidence and the only issue that they raised in defence was that the accused could not have been normal at the time he committed the murder. All the crown witnesses were however firm that from their own observation, the accused was normal from his physical appearance to the way he conducted himself the whole time up until he got arrested.

Although they did not dispute the killing, the defence elected not to put the accused in the witness box but instead called to the stand, the psychiatrist who carried out the examination of the accused. According to this witness 'testimony, upon examination of the accused, he was able to extract

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some information from the accused about what happened immediately before and after the stabbing of the deceased including his voluntarily going to report the incident. It was also his evidence that under observation, the accused appeared unable or unwilling to recollect the actual stabbing itself.

He however said that from his expert opinion, the accused was not insane at the time he committed the killing as evidenced by his calm state immediately after the incident that even led him to go and report it immediately after. The psychiatrist testified further that his examination revealed the accused to be suffering from functional loss of memory although he did not exhibit any symptoms of that condition.

He added that he was not in a position to say whether the accused's condition was genuine or fake but added that it was possible that accused was malingering and consciously stimulating the loss of memory. He explained that the condition sometimes occurs where a person is apprehensive about an imminent problem/discomfort concerning things such as money, danger or death during wartime or possible imprisonment or the death sentence.

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In his closing argument Mr Mokuku asked the Court to find the accused guilty as charged for the reason that he had not denied the commission of the offence. Secondly, that the accused's defence was not put to the crown witnesses during cross-examination. He added that nowhere in his testimony had the doctor conclusively pointed to accused having been insane at the material time.

Mr Lesuthu, Counsel for the defence submitted that the crown had not proved its case beyond a reasonable doubt for the reason that no investigations were carried out to establish who the owner of the murder weapon was. He premised this argument on the doctor's evidence testified that the accused had told him during the examination that the deceased had accused him of having impregnated his daughter in the past and that since then relations between them deteriorated. He also told him that on that fateful day the two met near the river, got into an argument whereupon the deceased drew out the knife and although he could not recall what happened afterwards, the next thing he noticed was the bloodied knife in his hands and the deceased lying on the ground.

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On the evidence before the court, it has been established without any doubt that the accused is the one who carried out the killing using the okapi knife as he voluntarily reported the incident to P.W. 1, the chief and other villagers. This evidence was never challenged and ownership of the knife was never put in issue. It is a totally new matter which was only raised during the closing addresses.

To accuse the investigators of not having carried out their investigation under these circumstances is a tall order from the defence Counsel. Nowhere was ownership of the knife ever disputed. However, even assuming that the knife did not belong to the accused but to the deceased, that factor alone would not mean that the accused did not use it to carry out the killing. This argument therefore does not take us anywhere.

In addition, nowhere during the cross-examination of the crown witnesses especially P.W.I, was it ever suggested that the accused reported to them what he told the doctor during evaluation i.e. that the deceased had tried to assault him with the said knife. All that he allegedly reported was that he had just killed that person who was responsible for his father's death. The crown's evidence on this aspect remains unchallenged.

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Under these circumstances the only question that this court has to determine is whether at the time he killed the deceased, the accused did not act voluntarily.

In support of the defence case, Mr Lesuthu quoted to this Court the decision of the Court of Appeal in the case of DPP V Mosuoe Moteane where on the basis of the psychologist's evidence the accused therein was acquitted on the ground that at the time of the shooting of the deceased, he was not able to distinguish between right and wrong due to a disintegration of his personality of a temporary nature. It was also Mr Lesuthu's submission that the Crown did not bring its own psychiatrist to rebut Dr Shaikh's evidence and as such had failed to prove its case beyond a reasonable doubt.

As I have already mentioned above, when he took the stand Dr Sheikh testified that during his examination, the accused was unable to recollect the actual stabbing of the deceased. However, the doctor added that from his opinion, at the time of the incident the accused was in full possession of all his mental faculties. His evidence did not disprove sanity on the part of the accused at the time of the incident. Even his apparent subsequent loss of

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memory was explained by the same doctor as highly likely being triggered on deliberately.

On the basis of these facts it is my opinion that this case can be distinguished from the Moteane' case (Supra) in that therein, the psychologist testified with certainty that the accused did not know what he was doing at the time. That was not the position herein. If anything, in casu, Dr Sheikh told the Court that the accused did not suffer from mental illness at the material time.

In his own words he stated as follows under cross-examination; Question: Was his state of mind normal at the time of the offence?

Answer: The quality of his mind was no different from that of any other person except for that resulting from provocation. (I may also add that the provocation was never established by the defence. The doctor relied on what he was told by the accused at the time he was evaluating him.)

Question: Your conclusion?

Answer: It is extremely difficult to say, but if you are asking whether he

was mentally ill or insane at the time - no.

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Question: He could still appreciate?

Answer: Yes. He immediately went back to the village to report

As Mr Mokuku rightly pointed out, the defence did not put their defence to the crown witnesses or take the Court into its confidence by putting the accused in the witness box. Even the version by the defence that the accused was provoked and attacked by the deceased with the knife was hearsay on the part of the doctor. The accused himself neither told this to the Court nor at least to the crown witnesses to whom he immediately reported the incident. For these reasons, the Court accepts the evidence of the crown as true. In the case of Small v Smith 1954 (3) SA 434 the Court stated that;

"Once a witness's evidence on a point in dispute has been deliberately left unchallenged in cross-examination, particularly by a legal practitioner, the party calling that witness is normally entitled to assume in the absence of notice to the contrary that the witness's testimony is accepted as correct. More so particularly is this the case if the witness is corroborated by several others, unless the testimony is so manisfestly absurd, fantastic or of so romancing a character that no reasonable person can attach any credence to it whatsoever. "

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In addition, most of the defence contentions and submissions were based on the doctor's report and viva voce evidence which did not say at the time of the killing the accused was not aware of what he was doing. On the contrary, it was the doctor's evidence that the accused was normal at that time.

In the light of the evidence before the court, I find that the crown has indeed discharged its onus of proving the act of voluntary killing by the accused beyond a reasonable doubt. I also find that unlike in the Moteane Case (Supra) the accused failed to create a reasonable doubt as to whether he had the mental capacity.

VERDICT

The cause of death was undisputedly the cut trachea and carotid vessels resulting from the repeated stabbing of the deceased with the knife. The medical evidence failed to disprove sanity on the part of the accused at the time of the incident or even cast a reasonable doubt.

The Crown has successfully established all the elements of the offence of murder. The killing of the deceased was unlawful and intentional and from

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P.W.l's unchallenged evidence, the accused killed the deceased because as he voluntarily told him, he wanted to avenge the death of his father whom he believed was killed by the deceased herein. The Court was however told that the father of the accused died as a result of a car accident in the Republic of South Africa. This was not disputed by the defence at all.

Unfortunately, because the defence elected not to take the stand, the court was not able to find out from the accused why he believed so, nonetheless, as enjoined by the provisions of Section 296 of the Criminal Procedure and Evidence Act of 1981, the Court finds that this belief is a factor that lessened his blameworthiness.

This is because it is a sad but not uncommon fact that a certain class of people in the community, especially those with minimal or no education at all believe that a person can cause another's death through other means (usually supernatural) than physical. This is especially so with regard to death occurring to people who work in the RSA mines. It is this belief that gave the accused the motive to 'avenge' his father's death.

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In the light of the above reasons I find the accused guilty of the offence of murder with extenuating circumstances.

My assessor agrees.

Sentence

In passing sentence, I take into consideration the fact that accused did not premeditate the death of the deceased as his Counsel rightly pleaded. However, as a Court, I however have the duty to strike a balance between the interests of the accused on the one hand and those of the family of the deceased on the other.

Needless to say, the latter will never see the deceased nor enjoy the same comforts with which he used to provide them whilst the family of the accused will still have the opportunity to pay him visits and once he finishes serving his sentence, to enjoy his company again.

As I have already mentioned above, I also take into account the fact that although not insane at the time of the incident, the accused's mind was negatively affected by his belief that the deceased is the one who caused his

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father's death. I am also cognizant of the fact that this matter has been hanging on accused's head for a period of almost ten (10) years.

Lastly, I take into consideration that whilst incarcerated, the accused will have the benefit of undergoing a rehabilitation process which will help him reintegrate into society a better person. I accordingly sentence him to a period of eight (8) years imprisonment without the option of a fine.

N. MAJARA

JUDGE

Assessor : Mr Makhera

For the Crown : Mr Mokuku

For the Defence : Mr Lesuthu

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