C. OF A.
LESOTHO COURT OF APPEAL
appellant in this matter appeared in the High Court on two charges of
murder. He pleaded not guilty. However, he was convicted
by Kheola J.
on both counts. On count 1 he was sentenced to 20 years' imprisonment
and on count 2, 12 years' imprisonment, extenuating
having been found on both counts. The sentences were ordered to run
concurrently on both counts. He appeals both
against his convictions
of the matter are set out fully in the judgment
Court a quo. I deem it unnecessary to set out these facts again
except in so far as they may be relevant for the purposes
with the grounds of appeal and the arguments advanced in their
support. These grounds challenge the findings of the
Court a quo -
convicting the appellant of murder on both counts when the
prosecution had not proved its case beyond reasonable doubt
placing undue reliance on P.W.1's evidence on premeditation to
commit the crime charged yet it was evidenced it was evidently
unreliable and untruthful
referring to the deposition of Jane Jane given at the preparatory
examination but not admitted at the trial, to make a finding
appellant's state of mind on the night of the killings and
rejecting accused's story when it was reasonably possibly true.
issue of the sentence the appeal is in general terms that the
sentences "are too harsh in the circumstances".
to ground (c) of the grounds of appeal referred to above the State
conceded that it was not proper for the Court a quo
to have had
regard to this deposition. However, it is common cause that very
little turns on the reliance which the Judge placed
on this evidence.
no real dispute as to the fact that the appellant killed two people.
One of these persons was his wife. He did so by firing
at her. He also brought to the end the life of a minor child by
firing shots at her and killing her. In essence the
defence of the
appellant was that he had consumed a considerable amount of alcohol
and that he had no recollection of having committed
He was, so it was contended, incapable of forming any intention to
kill or any appreciation of the unlawfulness
of his conduct.
Accordingly he could not be held legally liable for his actions at
the time because of his degree of intoxication.
Indeed he gave
evidence to this effect at his trial and sought solace in expert
evidence by way of testimony from a medical doctor
who saw him some
two years after the event. This witness testified that appellant had
probably suffered from an alcoholic blackout.
A medical report which
summarises the doctor's evidence is Exhibit "B" to the
record and in the relevant paragraph he
"as to his probable state of mind at the time of the
alleged offence I am of the opinion that the accused suffered from an
alcoholic blackout as a result of intoxication and anger
lost control over his actions. He is unable to recall until the
rejecting this evidence as well as the evidence of the appellant
concerning the degree of intoxication to which he had been subjected,
the Court a quo relied very significantly on the evidence of P.W.I
'Mamahali Jane who is the mother of one 'Makhotso Jane who is
deceased under count 2 on which the appellant was convicted. It was
her evidence that some time prior to the incidents in which
deceased were shot and killed by the appellant he had told her that
"he would do something big to his wife" and
that when he
did that thing he would be naked so that the people might think he
was mad. Two weeks prior to these events he had
indeed expressed a
desire to kill his wife when both his wife and the witness were
present in the home that they shared.
for the appellant analysed the evidence of this witness and pointed
to various unsatisfactory features in her evidence.
particularly the fact that during the course of the trial the Court
itself had commented on the tendency of the witness
There were also various aspects of her evidence which were not
witnesses who were present. He also pointed Co the fact that she
conceded that she hated the appellant and contended, therefore,
she had a motive for exaggerating the case against him by virtue of
the fact that it was her child that he had killed. He
urged us to
find that it would be unsafe to rely on her uncorroborated testimony
on such an important issue.
again carefully considered the evidence of the witness and having
given due weight to the arguments advanced by Counsel for
and for the appellant we are of the view that it was unsafe for he
Court Co have accepted this evidence concerning the
state of mind of
the appellant at the time that he committed the crimes in question in
the sense that he had premeditated them.
While there is some evidence
that the marriage was not always happy, this unhappiness seem to be
related only to occasions when
the appellant's mother visited the
appellant and his wife. There is no evidence of any long standing
animosity or friction or previous
assaults or other evidence that
would render the kind of extraordinary statement allegedly made by
the appellant probable. Indeed
it is clear on the evidence - and it
was so found by the Court a quo - that the appellant had consumed a
considerable amount of
liquor that evening and that he had been
angered by the fact that he had been restrained from assaulting the
child of P.W.I and
had lost control of himself. A careful
consideration of all the
before the Court a quo and a an evaluation of P.W.1's evidence
convinces us that it would indeed be unsafe to rely on her
uncorroborated testimony on this issue and that the court erred in
for the appellant urged us that in view of the fact that this was the
finding which underpinned the decision of the Court
a quo to convict
the appellant, he should be acquitted. With this submission I
disagree. It is true that the appellant gave evidence
and that he
testified that from the moment he was insulted by his wife and caught
hold of her, this was the last thing he remembered.
When he regained
his senses he was in the Charge Office on the following day. This
evidence, it seems to us is inherently improbable.
It is extremely
unlikely that alcoholic amnesia would intervene in this extraordinary
manner and that it would specifically cover
not only the events of
the shooting itself but would extend for 24 hours after that. However
when one examines the conduct of the
appellant after the event, this
version becomes not only improbable but incredible. The appellant is
a Corporal in the R.L.D.F.
Two of his colleagues a Private Kotsie and
a Private Senekane testified that on the evening in question between
10 and 11 o'clock
- which must have been shortly after the shootings
- the appellant came to their quarters. According to Private Kotsie
arrived he told them that he was being attacked "where
he was staying" . He said that he did not
the people were who were attacking him. In reply to the question by
Crown Counsel, he went on to say "yes, that there
people who were attacking him and he was
whether his wife was still alive". He also mentioned that he did
not know how he escaped. The witness and his colleague
accompany the appellant to his home. Appellant stopped however, when
they were about to go through the gate of their
home. Re told them
that he did not want to go with them in the direction that they were
going. He was going to take another direction.
The witness never saw
the appellant again. This is hardly the conduct of someone who is
suffering from an alcoholic black-out.
to his condition the witness Kotsie said Appellant was not calm and
that he was shouting. Private Senekane confirms that
says that he appeared to be frightened. Neither of them testified
that he was in a state of advanced drunkenness.
some evidence that the appellant had consumed a considerable amount
of beer. However, none of those who observed him during
either during the events that took place at the time of the shooting
or thereafter, deposed that he was obviously
drunk. It does not seem
to me that it was necessary for the Court a quo to have relied on the
evidence concerning pre-meditation
in order to make a finding
as to the
appellant' s state at the time he committed the offences charged.
There was ample evidence which indicates that whilst
he had consumed
alcoholic liquor, he was certainly not so intoxicated as to have had
and suffered from an alcoholic blackout as
speculatively diagnosed by
the Medical Practitioner who gave evidence. Indeed we find the
evidence of this witness as to the state
of mind of the Appellant at
the time of the commission of the offence unacceptable.
to the fact that the doctor in his evidence says that the probability
of a blackout arises most significantly in persons
been drinking for many many years fairly heavily". Now not only
did the appellant himself testify that he was
not a heavy drinker but
in evidence which was admitted in the Court a quo, Lt. Thahanyane
stated that he knew the appellant well
that he was a quiet man and
that he never had any need to reproach him on account of his drinking
circumstances I am satisfied that the Court a quo was correct when it
convicted the appellant. The finding that the Court
"I am convinced that the beer he had taken had an effect on his
mind but he was not so drunk that he did not know what he
correct and entirely justified.
convictions were therefore correctly made and the appeal against the
convictions is dismissed.
finding of the Court concerning premeditation, which we believe
cannot be sustained, clearly and correctly played a role in
determining the sentence. The presiding Judge says the following in
this regard in his judgment:
"His taking of liquor in order to have courage to kill his wife
is an aggravating circumstance. Taking all the factors into
consideration the accused is sentenced as follows:
In Count I :- Twenty (20) years' imprisonment.
In Count II:- Twelve (12) years' imprisonment.
Sentences to run concurrently."
sentence which the Court imposed in respect of the murder of the
minor child Makhotso Jane where the Court found that there
premeditation was 12 years' imprisonment and in the case where there
was, 20 years' imprisonment.
the circumstances the sentence on the second Count also seems to me
to be appropriate in respect of the first Count.
reasons the sentence imposed by the Court a quo on Count 1 is set
aside. In its place a sentence of 12 years' imprisonment
The sentence on this Count is to run concurrently with the sentence
of 12 years imposed on Count 2.
convictions are confirmed. The sentence on Count 1 of 20 years'
imprisonment is set aside. In its place a sentence of 12 years'
imprisonment is imposed.
sentence of 12 years' imprisonment on Count 2 is confirmed.
sentences are to run concurrently.
at Maseru This 22nd Day of January 1994.
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