CRI/T/38/84
IN THE HIGH COURT OF LESOTHO
In the matter of :
REX
v
MOTLOMELO MAKOAE
JUDGMENT
Delivered by the Hon. Mr. Justice B.K. Molai on the 19th day of November, 1985.
The accused appeared before me and pleaded not guilty to a charge of murder on the following allegations:
"Upon or about the 14th day of April, 1984 and at or near Mafeteng Reserve
in the Mafeteng district, the accused unlawfully and intentionally shot and killed Albertus Nicholas De Waal."
In the course of this trial, Miss Nku, counsel for the crown, filed a notice of application to lead additional evidence of two witnesses viz. D/Tpr. Lemphane and one Bazil Norman Young, a ballistic expert from the Republic of South Africa. In support of the application, the crown counsel attached the affidavit of the public prosecutor at Mafeteng Subordinate Court, Mr. Joshua Sempe Sempe, who deposed that he did in fact lead the evidence of D/Tpr. Lemphane at the Preparatory Examination proceedings held in respect of the accused
Motlomelo Makoae. The evidence was recorded by the Presiding Magistrate and read back to D/Tpr. Lemphane who attached his
signature as proof that it had been correctly recorded.
Mr. Sempe conceded, however, that he did not lead the evidence of the report of the ballistic expert witness, Mr. Bazil Norman Young. His reason for so doing was that the evidence involved calling Mr. Young
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from the Republic of South Africa with the inevitable costs and delay. The application was moved on 28th August 1985 after it had been served on the 26th August, 1985 upon the Defence counsel Mr. Addy who opposed it on the grounds that there was nothing in the Criminal procedure and Evidence Act, 1981 authorising the crown counsel to follow such a procedure and the so-called additional evidence prejudiced the accused in the presentation of his defence.
Although it appears no where in the typed record of the Preparatory Examination, the evidence of D/Tpr Lemphane who was P.W.13 at the proceedings of the Preparatory examination, does appear in the original manuscript of the record. A careful look at the numbering of witnesses in the index of the typed record of the proceedings reveals that after P.W.12, the typist wrote P.W.14. She has thus not only omitted the deposition but also the numbering of P.W.13.
If by additional evidence is meant the evidence of a witness who did not testify at the Preparatory Examination proceedings, it is obvious, therefore, that the evidence of D/Tpr. Lemphane does not fall in that category.
As regards the evidence of the ballistic expert witness, Mr. Bazil Norman Young, it seems to me there is substance in what the deponent,
Mr. Sempe, says viz. that the calling of this witness at the Preparatory Examination proceedings would have entailed unnecessary
costs and delay. Indeed, this trial has had to be postponed for several weeks by this court because the expert witness was unable to find suitable time to come to Lesotho.
However, I am of the opinion that the Public Prosecutor could have properly invoked the provisions of S.223(4) of the Criminal Procedure and Evidence, supra, and handed in the expert report which is in the form of an affidavit. The advantage of handing it in at the Preparatory Examination proceedings would have been
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that the report would be included in the record of proceedings so that when the record was handed to the accused or his legal representative to prepare for the defence case the accused or his attorney would be aware of its existence.
As the defence counsel was served with the notice of intention to lead the additional evidence of the report of the expert witness before the actual start of the defence case and the report itself was attached to the notice of application it could not, in my view, be argued that the defence was seriously prejudiced in the presentation of its case. I was, therefore, prepared to allow the application to lead the evidence of D/Tpr. Lemphane and the expert witness, Mr. Bazil Norman Young.
It is perhaps significant to mention that after the crown had closed its case in this matter, the defence moved an application for the discharge of the accused on the ground that the crown had failed to establish a case against the accused. The application was opposed by the crown counsel.
As has been pointed out in the case of R. v. Thoabala 1981(2) L.L.R.363 pp. 364-5 the test to be applied in an application of this nature is whether on the face of it the crown evidence established a prima facie case against the accused. At this stage, the court is not obliged to deal with the question of credibility unless, of course, it can be said the crown evidence was so hopeless that to ask the accused person to answer the charge would amount to asking him to help build a case which the crown itself had failed to establish.
In the present case there was evidence adduced by a number of witnesses that accused was seen firing shots in a hotel bar and the deceased sustained injuries which resulted in his death. Without going into the question of credibility it seemed to me, on the face of it, the crown evidence did establish a prime facie case for the accused to answer and I accordingly disallowed the
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application.
That did not, however, mean that the accused was obliged to go into the witness box and lead evidence in his defence. He was perfectly
entitled to tell the court that in that event the defence was closing its case without leading any evidence at all. It would then become mandatory for the court to deal with the question of credibility and apply the more stringent test of proof beyond a reasonable doubt to determine whether or not the accused had committed the offence against which he stood charged.
After the court had ruled that there was a prima facie case, the defence, as it was perfectly entitled to do, decided to close its case without leading any evidence. The court had, therefore, only the crown evidence on which to consider the question of credibility and decide whether or not it had been established beyond a reasonable doubt that the accused had committed the crime against which he stood charged before this court. I shall now proceed to deal with the evidence.
During the course of this trial Mr. Addy council for the defence admitted on behalf of the accused the depositions of Abert Nicholas De Waal, Condie Maisa, Sgt. Mokhesuoe. Sgt. Molapo, Pte Mankoe, Pte Liphoto and Major Hlehlisi who were respectively P.W.4, 10, 14, 15, 16, 17 and 20 at the Preparatory Examination proceedings. The admissions were accepted by Miss Nku, counsel for the crown. The depositions were accordingly accepted as evidence in terms of the provisions of S. 273 of the Criminal Procedure and Evidence Act 1901. and it became unnecessary, therefore, to call the deponents as witnesses in this trial.
The court heard the evidence of P.W.5, Budah Zakhura, who testified that during the day, on 14 April, 1984, he. Ben Maphathe and the deceased had been drinking liquor, first at a butchery and later at the home of Maphatha in the Mafeteng Reserve. Towards the evening of the same day he parted with their company and went to Mafeteng hotel
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where he continued drinking in the private bar till he was again joined by Maphathe and the deceased.
When Ben Maphathe and the deceased joined him in the private bar of the hotel, the latter was wearing his (P.W.5's) hat which the witness had left at the home of Maphathe. During the drinking in the private bar, there was a time when P.W.5 noticed that deceased who was very drunk was engaged in a quarrel with the accused. The accused was a stranger to him (P.W.5) and was wearing a reddish jersy or skipper shirt. The quarrel was over the hat which the accused said the decased should not be putting on in the bar. P.W.5 had to take the hat from the deceased when he heard the accused threatening that he would shoot the deceased.
After he had taken the hat from the deceased, the quarrel ended and the accused left the private bar of the hotel. Later on the same evening P.W.5 noticed a man wearing a dark blanket entering into the private bar and immediately firing shots at the deceased who dropped to the floor. He would not say he clearly identified the blanketed man because a lot of smoke filled the bar and the man walked out of the bar the moment the deceased dropped to the floor. The deceased was carried out of the bar clearly badly injured as he was bleeding profusely. He later learned that the deceased was dead at the Mafeteng hospital mortuary.
On 16th April, 1984, P.W.5 was among the people who were called to an identification parade held behind the police charge office building where he pointed at the accused as the person he had clearly seen quarreling with the deceased in the private bar of Mafeteng hotel.
The evidence of P.W.2, Mafole Sematlane, was that on the night of 14th April, 1984 he was one of the people drinking in the private bar of Mafeteng hotel. He confirmed the evidence of P.W.5 that the deceased and the accused who was a stranger to him (P.W.2) and wearing a reddish skipper shirt were amongst the people drinking
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in the bar. At one time P.W.2 also noticed that there was a browl between the accused and the deceased. Although he did not know what the browl was all about P.W.2 did hear the accused threatening to shoot the deceased. The argument then stopped and he saw the accused leaving the bar.
About an hour later P.W.2 noticed a man wearing a dun blanket entering the bar. The witness did not bother and continued in the discussion he was having with a friend. He suddenly heard shots being fired. There was a confusion as some people ran out of, and others took cover in the bar. He, however, remained stunned in his seat. He could see the blanketed man standing next to the door of the bar holding a rifle which was pointed in the direction of the place where the deceased had been standing at the counter. Although he could no longer see the deceased at the spot where he had been standing, P.W.2 clearly identified the blanketed man as the man he had earlier seen wearing a red skipper shirt and quarrelling with the deceased. Before leaving the bar, the blanketed man again fired a few shots on the floor next to where the deceased had been standing next to the counter.
After the blanketed man had walked out of the bar, P.W.2 stood up and looked around. He noticed the deceased lying prostrate on the floor where shots had been fired. He was obviously injured. P.W.2 then went out for his car and rushed to the police charge office. He reported to a police officer by the name of Semoli. He returned to the hotel in the company of the police and assisted to put the deceased on the car that conveyed him to the hospital.
On Monday 16th April, 1984, P.W.2 was also called to a line up held behind the charge office building to identify a person he had seen shooting at the hotel on the previous Saturday night and he pointed at the accused person.
That an identification parade was held and a number of witnesses, including P.W.2, identified the accused as the person they had seen quarrelling with or firing shots at the deceased was confirmed by P.W.4, W/O Semoli himself.
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I must, however, point out that P.W.4 did not impress me as a very reliable witness. He seemed to have a rather poor memory. A clear example of this is when he told the court that he did not remember ever giving evidence in a Preparatory Examination proceeding, including of this case, during the whole of his police career. It was only when he was shown the deposition he made and signed for at the Preparatory Examination proceeding of this case that he conceded he was wrong.
Although P.W.4 testified that P.M.5 is one of the witnesses who failed to identify the accused at the identification parade which was held on 16th April, 1984 P.W.5, who was an impressive witness before me testified not only before me but also at the Preparatory Examination proceeding that he did identify the accused as the person he had seen quarrelling with the deceased at the hotel on the night of 14th April, 1984. I am convinced that P.W.5 who impressed me as a more reliable witness than P.W.4 was testifying to the truth. I have no hesitation, therefore, in accepting as the truth his evidence and rejecting as false that of P.W.4 on this point.
The evidence of P.W.5 and P.W.2 that the deceased was injured at Mafeteng hotel on the night of 14th April, 1984 was corroborated by Albert Nicholas De Waal whose deposition at the Preparatory Examination proceeding is not disputed by the defence. According to his evidence, Albert Nicholas De Waal is the son of the deceased. At about 12 midnight on 14th April, 1984, he was talking to friends outside Mafeteng hotel when he received a report following which he proceeded into the hotel. As he entered the reception of the hotel he met people carrying out the deceased who was unconscious and bleeding profusely. He immediately assisted in putting the deceased into a car that rushed him to the hospital. He accompanied the deceased to the hospital. At the hospital he rushed to get a doctor. The deceased was placed on a table. He could see that the whole of the deceased's shirt was simply soaked in blood most of which
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flowing from the back. As he tried to speak to him the doctor chased him away and the deceased passed away.
On 15th April, 1984, Albert Nicholas Oe Waal identified the body of the deceased before the medical doctor who performed the post morterm examination at Mafeteng hospital.
P.W.1, Dr. V.D. Lugte confirmed that he was the medical doctor who performed the post mortem examination on the body of the deceased on 15th April, 1984. The external examination of the body revealed a scretch on the forehead above the right eye, a small round wound on the right shoulder, a big wound on the left shoulder and a small wound on the right side of the body. On opening the thorax, the doctor found ½ a litre of blood in the right cavity. There were two holes leading into the cavity of the thorax, one from the right shoulder and another from the left shoulder. The back of the right lung was damaged. On opening the abdomen he noticed two bullet tracks leading one to the lungs and another to the liver. He actually found one of the bullets resting just on the left side of the liver.
From these findings the doctor formed the opinion that the deceased's injuries were caused by bullets with the exception of the scretch on the forehead which was in all probabilities due to a secondary cause e.g. falling. He further formed the opinion that death was due to lung damage with the resultant thoraxic haemorrahage.
To my mind if the evidence of P.W.1 is considered together with that of P.W.5, P.W.2 and Albert Nicholas De Waal there can be no doubt that the deceased died as a result of the injuries inflicted by the person who was firing shots at him in the hotel Mafeteng on the night of 14th April, 1984.
In answer to the question as to when death had occurred prior to his examination P.W.1 wrote "some time (in fridge)". It was argued that someone at the hospital
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might have placed the deceased in the fridge where he died of cold and not as a result of the gun shots. This was in my view, a hair splitting argument for P.W.I did testify before this court and explained that what he meant was that as the body had been kept in a cold fridge it was not possible to determine with certainty the exact date of death.
It now remains for the court bo decide whether or not the accused is the parson who fired the shots in the hotel on the night in question. According to Sgt. Mokhesuoe, Sgt. Molapo,Private Mankoe and Private Liphoto they were members of the Platton that was based in Mafeteng from March to September, 1984. The accused was also a member of that Platton. On 14th April, 1984, the accused was among some of the men who were released to go to town for shopping.
At about 5 p.m. it was noticed that the accused and two other men viz. Pte Mankoe and Pte Liphoto had not returned to the base camp. Sgt. Mokhesuoe testified that at about 9.00 p.m. he was instructed to go to town and look for the missing men. He, Pte Phafoli and Pte Magaleha got into a vehicle and went to look for the men. They in vain called at a number of places in town before coming to hotel Mafeteng. He waited in the vehicle while one of the privates went to look for the men in the hotel. It was while he was waiting there that Sgt. Mokhesuoe saw the accused going out through the hotel gate in the company of two men and a woman. He had no difficulty in identifying the accused as there was enough lighting outside the hotel and he was still wearing the same short sleeved red skipper shirt that he was wearing when he left the base camp in the morning. Sgt. Mokhesuoe called out at the accused who however,did,not reply. Later on, he again saw the accused returning to the hotel and going into the disco hall. The witness and one of his companions went to look for the accused in the hall but could not find him. After waiting in the vehicle for some tine they
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they eventually returned to the base camp. Sgt. Mokhesuoe was warming himself at the fire place outside the tent when he noticed the accused arriving and entering into the tent in which he usually slept. He was still wearing his short sleeved red skipper shirt. The witness also retired into his tent, put off the candle light and slept.
Later that night accused came into the tent in which Sgt. Mokhesuoe, Sgt. Molapo and W/O Nkomo were sleeping. He put on the light and made a certain report. He was then wearing a dun blanket and carrying his AK.47 rifle No. 2L134270. This is confirmed by Sgt. Molapo who testified that following his report he took possession of accused's rifle and found that it smelled gun powder as though it had just been fired. Accused had earlier been issued with 30 rounds of ammunition. When he unloaded the rifle and counted out the bullets, Sgt. Molapo found that 5 bullets were in fact missing.
At about 4.30 a.m. Sgt. Molapo took accused to police charge office where he was handed together with his rifle to P.W.3, Lt. II Ramonate, in the presence of Major Hlehlisi, Lt. Moremi and Lt. Lehloma. This was confirmed by major Hlehlisi according to whom at about between 8 and 9 a.m. on 15th April, 1984 he proceeded to hotel Mafeteng where he was given two used bullets and an empty shell from an AK.47 rifle. He took possession of all these articles and subsequently handed them over to P.W.3 with instructions to continue with the investigations.
In as far as it was material the evidence of Major Hlehlisi was confirmed by P.W.3 who told the court that after he was duly warned, the accused gave him an explanation following which he too proceeded to the private bar at hotel Mafeteng where he noticed a pool of blood next to the counter. He noticed that the floor and the capert next to the pool of blood was damaged. Some liquor bottles were also broken from the shelves. There were holes amade on the walls, the door leading to the reception and one of the Cabinets in the reception.
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Altogether 4 shells of ammunition, two spent bullets and a
bullet cover were found in the private bar. He took possession of the shells, spent bullets, a bullet cover and the AK.47 NO.2L134270. He later handed them to P.W.6 D/Tpr Lemphane for onward transmission to a ballistic expert for examination. This was confirmed by P.W.6 himself who told the court that on 28th May, 1984 he took the articles to Pretoria in the Republic of South Africa where he handed them to P.W.7, W/O Bazil Norman Young.
P.W.7, a trained ballistic expert with 16 years experience, confirmed that on 28th May, 1984 he received from P.W.6 a sealed parcel. At the time he received the parcel he noted its contents in his docket which he brought with him to court.
According to the notes P.W.7 made in the docket the contents of the parcel were in fact an AK.47 rifle No. 2L134270 without magazine and not "with magazine" as it is erroneously typed in the report, five (5) fired cartridge cases, four(4)spent bullets and 3 mild steel cores.
He examined the AK.47 rifle and fired catridges therein for test purposes. He found the rifle to be in good working condition. He then subjected the five(5) fired catridges cases to a microscopic examination and found that they had all been fired from the AK.47
rifle No. 2L134270. Due to damage and the lack of sufficient marks used for identification purposes, it was not possible to determine
whether the four (4) spent bullets and the three (3) mild steel cores had been fired from the AK.47 rifle No. 2L134270 or not.
Considering the evidence as a whole I find, as a fact, that the accused was, on the day in question 14th April, 1984, wearing a red skipper shirt at the time he left the base camp for the town, he was seen in the hotel wearing the red skipper shirt by P.W.2 and P.W.5 both of whom identified him at a subsequent identification parade as the person they had seen quarrelling with and
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threatening to shoot the deceased in the hotel; he was seen at the hotel still wearing the red skipeer shirt by one of his senior officers, Sgt. Mokhesuoe; he was seen by Sgt. Mokhesuoe returning to the base still wearing the same red skipper shirt on the same night. He was identified by at least P.W.2 as the person who entered the private bar wearing a dun blanket and firing shots that fatally injured the deceased; he was seen by Sgt. Mokhesuoe and Sgt. Molapo wearing the dun blanket and carrying his Ak.47 rifle No. 2L134270 which appeared to have just been used at the time he entered the tent in which the two sergeants slept; he made a report to the two sergeants following which report he was immediately handed over to the C.I.D. Officer, P.M.3 together with his AK.47 rifle No. 2L134270 and that five (5) fired catridges cases picked on the scene of crime were found to have been fired from accused's AK.47 rifle No. 2L134270.
In my view all these facts lead to but one reasonable inference namely that the accused is the person who shot at and inflicted the injuries that caused the death of the deceased. The answer to the question. I had earlier postulated viz. whether or not the accused is the person who killed the deceased must, therefore,be in the affirmative.
Both P.W.2 and P.W.5 told the court that as he walked out of the private bar of hotel Mafeteng following his altercation with the deceased the accused threatened that he was going to shoot him. 1 accept the evidence that the accused did in fact return to the hotel and without saying a word aimed a volley of bullet shots at the upper portion of the deceased's body. That being so, there is no doubt in my mind that at the time he shot and killed the deceased, the accused had the requisit subjective intention to kill, if not direct at least in the legal sense. I would, therefore, find the accused guilty of murder as charged.
Both my assessors agree.
B.K. MOLAI
JUDGE
For Crown : Miss Nku 19th November, 1985.
For Defence:Mr. Addy.
EXTENUATING CIRCUMSTANCES
Having convicted the accused of murder we are now enjoined by S.296(1) of the Criminal Procedure and Evidence Act, 1981 to decide the question whether or not there are any factors tending to reduce the moral blame-worthiness of his act.
In this regard we were invited to take into account the fact that prior to the incident that resulted in the unfortunate death of the deceased the accused had been quarrelling with him in the hotel. The obvious in-plication being that there was provocation. Although the provocation was not such that it could exculpate the accused, it must nevertheless be properly taken into consideration for purposes of determining the existence of extenuating circumstances.
Secondly the court was invited to take into consideration the evidence that the accused had been drinking on the night in question and was apparently drunk. Experience has taught us that when they are under the influence of intoxication,people tend to do things they would not do when sober.
In my view, the cummulative effect of the above-mentioned two factors was to reduce the moral blameworthi ness of the accused'act. I come to the conclusion, therefore, that extenuating circumstances do exist in this case and the proper verdict is that the accused is guilty of murder with extenuating circumstances.
SENTENCE:
10 years imprisonment.
