C OF A (CRI) 4A/07
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:-
MOLISE MOSENA APPELLANT
and
REX RESPONDENT
CORAM:
STEYN, P
RAMODIBEDI, JA
MOFOLO, JA
JUDGMENT
SUMMARY
Appellant convicted of murder. Extenuating circumstances having been found sentenced to 20 years imprisonment. Appeal directed at sentence only. Court of Appeal of the view that conviction of murder not sustainable. Right of Court of Appeal mero motu to alter conviction from murder to culpable homicide. Circumstances in which it will do so debated. Numerous misdirections by court a quo identified. Credibility findings to be made responsibly. Conviction of murder set aside and conviction of culpable homicide substituted therefor. Sentence of 6 years (2 suspended) imposed. Reasons of such sentence recorded.
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The appellant was convicted in the High Court by Mahase J of the crime of murder and sentenced to 20 years imprisonment. An appeal to this Court was noted against sentence only. However when the matter was called we intimated to both counsel that the Court was of the view that it would like to hear argument as to whether the conviction of murder was justified by the evidence adduced at the trial and whether or not only the crime of culpable homicide was established. In this regard the Court relied on the power conferred on it both by the Court of Appeal Act ("the Act") and the Court of Appeal Rules ("the Rules"). See in this regard Sec. 9(1) of the Act which reads as follows:
"Subject to subsection (2) on an appeal against conviction the Court shall allow the appeal if it is of the opinion that the conviction should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or on the ground of any wrong decision of any question of law, or that on any other ground there was a miscarriage of justice, and in any other case shall dismiss the appeal. "
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Rule 4 (Notice of Appeal) Sub-rule 5 reads as follows:
"(5) The appellant shall not argue or rely on grounds not set forth in the notice of appeal unless the Court grants him leave to do so. The Court, in deciding the appeal, may do so on any grounds whether or not set forth in the notice of appeal and whether or not relied upon by any party."
For the reasons set out below, we were prima facie of the view that a miscarriage of justice had occurred. The verdict, justified by the evidence, which it appeared to us should have been returned was "guilty of culpable homicide". A sentence which would be appropriate for this crime should then be determined.
We broached the matter with counsel for the Crown and we gave her an opportunity to consider the matter and also to consult senior members of her office. She did so, returned to Court and advised us that it was the Crown's view that it could not support a finding that the appellant was guilty of murder. She informed us that a proper verdict would be "guilty of culpable homicide".
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In view of what we set out below this approach by the Crown was not only commendable but fully justified by the facts. These are the following:
The deceased and the appellant were friends. On the day in question they, as well as the two eye-witnesses called by the Crown, drank a considerable amount of alcohol. Indeed, the appellant was on the evidence, very drunk, having been drinking all day from 6 am until the early evening of the day on which the deceased died. This drinking spree took place at the home of one of the eye-witness, PW 1.
There was a verbal altercation between the wife of the deceased and the appellant. The latter used abusive language towards the former, triggering an intervention by her husband. Words were then exchanged between the appellant and the deceased and a heated argument ensued. What happened next
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is disputed. The Crown version was that the appellant drew a knife and stabbed the deceased twice. After the second stab wound was inflicted the deceased fell down and died from a stab wound which I would describe below. The appellant's version was that the deceased was armed with an iron rod with which he struck him "the appellant" on the forehead. It was then, so the appellant testified, that he stabbed the deceased.
The court a quo accepted the version deposed to by the two eye-witnesses called by the Crown, PW 1 and PW 2. It rejected the evidence of the appellant. However, in arriving at this conclusion the Court misdirected itself in several respects and ignored undisputed evidence corroborating that of the appellant. I set out the relevant facts supportive of this finding.
7.1 When PW 2 testified he was asked by Crown Counsel "were they fighting or how did the stabbing happen?".
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To this question PW 2 replied: "it was a fight". It is true that in response to a leading question which should never have been allowed to be put, the witness then resiled from his prior statement and said that there was no physical fight between these two persons.
7.2 In this regard it must be noted that it was common cause that on the evening in question the deceased was in possession of an iron rod. It seems highly probable that this weapon would have been used by him if he had been assaulted by the appellant. It also seems probable, indeed almost certain, that the first stab wound inflicted by the appellant caused a superficial wound of 1 centimetre on the left shoulder. There would therefore have been ample opportunity for the deceased to have used the iron rod as a defensive weapon against the knife assault.
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7.3 Of critical importance however is the fact that it was clearly established beyond any doubt that when the appellant was arrested he had a "big wound" or wounds on his head and received medical treatment for his injury. It is true that the police officer hid this fact from the Court and it was only after extensive cross-examination that the police officer, PW 3, conceded that the appellant had sustained wounds on his head. At the time the appellant testified there was still a big scar to be seen on his head. Although PW 3 originally contested these facts, he ultimately admitted that the wound or wounds were of such a nature that they obliged him to take the appellant to see a doctor for treatment.
7.4 I find it astonishing that the learned Judge in the Court below attributed no significance whatsoever to this undisputed evidence which was confirmed by
the appellant under oath.
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7.5 The Court also accepted holus-bolus the evidence of PW 1 and PW 2. It should be noted that their evidence was contradictory in several material respects. It must be borne in mind that this was a drunken brawl and both the contestants and the spectators were inebriated. It is unacceptable that the ipsissima verba of two drunken witnesses who depose to differing versions of the events should have been uncritically accepted.
7.6 There are two other misdirections of significance in the judgment of the Court. The first is that it incorrectly stated that the deceased was stabbed twice in the neck area. The post-mortem report makes it clear that there was only one wound on the neck and that the minor injury inflicted on the deceased was located on the left shoulder. The Court also says that -
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"the Crown has also successfully negatived the accused story that he sustained some injuries in (sic) in the hands of the deceased. "
7.7 As I have pointed out above far from negativing the accused's story that he was injured, PW 3 confirms not only that the appellant had sustained wounds on the head but also that he had taken him for medical treatment. The only qualification which PW 3 imported was that he did not recall "if his wounds were too deep". The reasoning of the court a quo is therefore fatally flawed and we are accordingly obliged to assess the merits of the appeal without the assistance of its findings both as to the facts and as to the creditworthiness of the witnesses. In the South African Law of Evidence Zeffertt et al (formerly Hoffmann and Zeffertt), Chapter 24 pp. 782-783 the authors comment as follows on the question of an Appeal Court's duty in the event of material misdirection of fact by a trial court.
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"Where there has been a misdirection of fact, the appeal court is at large to disregard the court a quo's findings, in whole or in part......and come to its own conclusions. "
See also the seminal judgment by Davis A J.A. in Rex v. Dhlumayo and Others 1948 (2) 677 (A) more particularly the reasoning at pp. 699 - 703. At the former page the learned judge says:
"The appellate court must steer its way between the Scylla of interfering too readily with the judgment on facts of a judicial officer who has had the opportunity of seeing and hearing the witnesses, an opportunity which it itself unfortunately has not had, and the Charybdis of not interfering when, making due allowance for those advantages, it is satisfied that the evidence taken as a whole cannot support his conclusions. "
At p. 701 he adds that:
"the decision of a Judge on fact, even one based on credibility, may be upset if either the reasons which he gives in support of it are unsatisfactory or if it appears with sufficient clarity from the record itself to be wrong".
He concludes by saying:
"But his reasons may appear to be quite satisfactory as far as they go; yet the record may, for instance, disclose that he has wholly failed to take into account other facts, or some probabilities, which may more than counter-balance the reasons he has given and which convince the appellate court that the decision was wrong".
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Our Courts in Lesotho have dealt similarly with this issue. See in this regard Lempe v Rex 1995 - 1999 LAC 359 at pp. 389 -390 and Maboka and Ano. v Rex 2000 - 2004 LAC at pp. 20 - 21. I have adopted this reasoning for the findings recorded above and it is on this basis that I have re-evaluated the evidence and concluded that the decision of the trial judge cannot stand.
A cautionary note should be recorded in this regard. In dealing with an important component of a credibility finding i.e. demeanour the authors of the work. "The South African Law of Evidence" cited above and at Chapter 5 pp. 140-141 say that:
"The value of observing the witness's demeanour is perennially stressed in appeals upon questions of fact, but its importance should not be exaggerated. "
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The significance of this cautionary comment is illustrated with reference to South African Case Law and the authors say the following:
"The Constitutional Court (in South Africa has said in President of the Republic of South African and Others v South African Rugby Football Union and Others that an over-emphasis on the advantages of the trial court may make an appellant's right of appeal "illusory"; that "[t]he truthfulness or untruthfulness of a witness can rarely be determined by the demeanour alone without regard to other factors including, especially, the probabilities"; and, that a danger closely related to findings of demeanour, "is the implicit assumption ... that all triers of fact have the ability to interpret correctly the behaviour of a witness, notwithstanding that the witness may be of a different culture, class, race or gender and someone whose life experience differs fundamentally from that of the trier of fact. " Also cited with approval are the comments of Diemont J.A. in S. v Kelly 1980 (3) S.A. 301 at 308 B-G where he says:
"There can be little profit in comparing the demeanour only of one witness with that of another when seeking the truth. In any event ... demeanour is, at best, a tricky horse to ride. There is no doubt that demeanour - 'that vague and indefinable factor in estimating a witness's credibility (per Horwitz AJ in R v Lekaota) - can be most misleading. The hallmark of a truthful witness is not always a confident and courteous manner or an appearance of frankness and candour. As was stated by Wessels JA in
Estate Kaluza v Braeuer more than half a century ago in this court:
"A crafty witness may simulate an honest demeanour and the judge had often but little before him to enable him to penetrate the armour of a witness who tells a plausible story. On the other hand an honest witness may be shy or nervous by nature, and in the witness-box show such hesitation and discomfort as to lead the
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court into concluding, wrongly, that he is not a truthful person. " The learned authors conclude by saying "Demeanour should be allowed only to reinforce a conclusion reached by an objective assessment of the probabilities, or possibly to turn the scale when the probabilities are evenly balanced. "
See in this regard also the authorities cited by the authors under Note 120 on pp.141.
10.1 would add one further consideration. The right to make credibility findings is a powerful weapon in the armoury of a trial court. For this reason it should always be used responsibly. To employ it in order to bolster a questionable finding is not only irresponsible, but can, if so invoked, impugn the integrity and sustainability of a court's reasoning.
11. 1 .If one evaluates the evidence as a whole the following picture emerges. Those present at the home of PW 1 drank heavily on the day in question and a great deal of liquor was consumed over a long period of time. The overwhelming probability is that all of those present became intoxicated.
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Indeed it is common cause that the appellant was very drunk. Not surprisingly, irrational arguments occurred, verbal abuse was bandied about only to be superceded by a physical confrontation between the appellant and the deceased. At some point the appellant produced a knife and inflicted the superficial wound described above on the left shoulder of the deceased. The deceased responded by striking the appellant on the head with an iron rod causing a wound or wounds on the head which were serious enough to cause the police to have him treated by a doctor. The appellant then stabbed the deceased in the neck and inflicted the mortal wound thus causing his death.
12.It was not contended before us that this evidence could constitute a factual premise which would sustain a plea of self- defence. However, the fact that the appellant was heavily intoxicated and was enraged by the verbal abuse, compounded by being struck on the head by the deceased,
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constitute factors which would negative the inference that he intended to kill the deceased when he stabbed him. In so far as he did so in retaliation, he clearly exceeded the bounds of self-defence and must be held liable for this unlawful conduct. He is therefore found guilty of the crime of culpable homicide.
13.1 come to deal with the question of sentence. Obviously the degree of appellant's moral guilt must be reduced by the fact that he has been convicted of culpable homicide and not of murder. The cumulative effect of the provocation of having been struck on the head with an iron rod, the hot-tempered verbal exchanges between the appellant and deceased in their highly intoxicated state, undoubtedly serve as factors mitigating his, admittedly, unlawful conduct. Nevertheless, his conduct was inexcusable and he should be punished appropriately. A fitting sentence in these circumstances in our view would be:
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6 years imprisonment, 2 years of which are suspended for 3 years, on condition that the appellant is not convicted of a serious assault on the person of another committed during the period of suspension. The sentence is back-dated to the date of his sentencing by the High Court; i.e. the 15th of May 2007.
President of the Court of Appeal
I agree:
M.M. RAMODIBEDI
Justice of Appeal
G.N.MOFOLO
Dated the 24th of October 2007.
For the Appellant : Mr. Mokoko
For the Respondent: Ms. K. Khoboko
