C of A(CRI)No. 4 of 2000
R v PHAKISO SEATE
The appellant was convicted by the High Court of culpable homicide of one Khahloe Ntsokotsi and was sentenced to four (4) years' imprisonment. He has appealed to this Court against the conviction only.
The evidence established that on the evening of Good Friday the 1st day of April 1994 the Appellant had an altercation with the deceased. They were both drunk and so was A2 namely one 'Matumelo Lerata who was in the company of the Appellant and who was subsequently
discharged at the trial. The Appellant wrested a timber stick from the deceased and on his own account he subsequently hit the latter with it on the head once and felled him.
On the Crown's own evidence the Appellant was not the only person who assaulted the deceased that night and the post mortem report
reflecting that he had sustained only one wound was in conflict with the evidence of a number of other Crown witnesses including that of police witness PW8.
While the trial court correctly rejected the plea of self defence in view of the fact that the deceased presented no danger to the Appellant at the material time the conviction of culpable homicide was not justified by the facts of the case.
The appeal must therefore succeed to the extent that the verdict of culpable homicide recorded by the trial court is set aside and
substituted by the following:
The accused is found guilty of assault with intent to do grievous bodily harm and sentenced to eighteen (18) months' imprisonment, nine (9) months of which is suspended for three (3) years on condition the accused is not found guilty of assault with intent to do grievous bodily harm committed during the period of suspension.
C OF A (CRI) NO. 4 OF 2000
IN THE COURT OF APPEAL OF LESOTHO
In the matter between
PHAKISO SEATE Appellant
and
REX Respondent
Held at Maseru
CORAM: Steyn P
L. van den
Heever JA
Ramodibedi JA
JUDGMENT
The Appellant and one 'Matumelo Lerata stood trial before Monapathi J sitting with two assessors in the High Court on a charge of murder it being alleged that upon or about the 1st day of April, 1994 and at or near Ha Makoatlane in the district of Berea the accused did one or both unlawfully and intentionally kill one Khahloe Ntsokotsi. The Appellant was convicted of culpable homicide and sentenced to four (4) years' imprisonment while his co-accused was discharged at the end of the Crown case. The Appellant has appealed to this Court against the conviction only.
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It will no doubt be convenient at the outset to comment on the state of the record of proceedings in the matter which has not only greatly perturbed this Court but has also caused considerable inconvenience to it. I point to four main unsatisfactory features namely:
The Office of the Director of Public Prosecutions has failed to certify the correctness of the record of proceedings as enjoined by the Rules and more especially Court Notice No.5 of 1998 contained in Court of Appeal Circular No. 5 of 1998.
There is no index to the record of proceedings with the result that it has been extremely difficult for the Court to keep track of the entire record which runs to 231 pages.
The numbering of Crown witnesses has been done in a haphazard manner and not in the order in which they gave evidence in the Court a quo. For example the order of Crown witnesses in the record of proceedings is as follows: PW8, PW5, PW6, PW3 and finally PW4. There is no evidence of PW1 and PW2 in the record of proceedings and no explanation has been furnished for this curious omission.
The record itself is very poor and unsatisfactory in many respects. There are many passages which are largely unintelligible. The evidence stops on page 211. There is no record that A2 was discharged at the end of the Crown case save in the judgment. In fact, Crown counsel's cross-examination of the Appellant at page 176 reads:
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"CC: While [A2] was still in the box she conveyed the impression to this court that when she left that place she was hopelessly drunk.
DW1: She was not drunk in the manner that she conveyed to the court my Lord.
CC: But you heard when that impression was conveyed before the court?
DW 1: Yes I heard them my Lord.
CC: As far as you are concerned she was telling lies?
DW1: She was lying because we were going together my Lord."
Regrettably the problem of sloppy records is one that has engaged the attention of this Court for a long time but seemingly to no avail. Thus for example in Mayothola Adoro Motlatsi v Director of Public Prosecutions C of A (CRT) No. 6 of 1997 (unreported) my Brother Gauntlett had occasion to sound a strong warning against presentation of shabby and/or incomplete records to this Court. He duly drew attention of practitioners to the above mentioned Court Notice No. 5 of 1998 and warned that if it is not complied with, "adverse consequences (including personal costs orders against practitioners) must inevitably follow in appropriate instances". I respectfully agree.
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The same warning was echoed by my colleague L. van den Heever in R v Molibeli Tsosane C of A(CRI)No.l of 1998 (unreported) in a judgment delivered on 16th April, 1999.
The need for complete and proper records cannot be too strongly emphasised as the fate of litigation may very often turn on the quality of the record alone which is obviously a far cry from true justice. I go further and warn that presentation of shabby and incomplete records does not only reflect badly on the parties concerned but is an insult to the Court itself.
In argument before us Mr. Teele for the Appellant gallantly came to the assistance of the beleaguered Miss Maqutu for the Crown by informing the Court that he duly assisted her in trying to put up a record from shambles, so to speak, over which they had no control. He did not argue that the record (which is the Crown's responsibility) is sufficiently defective to result in a finding that the appellant has been deprived of a fair appeal and therefore entitled to an acquittal without more. Where the record is ambiguous, however, it goes without saying that the appellant is entitled to the benefit of the doubt in regard to what the record conveys.
I now turn to those salient facts which are not in dispute.
It all began on the evening of Good Friday the 1st day of April, 1994. This was Easter Friday and the deceased set out in the company of his elder brother Monaheng Ntsokotsi to the home of one Pheko for beer drinking and dancing. It was during this happy occasion that the deceased was seen dancing with accused No.2 'Matumelo
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Lerata (hereinafter referred to as A2) hugging and holding each other by the waists in the process. This aroused the suspicion of deceased's elder brother Monaheng Ntsokotsi who thought that the two were lovers. He apparently registered his disapproval of the affair by confronting A2 on three different occasions but the couple ultimately disappeared. Monaheng Ntsokotsi went home alone to sleep.
Later that night four friends went from the church they had attended to the place where the events out of which the charge arose occurred. They were PW3, PW4, Teboho and Lefu.
PW3 and PW4 corroborated each other in testifying that at the time they reached the deceased he was in the company of the Appellant and A2. The Appellant was holding a timber stick belonging to the deceased who in turn was asking to have it returned to him. It was at this stage that the Appellant suddenly hit the deceased on the head with the stick in question and felled him. The evidence of PW3 that he thereafter belaboured the deceased with the stick while the latter was lying on the ground injured, was however far from being unconditionally acceptable.
An attempt was made to procure a motor vehicle to transport the deceased to hospital on the same night but all in vain as a result of which he slept at his father's house. He was only taken to hospital on the following morning. He was admitted to hospital but sadly passed away on Sunday the 3rd April, 1994.
The post-mortem report of the deceased's death was handed in in terms of Section 223 (7) of the Criminal Procedure and Evidence Act 1981 which provides as
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follows:-
"(7) In any criminal proceedings in which any facts ascertained by a duly qualified medical practitioner in regard to any injury or state of mind or condition of body of a person or his opinion as to the cause of death of a person, or any facts ascertained by a veterinary practitioner as to any injury or his opinion as to the cause of death to any animal may be proved by a written report signed and dated by such medical or veterinary practitioner and that report shall be prima facie evidence of the facts recorded in it."
At page 144 of the record Mr. Teele for the appellant made it clear that he did not accept the correctness of the content of the report.
The trial court cannot be faulted for having rejected as false beyond doubt much of the evidence of the appellant as to the detail of the events of that night. However, it did not appreciate that there were flaws in the evidence of the Crown also. Miss Maqutu who appeared for the Crown conceded that she could not support the conviction of culpable homicide, and correctly so. On the Crown's own evidence, the appellant was not the only person who had assaulted the deceased that night and the post mortem report reflecting that he had received only one head-wound was in conflict with the evidence of a number of other Crown witnesses, notably that of police witness PW8. Whether they were inflicted before or after the one blow the appellant admitted having struck the accused is irrelevant, in my view, where the evidence that he continued "belabouring" him where he lay cannot on the record be held to be acceptable beyond doubt.
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It follows from the aforegoing that the Crown failed to prove that the blow the appellant gave the deceased caused his death.
Mr. Teele sought to argue that the appellant acted in self-defence. This plea cannot be upheld. On his own admission the Appellant concedes that he managed to disarm the deceased by wresting the timber stick in question from him. The evidence does not show that the deceased presented any danger to the Appellant at the material time when the latter hit him with the stick and felled him to the ground. On the contrary the evidence conclusively shows that the Appellant simply assaulted the unarmed deceased,probably in retaliation for the stone throwing. In this regard the trial court believed the evidence of the eye witnesses PW3 Lerato Khunong and PW4 Tumelo Lerata and rejected that of the Appellant. On all the facts before us, I see no grounds for differing from the conclusion of the court a quo in rejecting the Appellant's plea of self defence.
The appeal must therefore succeed to the extent that the verdict of culpable homicide recorded by the court a quo is set aside and
substituted by the following:-
The accused is found guilty of assault with intent to do grievous bodily harm.
Sentence
Although the Appellant did not appeal against sentence this Court is now at large to impose a suitable sentence by virtue of the fact that the verdict has been reduced from culpable homicide to assault with intent to do grievous. Having said this,
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however, it must be borne in mind that the Appellant's unjustified assault on the deceased was so serious as to merit a suitable sentence as deterrent.
In determining an appropriate sentence the Court must obviously have regard to the fact that the record of proceedings in this matter is so bad and unsatisfactory that it is not possible to know exactly what happened to the deceased on the fateful night in question save for the Appellant's own admissions. In such a situation the Court must lean in favour of leniency. Similarly it has to be accepted that, on his own admission, the Appellant delivered only one (1) blow to the deceased which nevertheless felled him. Both the Appellant and the deceased were admittedly drunk and so was A2.
The other mitigating factors in favour of the Appellant are that he is a first offender and that he has already spent seven months in gaol serving his sentence.
Giving this matter my best consideration I have come to the conclusion that the sentence of four (4) years' imprisonment imposed by the court a quo must be set aside and substituted by the following:-
The accused is sentenced to eighteen (18) months' imprisonment, 9 months of which is suspended for three (3) years on condition the accused is not found guilty of assault with intent to do grievous bodily harm committed during the period of suspension.
M.M. RAMODIBEDI
JUDGE OF APPEAL
I agree:
J.H.STEYN
PRESIDENT OF THE COURT OF APPEAL
L. VAN DEN HEEVER
Delivered at Maseru this 13th day of October, 2000.
For the Appellant: Mr. Teele
For the Respondent: Miss Maqutu
