IN THE HIGH COURT OF LESOTHO
In the matter between;
DELIVERED BY THE HONOURABLE MRS JUSTICE K.J. GUNION THE 23rd MARCH 2006
Charges_______________„____murder and attempted murder.
Essential requirements that must be established in urder to secure conviction on both
The crown must establish those essential elements beyond reasonable doubt
Defence of insanity_________________in terms of SECTION 172 (3) (a) (b) CRIMINAL
PROCEDURE AND EVIDENCE ACT NO. 9 OF 1381.
Burden of proof to establish the said defence rests on the accused._________________
Standard of proving of the same is on the balance of probabilities.------------------------
Medical evidence____________________presence or lack of it__________________
Where there is no medical evidence or there is unreliable medical evidence the court is entitled to reach a verdict on the basis of the reliable and competent evidence of eye witnesses.
The accused is charged with two crimes. In the first count he is charged with the crime of MURDER. In the second count he is charged with the crime of ATTEMPTED MURDER. These two crimes were committed together at one and the same time. The accused pointed a loaded gun at his wife who at that time was holding in her arms their six (6) months old baby boy. While so pointing the said gun at his wife, the accused discharged that gun repeatedly. Both his wife and the son were hit by the bullets from that discharged gun. The son died then and there on the spot, from the gunshot wounds. The accused's wife sustained serious injuries as a result of which she was admitted at various hospitals one after the other for medical treatment and management of her injuries.
The crimes were committed at MAFETENG. The accused person's wife was first admitted at MAFETENG GOVERNMENT HOSPITAL which referred her to QUEEN ELIZABETH II HOSPITAL - [QE II] in MASERU for further and better medical treatment and management of her injuries. At QE II HOSPITAL, the accused's wife could not receive sufficiently, the appropriate medical care and attention.
Recognizing its lack of capacity to treatment and manage the patient's serious injuries, QE II referred the accused's wife to a hospital in BLOEMFONTEIN, where arrangements were made for her to receive further and better medical treatment. She remained there for some time. Thereafter she was discharged from the hospital. She however continued convalescing at their matrimonial home from where her parents after seeking and obtaining the accused's permission removed her in order to nurse her better at their own home. She subsequently died while in the hands of her parents. That is why in the judgment she will be referred to as the accused's late wife because by the time these charges were brought against him she was already late.
2. HISTORICAL BACKGROUND OF THE CASE
On the 12th October 2001, while at their matrimonial home, the accused and his wife quarreled. The accused's wife telephone her mother and father-in- law [Pwl and 2], She asked them to come to her home forthwith because her husband's mental illness has resurfaced. The accused and his wife lived at LEHCOP, in MAFETENG with their (2) two children. The accused's parents [Pwl and 2] lived at KHUBETSOANE still in MAFETENG. The accused person's mental illness first manifested itself in 1997 while the accused was out of this country - [he and his colleagues were sent by their employer –
LTC, for a course of training on the job, at MULTI- COUNTRY POST AND TELECOMMUNICATIONS TRAINING CENTRE, in MALAWI], The accused did not complete his intended training due to his mental illness. He left the course and was admitted for treatment at the clinic in that training center. At the end of the course his colleagues came back to LESOTHO but he remained behind or was detained by the hospital because of his mental illness.
The accused was later sent back to LESOTHO in the company of the matron from the training center and the psychiatric nurse from the QUEEN ELIZABETH CENTRAL HOSPITAL, BLANTYRE. He was to be received by an official from LTC who had gone to JOHANNESBURG INTERNATIONAL AIRPORT together with the accused person's father. They had travelled from MASERU, LESOTHO by "motor vehicle as advised by MALAWIAN authorities. There at the airport when the accused noticed this party from LESOTHO, which had come to meet him, he appeared to be annoyed. He walked away from them. They, as a result lost him. The plan was to escort him to the motor vehicle which was to convey them all back to MASERU. He apparently surreptitiously caught a flight to MASERU. Having lost him the party returned to MASERU without him - while under the attack of his mental illness, the accused person's facial appearance changes from normal to fearce.
This is the mental illness the accused's wife was referring to when she told her-in-laws, that they should hurry to her home because her husband's mental illness has re-surfaced.
When the accused's parents arrived at his residence in response to his wife's cry for help, they found that he was not at home. The wife indicated that he has paid a visit to one of their relatives who lives in the same neighbourhood. The accused person's father - Pw2 proceeded to the place indicated. He found the accused. Together they returned home forthwith.
Once they were all present in his house, the accused's wife showed their parents [Pwl and 2] the stab wound on her thigh. She reported that her husband stabbed her with a knife which she was using to cut some vegetables at the time they quarrelled. The wife pointed out that her husband asked her whose child is their six months old baby boy. She replied that it is not his. This was the problem or the cause of the quarrel. The accused pointed out to his parents that he now wants paternity test to be carried out. He was now questioning the paternity of both their children.
The accused's parents noticed that he was not normal. His face had changed from what they knew. His argument that the paternity of his children is questionable, convinced them that he is mentally unhealthy.
According to Pwl - the accused person's mother, their six months old baby boy is the replica of his father - this accused. For asking the obvious he must have sounded stupid. The wife also acted irresponsibly by not giving him the correct answer.
She did not answer the question - "whose child is this?" by saying "it is not yours". He asked a stupid question. He got a stupid answer. Although his parents were convinced that those children are his, they relented and agreed that he, together with his wife and those children should come to MASERU for paternity tests.
TRIP TO MASERU
The accused person's motor vehicle was to be used to bring the party to MASERU. The party was made up of the two children, their mother and father and the accused person's own mother. At QE II, they consulted DR. METSING. The accused demanded that the blood test be carried out in order to determine the paternity of his children. The Doctor advised him that DNA test is more accurate than blood test. The accused insisted that the doctor should take their blood. Obviously he did not know of, nor believe in, DNA test for the purpose of determining the paternity. The doctor took the blood. They were informed that the results will not be immediately available. They will be informed of the same in due course.
His behaviour and utterances, there at the hospital according to his mother, showed everyone that he was not mentally well.
Now that they were already at the hospital, the accused's mother appealed to him to consultt the doctor about his own illness. The accused refused. He ordered everyone to proceed to his car. The complied. They all boarded for the return journey to MAFETENG. Before leaving the city center, the accused stopped his car at the main traffic circle at central business district of the city. He went out of the car. He climbed to the center of the traffic circle. He stood there and shouted a question at his wife who was still seated in the car, "MABATAUNG, did I promise you lots of money when I proposed you to marry me?" The accused person's wife replied, "No". He returned to the car. He got in and drove away. All the traffic that comes in and out of the central business district go through that area. This happened during the day. It must have been quite a spectacle in full view of all the passersby. He should have embarrassed himself and his relatives who were present there with him. This was further indication of the derailed mind according to his mother's evidence.
From there the accused drove his motor vehicle recklessly. He spoke a lot. He said a lot of irrelevant and disconnected issues. Nobody understood what he was talking about. His mother pleaded with him to drive carefully to no avail. He was asked to stop the car. He
refused. He drove all the way from MASERU to MAFETENG, like a madman or as a madman. Every passenger in that car held his or her breath as the accused raised recklessly all the way. It was such a relief when they all arrived safely in one piece back at his residence.
On their arrival back home, the accused person's parents having noticed that he was seriously ill mentally, asked him to allow his wife and children to go with them to their residence at KHUBETSOANA. This according to the accused's mother was a precautionary measure which they decided to take when they observed that the accused's mental health is a really danger to them. He allowed his wife and children to go with his parents to their home. He remained alone behind at his home.
The next morning the accused arrived at his parents' home. He did not ask for or after his close family. He asked for his father who was not present at home. He had gone to church. The accused asked for his father's savings bank book. According to his mother he still appeared mad. His face still looked the same as yesterday. There was no change for the better. His mother gave him the father's savings bank book. He took it and said he had noticed that his father does not have money. He went away with it. After some time he returned. He had deposited some money into his father's savings account. He returned the savings bank book to his mother.
He then asked his wife what they have eaten. Even before she could reply, he offered to bring them something to eat tomorrow and he left. His wife and children spent the second night with the accused person's parents at their residence.
The next day, Sunday the 14th October 2001, the accused person's parents had called the meeting of the members of the extended family to come to their residence to discuss the accused's problem. They came. The matter was discussed. The family decided to separate the accused with his wife. The accused was to be taken willingly or not for an urgent medical treatment. The wife was to be taken without the accused's knowledge to a place of safety at her brother- in-law, at MAPOTENG in BEREA district.
The task of taking the accused for urgent medical treatment was entrusted to his brother and his uncle. They were to talk to him and surreptitiously take him to the doctor where they will seek medical help for him. The meeting ended and the members of the extended family dispersed.
On Sunday afternoon the 14th October 2001, the accused arrived again at his parents' residence. His father was at the stables. The accused's wife and his mother were just seated outside the house. The accused parked his motor vehicle at the garage and marched straight to the pig sty.
His wife and his mother got up and left from where they were seated. The accused's mother went into her bedroom. She made herself busy therein - sewing some items. The accused's wife joined her. She sat on the mother's bed. They were not aware that the accused was now in the house. They heard him calling his wife by name from the kitchen. His wife was reluctant to respond. Pwl -encouraged her to respond positively. She was manifestly scared of him. The accused's mother persuaded her to go to her husband who was calling her. She relented and went. Shortly thereafter Pwl saw her come back running. She asked her what was the matter. She appeared so frightened she could not even talk. Pwl saw the accused come after his wife. He was firing with his gun randomly. The accused father was also chasing after the accused.
He grabbed hold of him. They struggled for the possession of the firearm. His father was trying to disarm him. They wrestled for the possession of the gun which the accused continuously discharge as they wrestled. They both fell. The firearm also fell away from the accused's hand. The accused's mother picked it up. She had noticed that the accused's wife and child have been shot. She decided to run out of the house primarily to look for more help. While looking for more help she decided to find a place to hide a gun. She succeeded in both her endeavors. She found and called one NTATE TIISETSO to come and help. She then proceeded to the residence of one of her sons. There, she hid the accused person's gun.
Immediately after accomplishing those two objectives PW1 returned to her residence.
The police had already been called. They arrived shortly. The body of the dead baby was put into the police motor vehicle which was to convey it to the mortuary. The accused person's wife was also put into the motor vehicle in order to convey her to the hospital. The accused had been arrested. When the police motor vehicle commenced to move the accused asked them to stop. He asked them to allow him to say goodbye to his wife. He was allowed. He was all over her with kisses which rained upon her like that tally of bullets previously from his gun. Some minutes earlier. That was the end of that episode. The accused seemed to have not been even aware of what has happened. He was taken to the MAFETENG police station. He spent the night in the police cell. When he woke up he asked where he was. They [policemen there present] told him that he was in the police cell. He further asked, "why ? what has happened?". They replied that he has massacred his family.
WHAT CONSTITUDES THE CRIME OF MURDER
For anyone to be charged with the crime of murder. There must be (1) an unlawful, (2) intentional (3) killing of a human being by another. CRIMINAL LAW BY C R SNYMAN, third edition, page 401 HUNT.
Three essential elements stick out as necessary requirements which must be established by the crown in order to secure conviction on a charge of MURDER. From the established facts of this case, it is clear that there has been the killing of one human being by another. That such killing was unlawful is in no doubt. What is disputed is the accused person's intention at the time he committed the alleged crime. He, the accused claims that he was sick, mentally and therefore he did not know what he was doing. In other words, he claims not to be responsible for his actions. Two of the crown witnesses who are in fact his own parents, support the accused's claim that he was mentally disturbed at the time he committed the alleged crime. The evidence of the eye witnesses clearly shows this court that two days prior to the commission of the alleged crime, their observations regarding the behaviour and actions of the accused person, were that he was a mad man. As the result of these observations they took away the wife and children of the accused person to their own home for their safety. At the time he paid a visit to his parents' home where his wife and children were, he was observed by his mother - Pwl, that he was still mad. The decision had already been made to separate the accused and his wife who was due to be removed secretly to her brother-in-law's home at MAPOTENG. The accused was due to be taken for medical treatment at the same time when the wife was removed.
But before this plan could be implemented the accused fired randomly - as the evidence showed.
The bullets discharged from his gun at the random shooting hit both his wife and the child who died then and there. The intention to kill is always and invariably gleaned from the established facts and the surrounding circumstances of the case. The intention to kill is seldom expressed. REX V THABISO LETJOETSO 1971 - 72 LLR 177 at 180.
In our present case, the established facts and the surrounding circumstances of the case demonstrate that the accused was mad. The mad man therefore does not have the capacity and ability to form the necessary intention to commit the crime of murder.
THE APPLICATION OF THE PROVISIONS OF SECTION 172 (3) (a) (b) of CRIMINAL PROCEDURE AND EVIDENCE ACT. NO. 9 OF 1981.
This section deals with the trial of insane person. The relevant portion of this Act, to our present case, is subsection (3). It provides-
"When in any criminal proceedings any act or omission is charged against any person as an offence, and it is given in evidence on the trial of such person for that offence, that he was insane so as not to be responsible, according to law for
his action at the time when the act was done or the omission made, then if it appears to the court before which such person is tried that he did the act or made the omission charged but was insane at the time when he did the act or made the omission –
The court shall return a special verdict or finding to the effect that the accused is guilty of the act or omission charged against him, but was insane at the time when he did the act or made the omission and
fhe judicial officer presiding at the trial shall thereupon order the accused to be kept in custody in some prison pending the signification of the King s pleasure" [My underlining]
This proviso seems to suggest that if at the criminal trial the accused is alleged to have committed an offence and there is evidence that the accused was insane at the time he or she committed the alleged crime, he or she should not be held responsible according to the law. The evidence led by the crown during the trial, showed this court that two or so days prior to the commission of the alleged offence and also at the time the alleged offence was committed the accused was according to the eye witnesses a madman whose mental health needed urgent attention.
The crime of murder is a result offence. SNYMAN [supra]. The accused fired at his wife who at that time had in her arms their six months old baby boy. The accused is said to have discharged his gun randomly or aimlessly. But in that random firing the accused hit two people with the bullet or bullets from his gun. One of those
people, his son, died then and there on the spot. As the result of the death of his son the accused is facing the charge of murder. For the death of his wife who died months or so after she was discharged from the various hospitals which treated her for the injuries she sustained during that shooting, the accused, was charged with ATTEMPTED MURDER. For both of these crimes which this accused stands charged, intention is an important requirement. There must be direct or indirect evidence to establish beyond doubt that the accused had the necessary intention to commit the alleged crimes. The existence of such necessary intention may be deduced from the evidence adduced and the surrounding circumstances of the case. REX V THABISO LETJOETSO 1971-73 LLR 177 at 180B SECTION 172 (3) suggests that an insane person is not responsible for his or her action or omission according to the law.
THE ABSURDITY OF THE SUGGESTED VERDICT
The insane person is incapable of forming the intention to commit an act or make an omission according to the meaning of the insane person. According to the Concise Oxford English Dictionary, the meaning of the insane is "seriously mentally ill, in or relating to an unsound state of mind, extremely foolish, irrational". It makes good sense and logic to suggest that where there is evidence led before court that when the act was done or an omission made, the accused was insane, the accused must not be held legally responsible for the
said act or omission. The necessary intention to commit the unlawful act or an omission is lacking in the case of an insane person.
The absurdity of the verdict of guilty of murder but insane was noticed and commented upon the COTRAN CJ. [As he then was] in REX V TSIU MOSALA 1974 - 75 LLR 313 at 315.
At SECTION 172 (3) (a) the proviso stipulates that the court should return a verdict or finding to the effect that the accused js guilty of the act [e.g killing of the deceased]. But was insane at the time when he killed the person in question clearly the person who does not know what he is doing because of his or her insanity, cannot have the intention to kill, and therefore cannot commit murder or attempted murder. The proper verdict in the circumstances, where there is no evidence of intentional killing of a human being, is culpable homicide. REX. V TSIU MOSALA 1974-75 LLR 313 at 315.
MEDICAL EVIDENCE ON THE ACCUSED'S MENTAL HEALTH
The accused was examined by DR. S.P. SHAIKH MB, BS, DPM, PSYCHIATRIST. The accused was admitted at the MOHLOMI HOSPITAL - department of psychiatry, on the 12th July 2005. He was detained for investigations, tests, observation and assessment thereat. He was discharged on the 2nd August 2005. The doctor reached the conclusion that the accused is not only presently fit to
stand trial but that there were no signs of mental disorder presently or in his past history - he concluded that from the clinical notes. He did not recognize nor accepted that the accused suffered an attack of mental illness while in MALAWI. He was convinced that the accused was treated for malaria in October 1997 while in MALAWI.
These findings by this doctor contradict the evidence placed before this court. On the 20/10/1997 the accused consulted the local doctor at QUEEN ELIZABETH II HOSPITAL here in MASERU. In his health book the doctor so consulted has noted that the accused person's blood slide was tested for malaria parasites. None were seen nor found. This test was performed immediately on his return to LESOTHO from MALAWI - where and how this psychiatrist come by the suggestion that the accused was treated for MALARIA while in MALAWI.
FIRST MANIFESTATION OF MENTAL ILLNESS BY ACCUSED
There are letters from the authorities - MULTI - COUNTRY POSTS and TELECOMMUNICATIONS TRAINING CENTRE, BLANTYRE MALAWI to the accused person's employers - LESOTHO TELECOMMUNICATIONS CORPORATION. The letter - dated 29th September 1997 shows that the accused remained behind in MALAWI for treatment and observation. The accused person is said to have suffered headaches and other ailments while in MALAWI. He was sharing a room with one of his colleagues - one MR. LEKUNUTU.
The accused person's behaviour was so strange that his room mate sought refuge in other colleagues room, instead of sharing with his room mate - this accused. On Saturday the 27th September 1997 early in the morning the accused person's room mate went to check upon him in their room. He found him absent But his towel was wet - indicating that it was used and therefore he thought the accused was still present at the center.
At lunch the accused was not seen at the center. Everyone began to worry. The report was made to the matron at the center at 3 p.m. when the disappearance of the accused begin to concern everyone of his colleagues. The matron called the principal - MR. T.J.K MKWAMBA who came to the center immediately he was called. The search for the accused was forthwith commenced. The principal, matron, two colleagues of the accused person and the instructor at the center - one MR. MAFETHE from LESOTHO proceeded to the police station to make a report.
At the police station the party learned that the accused had been attacked by thugs in the early hours of that morning, near the MUDI WATER BOARD. What the accused had gone therefore and how he left the training center nobody knows. According to the BLANTYRE police report the accused was very lucky to have escaped death in the hands of those thugs from whom he was rescued by passersby.
At the time the party from the training center arrived at the police station, the accused had already been sent to QUEEN ELIZABETH CENTRAL HOSPITAL They followed and found him at the hospital.
According to the accused person's colleagues, he had been paranoid for some days before his disappearance in MALAWI. The doctor, at the hospital where he was found after his disappearance from the center, suggested that he might be suffering from SCHIZOPHRENIA. The accused responded favourably to medical treatment he received while detained at the hospital. He was discharged from the hospital when his condition had improved sufficiently to enable him to travel by air back to LESOTHO. He was accompanied by the matron of the center and the psychiatric nurse up to JOHANNESBURG airport.
The evidence of the eye witnesses regarding the accused person's behaviour both at MALAWI in 1997 and in LESOTHO then and also much later during the period stretching from the 12 to 14th October 2001, indicates without a doubt some deficiency in his mental health. The evidence of the accused person's behaviour according to the eye witnesses shows that he was mentally very unhealthy. No one felt safe in his presence during the episodes of his mental attacks. [ for example his room mate left the room to go and seek refuge with other colleague
His parents took and removed his wife and children from his house when the mental illness resurfaced in LESOTHO in October 12th and 14th 2001.
The report by DR S.P. SHAIKH shows nevertheless that there is a history of mental illness in the accused person's family. Pwl told this court about that history too. He also spoke to the accused person's parents who testified before this court about the accused person's mental illness episodes both in MALAWI and in LESOTHO. It is strange that he did not receive information on the accused person's previous episodes of mental illness.
There is sufficient and competent evidence of the eye witnesses that the accused prior to and during the commission of the alleged offence exhibited the signs of mental illness.
Where there is no medical evidence nor where there is unreliable medical evidence the court is entitled to reach the verdict based on the court's considerations of the competent and admissible evidence of eye witnesses.
THABISO TSOMELA V REX 1974 LLR page 97.
REX V SEHLOHO MONATSI and OTHERS CRI/T/22/96
Although the present psychiatric in his report mentions that he spoke to the accused person's parents [Pwl and 2], it is apparent that her was no proper understanding between of issues involved. The accused's parents told the court that they heard and witnessed the attack on their son's mental health for the first time when he was in MALAWI. When he returned they saw him and immediately notice the change in his moods. His facial expression was also different from normal. They did not talk of MALARIA. They also testified to the fact that one of the accused person's uncles was mentally ill. This came out when they were asked about the history of the mental illness in their family. The doctor testified that he was not given the information regarding the accused mental illness in MALAWI. He simply heard of malaria attack. Strangely enough the test carried on the accused immediately upon his return here in LESOTHO revealed no trace of malaria virus in the patient's - this accused's blood.
The accused can and did repeat the events of the alleged crimes because he has had several opportunities to hear them repeated by first by the police at MAFETENG police station, when he required why he was there. Subsequently he heard from his parents, relatives and those who saw or heard what had happened. The accused built his memories from the story as it was repeated by others according to him.
THE ACCUSED IS FOUND GUILTY OF CULPABLE HOMICIDE. IT IS ORDERED IN TERMS OF SECTION 172 (3) (b) THAT HE BE KEPT IN CUSTODY IN SOME PRISON PENDING THE SIGNIFICATION OF THE KING.
Assessors agree with the fact finding in this judgment
Assessors ; Mr. Mathiba, Mr. Mafatle
For the Crown : Ms. Ntene
For the Defence : Mr. Ntsene
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