CRI/T/25/84
IN THE HIGH COURT OF LESOTHO
In the matter of :
REX
v
1. FUSI NKU
2. KAMPA NKU
JUDGMENT
Delivered by the Hon. -Mr. Justice B.K. Molai on the 18th day of March, 1985.
This is an application for a ruling of the Court following an irregularity which has occurred in the course of the trial. The two accused appeared before me charged with the murder of the deceased, Makhalemele Lets'oenyo, on the allegations which are not material for this decision
At the commencement of the trial, Mr. Ngakane who appeared for the accused, informed the Court that the defence was admitting the depositions of all the witnesses who testified at the Preparatory Examination except the confession recorded by T. Nomngcongo, the Magistrate. Miss Moruthane accepted the admissions made by the defence counsel and the depositions of all the witnesses at the Preparatory Examination except that of Mr. Nomngcongo were accordingly admitted in evidence in terms of the provisions of Section 273 of the Criminal Procedure and Evidence Act 1981.
The Crown Counsel then called the Magistrate, T. Nomngcongo who testified that on the 26th March, 1984, the two accused separately appeared before him and wanted to make a statement. He administered the usual warning and asked them the preliminary questions the answers to which were recorded on the usual roneod
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form. When one of the deponents (Fusi Nku) was asked whether he had been assaulted, threatened or influenced by any person with the view to making the statement, the reply was that he had been kicked an the eye by one policeman but that had nothing to do with the statement he wanted to make. The magistrate wrote that he too observed that the deponent had a bruised eye. He, however, allowed him to make his statement which was reduced to writing. There was no objection to the witness handing in the statements as exhibits and they were maked Exh, A1 and 2.
It was suggested under cross-examination that the deponents made the statements as a result of the assaults and the statements were,
therefore, not voluntarily made. This, the magistrate denied because Fusi Nku had himself said the injury on his eye had nothing to do with the statement he wanted to make.
The Crown Counsel, however, called P.W.2 Detective Trooper Ralebea to testify that he was the one who took the accused to the medical doctor for treatement of the injuries on their hands which injuries were according to the accused cuts made by their own knives. He further testified that he was the one who filled the medical forms for the accused before taking them to the medical officer and he knew that Fusi Nku had sustained the bruise on the eye when he hit a landrover at the time he tried to climb on it while he was handcuffed. When P.W.2 tried to hand in the medical forms, the defence counsel objected on the ground that it was not true that the witness was the person who completed the forms and what the medical officer had written thereon was just his opinion. Well, the objection was
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allowed on the ground that the forms appeared to have been completed by one Mahase and not P.W.2.
Then the Crown Counsel called P.W.3, D/L/Sgt. Mahase to testify that she was in fact the one who completed the medical forms for the two accused who were then taken to the hospital by P.W.2. She saw the accused before and after they went to the hospital. Apart from the cut injuries the accused, in particular, Fusi had no injuries or bruise on the eye. There was no objection to P.W.3 handing in as exhibits the medical forms which were marked Exhibits B1 and 2.
After P.W.3 had given her evidence, the Crown Counsel said she was closing the case for the crown and I allowed this to happen. The defence counsel then stood up and raised an objection on the ground that a serious irregularity had occurred in that this was a trial within a trial for which the Court should have made a ruling on the admissibi-lity of the confession in the absence of the two learned assessors. The Crown Counsel objected and pointed out that if the defence counsel wanted a trial within a trial on the admissibility of the confession,he should have first intimated so to her.
When at the beginning of the trial, the defence counsel made the admissions which were accepted by the crown counsel that the defence was not going to dispute all the depositions made at the Preparatory Examination save the confession which had been recorded by the magistrate, I thought he had earlier intimated to her that the defence proposed to contest the admissibility of the confessions. I was somewhat taken aback by the crown counsel's implied denial of this. I agree that the defence counsel should have timeously
intimated to the crown counsel that the defence proposed to contest the admissibility of the confessions (Rex v. W. 1963(3) S.A.516 at page 521). But even if it was not timeously made, the
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defence counsel did mention at the start of the trial that the defence was challenging the admissibility of the confessions,
I must, however, confess that at the time the Crown called witnesses into the witness box, I too, had totally forgotten that we were here dealing with a trial within a trial. I, therefore, took no steps to (i) ask the learned assessors to retire; (ii) prevent the handing in of the confessions as exhibits before all the evidence to prove their admissibility had been led, and (iii) prevent the closing of the crown cose before a ruling had been made on the admissibility of the confessions.
I then took the view that in the interest of finality I could perhaps allowed the trial to continue and deal with the question of
irregularity in the course of my judgment. That, as it will be shown in a moment, was not a proper thing to do. After accused 1 had given his evidence in chief, the hearing was adjourned and it was during the adjournment that I had a chance to look at some of the authorities which make it abundently clear that where the admissibility of a confession is in dispute a ruling must be made
after hearing either party before the trial can proceed. (Ralekeke Tsepo v. Regina 1963-66 H.C.T.L.R. at 62 C - E. Failure to do so was clearly an irregularity. The presence of the assessors while the question of the admissibility of the confessions was being dealt with was yet another irregularity prejudicial to the whole proceedings (S. v. Gcaba 1965(4) S.A. 325).
In the circumstances I deem it pointless to continue with this trial and a proper course to follow is to quash the present proceedings and direct a trial de novo before a different judge and assessors. I so order.
B.K. Molai.
Judge.
18th March, 1985.
For Crown : Miss Moruthane
For Defence : Mr. Ngakane.
