CRI\T\66\91

IN THE
HIGH COURT OF LESOTHO

In the
matter of :

REX

v

TSELISO
LITHEMPA

RULING

Delivered
by the Hon. Mr. Justice M.L. Lehohla on the 14th day of September,
1992

In a
trial within a trial the statement which the accused allegedly made
before PW7 the learned Magistrate Mrs Nkoko was challenged
as not
having been freely and voluntarily made.

PW7 told
the Court that she did all she could to set the accused at ease in
terms of the guidelines set out in the confession form
and also went
out of her way to find out if the accused had any injuries. In her
observation the accused had none. PW7 told the
Court that in trying
to find out if the statement the accused was proposing to make was
free and voluntary, she went out of her
way to ask him questions not
set out in the confession form because in her experience police do
assault accused persons and exert
pressure on them to adhere to

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false
statements fed to them by the police,

I have no
doubt as to all forms of endeavours made by PW7 to ensure that the
statement given was free of any undue pressures by
police.

What
bothers me though is that without any prompting PW6 Mahleke should
tell the Court in his evidence in chief that the accused
had spent no
less than a week in police custody, attending checkups in respect of
serious injuries received from anti-stock theft
people before being
taken before the Magistrate for making his free and voluntary
statement. If the police had nothing to do with
those injuries then
it seems nothing would have prevented them from taking the accused
before the Magistrate regardless of those
injuries and leave it to
the Magistrate to say whether she would take down the confession
nonetheless.

As it is,
the Magistrate has been denied an important opportunity to observe
the injuries in respect of which the accused was still
being treated
when he came before her; but was not able to observe them because
they did not show and because the accused fearing
that he would
suffer further assaults at the hands of the police if he told her of
them, failed to disclose them.

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The Crown
seeks to discount that these injuries were caused by the police and
relies on unsubstantiated hearsay statement that these
were caused by
anti-stock theft people. The simple rule of procedure is that he who
asserts must prove. There is no evidence or
proof that these injuries
were caused by anti-stock theft people. There is not even an
allegation that the culprits were charged
or brought before the law.

There is
merit in the submission that the learned Magistrate is enjoined to
investigate fully the circumstances under which a confession
before
her is made. She in this case tended to rely on what the accused told
him. Yet the accused says he feared telling her the
truth for fear of
what would befall him if the police got to know of it. Thus she was
denied the opportunity to conduct the investigation
as stipulated in
the confession form. The fact that even when brought before her the
accused was still attending medical check-ups
was a matter of great
surprise to the learned Magistrate when told of it in this Court.

The Crown
failed to say why the accused stayed for so long a time before being
brought to confess. Such length of time can properly
be taken into
account in determining the voluntariness of a statement made before a
Magistrate.

The
Court, of course, attaches not much importance to the

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statements
by the accused's witnesses that he told them he was burnt in the
course of assaults meted out to him.

The
gravamen of the matter is that the Crown has failed to lead evidence
showing that in fact the accused had been assaulted by
anti-stock
theft people before coming into police custody where he remained
attending treatment and check-ups before being brought
before the
Magistrate for confession.

The Crown
made merit of the fact that the accused did not gainsay the statement
that he had already been assaulted by anti-stock
theft people before
coming into police custody. But that statement was partly hearsay and
partly unsubstantiated in the event that
it could be said injuries
were observed on him when he was taken into custody. Further more
there is authority in Criminal cases
for the view that a criminal
trial is not a game where one side is entitled to take advantage of
an omission by the other. The
Court is unable to readily take
judicial notice of criminal practices of so-called anti-stock theft
people. In fact to do so would
be paying ditto to lawlessness in our
society. It would be unsafe to admit a confession in circumstances
set out above.

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The
confession is ruled inadmissible.

JUDGE

14th
September, 1992