C of A.
(CRI) 7 of 1909

IN THE
LESOTHO COURT OF APPEAL

In the
matter between:

NARO
LEFASO

Appellant

v

REX

Respondent

Held At
Maseru Coram:

Schutz P.

Plewman
J.A.

Ackermann J.A.

JUDGMENT

Schutz P.

The
appellant was convicted of murdering Mampooa Pae Pae, without
extenuating circumstances being found, and was sentenced to death.
He
appeals to this Court against the whole of the judgment.

The
murder took place, on the night of 28 June 1988 at or near Bentele in
the district of Butha-Buthe. The Crown relied principally
upon two
witnesses (PW1 'Mota Pae Pae, and PW2 Mantsoaki Pae Pae) to identify

2

the
appellant as the murderer (identification being in issue) and to
describe the circumstances of the murder.

PW1 was
the son of the deceased, and PW2 is his wife. On the night in
question PW1 was already in bed when he heard the deceased
screaming
"Oh my son Caswell the house is on fire". He woke up his
wife and went out of his house, to find the deceased
outside her reed
house, which was on fire- The appellant, he said, was hitting the
deceased with a knobKerrie. It was a moonlit
night. He raised an
alarm. He said that when the appellant was hitting the deceased she
was already on the gound, and that she
was bleeding from the nose and
the mouth. Like his wife he said that the appellant was wearing a
"donkey blanket". Upon
arriving at the scene PW1 said to
the assailant that "I am now stabbing you since you are killing
my mother and have set fire
to her house". For the purpose of
stabbing he had taker, what he called a "reed". He went on
to say that the assailant,
"ran away when I came near but he
came back and I said I would stab him. It was then that I identified
him to be Naro (the
appellant)". He explained that when he ran
away the first time he immediately turned back, and that it was then
that he (PW1)
took the reed and said he would stab him. When he ran
away the second time the appellant disappeared. He stated that his
house
and deceased's faced one another.

3

He said
that he knew the appellant "very well". The appellant
conceded that PW1 had no quarrel with him, and could give
no reason
why he should consciously implicate him falsely. He said that both
PW1 and PW2 were not telling the truth when they said
they had seen
him on the night in question. He did not volunteer any reason why PW2
should have implicated him falsely. Indeed
the first two Crown
witnesses and the appellant were part of the same community.

P.W.2
largely corroborated the evidence of her husband. She said that it
was the appellant who was hitting the deceased over the
head with a
knobkerrie. She saw three blows struck. The deceased was just next to
the door. Asked about the state of the light
she said, "there
was a flame light as well as the moonlight": and asked in which
direction the house was burning, she
said the front. One Mamoliehi
Pae Pae,, who had been joined as accused No.2 with the appellant in
the magistrate's court, had been
the lover of the appellant, she
said. She was asked if she knew a man called Phamola and she said no.
The purpose of this question
was not explained and it was not
developed.

The
learned Judge a quo believed the Crown witnesses, including the first
two. The appellant's evidence was rejected as false beyond
doubt.

4

The
appellant deposed that on the night of the murder he had been in the
Orange Free State to fetch his money from one Phamola.
He had gone
late (he did not say how late) because he was running away from the
police on the other side of the river. Although
he had a passport, he
did not use it but crossed the river "because that farm (where
Phamola was supposed to be) is very near".
He failed to get his
money. When he returned home he heard of the death of the deceased.
He said he came back "early in the
morning". The transcript
of the evidence of 'Malikeleko Pheello, which had been given at the
preparatory examination, and
which had been put in by consent as
being correct, was put to him. She had said that on the night of 28
June some people had come
searching for him, but he came home "very
early in the morning". The appellant denied this, saying that he
arrived after
sunrise. PW8 went on to say, "He (the appellant)
went away during the day. Police came. Accused disappeared until I
see him
today (at the preparatory). The knobkerrie before court
belongs to accused 1 (the appellant acknowledged that it was his). I
handed
the knobkerrie to Police ....". The appellant said that
on the day of his return home he went back to the Free State where
he
stayed the night. His knobkerrie he left at home. When he again
returned he found it gone. He returned at night as he was runing
away
from the South African Police. He then met his sister 'Mathabang
Khoana (PW6). He told her that it was said that he was suspected
to
have killed 'Mampooa

5

and that
he was going to Butha Buthe police station. On the way there, he
said, he met a policeman in a vehicle The policeman asked
where he
was going and he answered, to the police station. The policeman, he
said, did not arrest him. This is to be contrasted
with the admitted
evidence of PW10, Trooper Khoboliso who stated that on 1 July 1988
(which seems to be the day on which the appellant
says he returned
from the Free State the second time) he was in a public vehicle when
the appellant boarded. He arrested the appellant
when they reached
town, the appellant saying that he was going to surrender himself.

I now
turn to the question of whether the identity of the appellant has
been established beyond reasonable doubt. When this question
is
weighed it is necessary to consider not only whether PW1 and PW2 were
honest (as the learned Judge found they were), but also
whether there
was any reasonable possibility of their being mistaken.

There is
the direct evidence of two witnesses identifying the appellant. He
was no stranger to them. Accordingly those great dangers
of wrong
identification that exist where a witness who has had a limited
opportunity of identifying a stranger, are largely absent
here. The
fact that the witnesses did not offer descriptions of the appellant
is also by the way in a

6

case like
this. Recognition of a person whom one knows is often not easily
defined. All sorts of almost sub­consciously remembered
features,
gestures, movements, shapes, dimensions and so on go to make up
recognition. The question then is whether the two witnesses
had so
sufficient an opportunity of observing the appellant as to exclude
the possibility of error. In my opinion their identification
can be
relied upon. Although it was night, not only was there moonlight, but
the reed hut next to which the deceased and the appellant
were was
ablaze. Moreover, the witnesses could not have been far from the
appellant. The huts of the deceased and PW1 face each
other, and were
so close to each other that he could hear her words when she cried
out. Then, PW1 came close enough to the appellant
for the former to
address him and threaten to engage him in battle. Another small
detail of PW1's evidence impresses me. He did
not claim that he
recognized the appellant when he first went up to him, but only on
the latter's return. This is not, in my opinion,
the evidence of a
careless witness.

Mr.
Moorosi, who appeared for the appellant, contended that the fact that
the evidence did not reflect that PW1 had called out the
name of the
appellant when he gave the alarm indicated that he had not recognized
the appellant. The answer to this contention
is that there was ample
evidence that the appellant was being sought during the night in
question. He himself acknowledged

7

that when
he spoke to his siter he knew that the police were looking for him.
As the evidence was that it was only PW1 and PW2 who
saw him at the
scene of the murder, it must have been they who had named him

.

A further
factor weighing against the appellant is his second trip to the Free
State after he knew that the police were looking
for him in
connection with the murder of the deceased. This was hardly the
behaviour of an innocent man

.

I turn
next to the alibi raised by the appellant. The first problem with the
alibi is that even if the appellant went to the Free
State on the
night of the murder there is no knowing at what time he went, so that
it could have been after the murder. Second,
even if he did go before
the murder, the place to which he went was so close that he could
have come back again during the night
and again returned to the Free
State.

But there
is a more fundamental problem with the alibi, and that is that it was
never put to the Crown witnesses, and first emerged
during the
evidence of the appellant. I have already alluded to the question
about one Phamola which was put to PW2. As I have
remarked it was not
developed. Indeed it was not put to the two eye witnesses even that
the appellant had not been at the scene
of the crime. The need for
the defence to put the salient parts of the defence case to

8

the
relevant Crown witnesses has been stressed by this Court over and
over again. One reason for putting the defence version is
to give the
Crown witnesses a chance to counter it. Another is that Crown Counsel
is entitled to assume that a fact is not in issue
if it has been
deposed to and is not challenged in cross-examination. There is no
call on prosecuting Counsel to call further witnesses
to prove a fact
which is not in issue. From an accused person's point of view failure
to reveal his version before he gives evidence
leads to the natural
inference that he has concocted a version at the last minute, even
though such an inference should not always
be drawn. In this case the
appellant actually admitted that his counsel did not know what story
he was going to tell in the box.
That is somewhat called into
question by the defence counsel's asking about Phamola. It is
difficult to see why he asked the question
if his client had not told
him something about the trip to the Free State or about Phamola.
Either way the appellant is in trouble.
Either he concocted the alibi
or he was shown to be a liar for another reason.

More
generally his story of his nocturnal flittings across the border does
not have the ring of truth. More­over, his counsel
gave up
attempts to find the witness who was supposed to support his alibi,
suggesting he was in custody in South Africa, One would
have thought
that on a matter of such very great importance a more determined
effort would have been made if a witness or witnesses
actually
existed, I would add that the

9

appellant's
credibility fares no better on the extenuation issue, with which I
have yet to deal.

Bearing
in mind that no motive for the crime has been proved, which is always
a cause for concern, and that the appellant bears
no onus to prove
his alibi, I am of the opinion, taking into account what I have said
above that the identity of the appellant
as the murderer has been
proved beyond all reasonable doubt.

Accoringly
I find that the appellant was correctly convicted of murder.

I turn to
the question of extenuation. Extenuating circumstances are such as
reduce the moral, if not the legal guilt of the accused.
The onus of
proving them. on a balance of probability, rests on the accused.

Mr.
Moorosi urged on us that a direct intention to kill had not been
proved, only dolus eventualis based on recklessness. I do not
accept
accept that submission-The appellant was delivering a murderous
assault upon the deceased when she was already on the ground,
and
this assault was interrupted by the arrival of PW1 and PW2. The
medical evidence showed that the deceased's skull had been
stove in,
with an extensive fracture on the left of the head, the skull bones
having been deeply depressed down on the brain.

10

The
appellant led no evidence on extenuation. The judgment on extenuation
reflects that the appellant's counsel argued as follows:
"A
woman 'Mamoliehi whose name appeared time and again in this case is
said to have been in love with the accused. She is
also said to be
the deceased's close relative. The court was asked to take into
account that in the absence of this woman's husband
the deceased had
a high degree of care over her. Accused through his counsel maintains
that 'Mamoliehi has caused the breakdown
of accused's own marriage in
the sense that he and she lived virtually as man and wife. 'Mamoliehi
played on accused's feelings
to the extent that she urged him to get
rid of the deceased who seemed to be interfering in their illicit
love affair. It was projected
as accused's weakness or human failty
that he failed to appreciate that deceased was entitled to live also;
and thus fell to the
temptation of putting her away at the
instigation of his lover 'Mamoliehi."

The first
difficulty with this argument is that in his evidence the appellant
said that he had loved 'Mamoliehi long ago, but that
when the
deceased died they were not in love. The second difficulty is that
there was no evidence to support the artument. It had
been open to
the appellant at the extenuation stage to give evidence again,
contradict his former evidence of innocence, and try
to persuade the
Court that extenuating circumstances existed. This would have
involved admitting guilt. But this the appellant
did

11

not do.
He tried to ride two horses, protesting his innocence (as his
argument in this appeal shows). whilst contending in the alternative

that if he was guilty his guilt was extenuated by facts that supplied
the motive for the murder that he in fact committed. This
is
generally a fifficult posture, and in this case, I think, an
impossible one. He cannot have it both ways. If he had given evidence

anew, admitted guilt and sought to prove extenuating circumstances,
he would have been subject to cross-examination, in which his

subjective state of mind, a matter of great importance, could have
been tested.

This
leads to the third major difficulty. Even if the version argued were
to be accepted, it is far too general, in my view, to
establish
extenuation. The mere fact that a person stands between another and a
desired object does not mean that the murder of
the former by the
latter is extenuated. If it were other­wise a wife who murders
her husband in order to encash the insurance
policies he has taken
out on his life in her favour could be said to have her moral guilt
lessened because of the fact of the husband's
"obstruction".
For the argument raised to succeed it would be necessary to probe the
state of mind and feelings of the
appellant and this presupposes
evidence

.

During
the course of the appeal there was con­siderable debate about the
status, if any, of the argument referred to above,
and in particular
as to whether the

12

Crown had
accepted it as being factually correct. The debate ended
inconclusively. I would stress that in a matter as vitally important

as extenuation, if the defence counsel wishes to rely on an ex parte
statement not based on sworn evidence he should ascertain
clearly
whether the Crown admits its factual correctness. If the Crown does
not, defence counsel must consider whether he will
lead evidence or
not. Needless to say I am not referring to an argument which seeks to
derive inferences (that extenuate) from
proved facts, but an argument
that asserts facts as facts without proof of them themselves.

In the
light of what I have said above I am of the opinion that the trial
court was correct in finding that extenuating circumstances
had not
been proved.

In the
result the appeal is dismissed.

(Signed).......................

W.P. SCHUTZ PRESIDENT

I agree (Signed) ......................

C. PLEWMAN JUDGE OF APPEAL

I agree (Signed) .....................

L.W.H. ACKERMANN JUDGE OF APPEAL

Delivered
at MASERU this 26th day of January, 1990.

For the
appellant:Mr. S. Moorosi

For the
respondent; Mr. Mokhobo