CR/264/98 REV/ll/2004
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between:
MPHOBE NTS'OANE FIRST ACCUSED
RATS'UKULU MORURI SECOND ACCUSED
AND
THE CROWN
REVIEW ORDER
Before Mr. Justice W.C.M. Maqutu on the 18th February, 2004.
This matter from the Qacha's Nek Magistrate Court came before this Court on review after the Magistrate had convicted two accused persons and sentenced the accused on the 30th January, 2004. The accused had been charged with Armed Robbery and Attempted Murder.
For armed Robbery both accused had been sentenced to eight (8) years imprisonment for Attempted Murder Accused Number 1 was sentenced to ten (10) imprisonment while Accused Number 2 was sentenced to eight years imprisonment. The crime had been committed on the 5th September 1998. Trial was only commenced on the 21st January, 2001. Apart from taking too long to begin the trial, there are many disturbing features of this trial which have to be dealt with before I can determine whether or not proceedings in this case are in accordance with real and substantial justice.
PRESENCE OF ACCUSED DURING TRIAL
The accused who were before Court had both pleaded - not guilty. The first prosecution witness (PW1) was Rasetipe Nyakane - who was an accomplice witness. PW 1 was read his rights as an accomplice and told if he gave satisfactory evidence, at the end of the Court would direct that he be not charged with the offences charged.
PW 1 commenced his evidence - in - chief. When he got to a point where PW1 dealt with what he, the two accused and another participant in the crime, decided on the robbery. PW1 said he does not "exactly remember who actually hatched that plan." PW1 then sid he had suggested it was not necessary that they take the money of Mr. Khotso the Shopkeeper. The accused were excluded from their own trial by the court. The trial court had concluded PW1 was not giving his evidence freely because of fear.
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The record discloses the following:
"At the juncture the court having realized how terrified PW1 -accomplice is of the accused persons while testifying. I as the presiding officer (not withstanding the vehement objections of defense Counsel) do hereby order that the accused be kept in custody until the close of this trial in an effort to protect the weak against the strong and bully. As it is abundantly clear that the accused is terrified of them. Accused persons are thus remanded in custody."
It was puzzling that the accused persons were excluded from their trial, when Section 173 of the Criminal Procedure and Evidence act of 1981 states unambiquously that:
"Every criminal trial shall take place, and witnesses shall, save as it is otherwise expressly provided by this Act or any other law, give evidence viva voce, in open court in the presence of the accused - unless he so conducts himself as to render the continuance of proceedings in his presence impracticable, in which event the court may order him to be removed and may direct the trial to proceed in his absence.
The record does not show anything that was done by the accused persons to disrupt proceedings or conduct of the accused that rendered the continuance of the proceedings in the presence of accused persons
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inpracticable. Our procedure is that the complaint and his witnesses must denounce the accused publicly and to their face. The accused must also face his accusers. In other words they must accuse the accused face to face. It is never assumed that a witness who cannot face the accused is afraid of the accused because the accused's presence might be intimidating such a witness. There are other possible cogent reason for an accomplice a witness to be uncomfortable in the presence of the accused. Courts sometimes find that such a witness is telling lies about the accused and consequently cannot face him. The unfavourable demeanour of a witness
in the presence of the accused is taken into account in assessing the witnesses' credibility.
Even assuming the witness might have for a good reason been afraid of the accused, there has to be clear evidence before the court for the court to come to such a conclusion. The uneasiness of the witness is not enough. Even where there is definite evidence of threats against a witness, the witness must still meet the accused face to face in court. Witness protection is done in other ways - not by excluding an accused person from his own trial.
With hindsight of having the entire record before me after trial - I am able to detect other reasons for PW1 's behaviour. The Magistrate did not have that advantage because the trial had just begun. PW1 was a bad, and at places an untruthful witness. He pretended not to know the accused very well, when in fact he actually knew them.
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PW1 pretended he had no part in the crime and had in fact dissuaded the others from robbing the shop keeper. He added that at the commencement of the robbery he ran away when firing began. PW3 Maneo Nkesi shows that firing began immediately after an undisguised
stranger had tried to take money from her. According to PW2, firing began when three men went for him while he was in his vehicle. Those three men wore Balaclava hats. PW1 claims he ran away in the presence of Maneo Ramodibedi when PW 2 was attacked while PW2 was still in his motor vehicle. PW2 however says he was taken at gun point to the shop. After scattered money had been collected in the shop he was taken to Mrs. Ramodibedi. In other words PW2 was taken to Maneo Ramodibedi at a time PW1 could not have been there if PW1 ran away as soon as firing began - as PW1 claims he did. If this is so PW1 is clearly not telling the truth . PW1 then claims the stranger involved in the robbery and Accused Number 2 came to his home later, gave him M400.00 and gave him another M400.00 to take to Accused Number 1. It seems to me that an accomplice that was with-holding some of the truth and telling lies at places ought to have been very uneasy and scared in Court.
It was therefore a serious irregularity for the accused to be excluded from their trial when such a crucial accomplice witness was giving evidence against them. The disadvantage and prejudice of what was done became more pronounced when towards the end of trial the accused had to complete their trial in the absence of their Counsel. Their exclusion meant they never saw and heard PW1 the accomplice
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give evidence. Consequently they suffered prejudice when they had to defend themselves because there was evidence against them which they never heard. It is PW1 who links them with the crimes charged as they were never identified at the scene of crime.
PREVIOUS CONVICTIONS AND PENDING TRIALS AS CROWNS EVIDENCE IN CHIEF.
It is a fundamental part of procedure that evidence of previous convictions and facts that could show that the accused is a criminal
or a person of bad character should not be brought as evidence-in-chief at the trial. When the prosecutor heard that the defence of the accused persons was alibi - (that is) they were not in Lesotho but in Matatiele, he called evidence to rebut the alibi that showed the previous conviction of one of them and the pending trial of the other accused for murder.
The Senior Clerk of the Court PW4 brought a record of CR 248/98, which showed that accused Number 2 was charged with theft of a car that he alleged took place on the 3rd September 1998. This car had been brought to Lesotho at a date that is not disclosed. Accused 2 had been joined in that trial on the 28th September, 2008. Accused 2 was convicted on the 11th June, 1999 and sentenced to 3 years imprisonment. The prosecution felt by bringing this previous conviction of the accused in the evidence-in-chief they were merely showing that accused was within the Lesotho borders: the procedural
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prejudice to the accused that is always avoided in criminal cases was not considered by the Magistrate.
After disclosing the previous convictions of Accused Number 2 the prosecutor introduced the Charge Sheet of CR 263/98 which disclosed
that accused Number 1 was charged with murder. In that Charge sheet, it was alleged that on the 5th September, 1998 Accused Number 1 at or near Ha Nts'oane had murdered Bereng Mosothoane by shooting him with a 7.65 automatic pistol,. It is important to note that Nts'oane's village and Tsoapolebolila are according to PW 2 -villages that are within the Sekake area. Indeed even the Charge
Sheet originally referred to the Crime in this case as have been committed at Nts'oane's - it had to be amended. The case of murder was still pending. PW5 the investigating officer gave evidence that Accused Number 1 had confessed to the killing of Bereng Mosothoane and gone to produce the bullets with which he had previously shot Maneo Ramodibedi during the robbery and murder which are the subject of this case. This Charge Sheet was accepted in evidence in chief to show that Accused Number 1 was within the borders of Lesotho. It never occurred to the Magistrate that an accused person is only a suspect - and that his character should never be put in issue unless he himself by cross-examination puts it in issue, and attacks the character of Crown witnesses.
The Magistrate referring to CR 248/98 Exhibit "A" and CR 263/98 Exhibit "B" concluded: "that the effect of Exhibit 'A' and 'B' being court records respectively is to rebut the alibi raised by defence
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Counsel Mokatse - that the accused were still in Lesotho within the area of Ha Sekake during the month of September 1998, apparently causing havoc and raising terror to many of his victims in Lesotho". This inadmissible evidence of a previous conviction of Accused 2 and a charge of murder against Accused 2 and the charge of murder against Accused 1 seem to have partially clouded the judicial vision of the Magistrate. The Magistrate concluded that the accused were in the Sekake Area causing havoc and terror to victims because of this premature disclosure of evidence of the bad character of the accused. This inadmissible evidence affected the evaluation of evidence by the Magistrate to the prejudice of the two accused.
HEARSAY EVIDENCE ABOUT FINDINGS OF BALLISTIC EXPECT EXAMINATION
PW5 gave hearsay examination that the empty shells were fired from by the gun that was found between the legs of the dead man whose murder Accused Number 1 is charged with. It is significant to note that this evidence of the ballistic expert had been the cause of the delay in hearing this case. On the 9th June, 1999 a Magistrate remanding this case had even said:
"I fail to understand why the firearm can take so long for examination from September 1978 to June 1999 ... How long will the accused be in custody?"
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For such evidence of the examination of the firearm never to be given in court by the firearm examiner after the accused had waited for three years for it - is puzzling. By the same token, for the trial court to accept the hearsay evidence of PW5 about this issue and act on it is a gross irregularity.
COUNSEL'S CROSS-EXAMINATION:
At the end of the Crown case the accused were no more represented. Their Counsel was not there, consequently for the Magistrate to associated him with the evidence of alibi was wrong. Counsel does not give evidence when he cross-examines. Counsel merely puts the case of the accused - he cannot (as Counsel) give evidence from the bar. The evidence that substantiated the alibi alibi was given by the accused, it is the evidence of the accused that the trial Magistrate could accept or reject. Since Counsel was not there, at the end of the case he made no submissions on which the Magistrate could comment upon.
HANDING THE PROSECUTION'S FILE TO ACCUSED'S COUNSEL
It is not clear to me why it is claimed the handing over by the prosecutor on the police or prosecution docket to defence counsel
was done in conformity with the judgment of Ramodibedi J (as he then was) in L. Seoehla Molapo v DPP 1997 - 98 LLR and Legal Bulletin 384. This handing over to the Defence Counsel was definitely done
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contrary to what Ramodibedi J had directed. At page 398 Ramodibedi J had protected the contents of the prosecutors docket as follows:
"The Crown shall be entitled to withhold from the accused (or his legal representative) any information contained in any such
docket, if it satisfies the Court... that disclosure of any such information might reasonably impede the proper administration of justice ... disclose the identity of an informer ... endanger the safety of a witness or would not be in the public interest."
Statements, documents in the prosecutor's file were to be made (subject to those conditions) available to the accused to enable him to prepare for trial. The prosecutor was expected not to hide or withhold facts and materials that were supported or proved the accused's innocence. According to Ramodibedi J this was done "to avoid mistrials caused by indiscretions of some police investigators, state experts and public prosecutors who leave out materials or statements favouring the defence" -page 389 of L. Seoehla Molapo v DPP.
. While statements of prosecution witnesses should be given to defence counsel to enable him to prepare for trial, he should never be given the prosecution's entire file. In this case after the prosecutor had handed the entire file to defence Counsel to photostat, the prosecutor claims that accused's defence Counsel took away from the prosecutor's file,
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the supplementary statement of the PW5 - the police investigator. Defence Counsel was so upset that he called for a trial within a trial about that. With tempers having risen in this way, the trial atmosphere became unhealthy. Prosecutors should never depart from the age old traditions of keeping their files confidential. It is incumbent on them to give prosecution witnesses statements to the accused or his counsel - but never hand over their files to be photostatted at shops and cafes in their absence.
The prosecution retains right to confidentiality of its docket from the police. What the accused is only entitled to, is pre-trial
disclosure of relevant statements of witnesses or of Crown witnesses whether the prosecution calls them or not. See Nortje & another v attorney General cafe, & another 1995 (2) SA 460 - at page 480 H Marais J added:
"The contentious subject of state privilege aside, I am not aware of any agitation in the past for stripping the state, in its capacity as a litigant, of its right to invoke the law of privilege. Nor is the desirability of doing so apparent to me. On the contrary I see no reason why the state should not be free to seek legal opinion and to interview potential witnesses without having to disclose to its adversary what it learns as a consequence of doing so."
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In short, the confidentiality of the prosecutor's docket remains - but it should not be used to negate the accused's right to fair trial by permitting the prosecutor to withhold information and statements that might assist in his trial. The prosecutor should not have given the accused counsel the police or prosecutor's docket of the case.
The accusation of the prosecutor that the Counsel for the accused removed PW5 supplementary statement from the prosecutor's docket is not supported by any evidence or indication. In the past police dockets (which were taken over by the prosecutor) had an investigation diary which specified when each and every document was filed in that docket. All documents were also paginated in the docket so that if any document or statement was removed that became obvious - because those pages would clearly be missing from the docket.
This issue of missing documents from the prosecutor's file is broader than has been disclosed. The court was not told where report of the ballistics expert who examined the cartridges from the scene of crime together with the pistol found between the legs of the corpse of Bereng Mosothoane. If there never was such a report then PW5 should not have referred to it and given hearsay about it. It should have been evidence given in court. Likewise if indeed the supplementary report of PW5 did exist - it strike me as strange that this was not the core of the investigator's report. This is particularly so because the keys of PW2's vehicle and the firearm were found between the legs of the late Bereng Mosothoane. These are associated
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with ammunition of that firearm dug out by Accused Number 1. They were a very important element of the case. I do not understand why PW5 could have left them out in his report.
The confession of Accused Number 1 that he robbed PW2, shot Maneo Ramodibedi and murdered Bereng Mosothoane, threw the firearm used and the keys of PW2 vehicle between the legs of Bereng Mosothoane's corpse in order to throw away suspicion from him, should have been given before the Magistrate.
This attack on the integrity of defence counsel, implying that he stole PW5's statement is suspect. It is hard not to conclude that gaps in the Crown case were irregularly filled by inadmissible evidence and blaming defence counsel for the negligence of the prosecutor, - if that supplementary statement of PW5 did in fact exist. I find it tragic that proceedings were derailed by the leveling of accusations and mudslinging between the prosecutor and accused's counsel. The trial within a trial between the prosecutor and defence counsel should not have been allowed. The prosecutor had done what was not permissible in surrendering his file - the consequences of what the prosecutor suspected had nothing to do with the two accused
POINTING OUT AS PART OF A CONFESSION
The other misconception the Magistrate laboured under, was that the accused did not challenge the confession and that it was made
voluntarily. Counsel went to great pains to show that the pointing out
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was a fabrication, it never took place. Consequently for that reason there is no written statement or report about it. It was at that stage that Defence Counsel had to call for a trial within a trial because he was accused by the prosecutor of stealing that statement from the docket which statement in the prosecutors view would have shown that the pointing out was not a recent fabrication. At page 68 of the hand written record of this case the Magistrate said the following about PW5:
"Whereas the police officer, PW5, who is alleged to have drawn up the said amendment report, is not persuasive enough to this court. His evidence is not really of any effect or impact upon the mind of the Court. For this witness not only has an interest in pressing charges against the accused persons but also that the alleged presence of the said document, maybe covering up for his inefficiency in conducting the investigations in this case."
Despite what the court has been said above, the trial court treated the pointing out as not challenged and proceeded also to admit the inadmissible confession statements allegedly made to PW5 the police investigator. In S v Nkwanyana 1978 (3) SA 404 at 405 G up to 406 A Hoexter J interpreting a similar South African provision to Section 229 of the Lesotho Criminal Procedure and Evidence Act 1981 and dealing with the admissibility of a pointing out which forms part of an inadmissible confession said:
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"But that is far cry from the Magistrate's unfounded assumption that Section 218 (2) enables a prosecutor to lead evidence of an inadmissible confession. .. .Nor was this the only irregularity inadmissible under the peremptory provisions of Section 217 of 1971then, in so far as the prosecution is concerned, it remains inadmissible for all purposes. Accordingly the accused cannot be cross-examined thereon."
Confessions of the accused in terms of Section 228 of the Criminal Procedure and Evidence Act 1981 are made before a Magistrate freely and voluntarily and not before policemen. - see Section 228 (2) of the Criminal Procedure and Evidence Act of 1981. So whatever confession accused could have made before a policeman PW5 is inadmissible. In Malefetsane P. Mabope v Rex 1993 - 1994 LLR and Legal Bulletin 154 at page 167 Ackermann JA actually said the admission of forced pointings out and demonstrations was wrong. Ackermann JA specifically said S v Tsotsobe 1983 (1) SA 856 and S v Shezi 1985 (3) SA 900 decided by the Appellate Division of South Africa were clearly wrongly decided.
Nevertheless Section 229 (2) of the Criminal Procedure and Evidence Act 1981 allows evidence discovered in consequence of information from the accused to be admissible notwithstanding that it was against the wish or will of the accused. Section 229 (2) above actually provides:
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"Evidence may be admitted that anything was pointed out by the person under trial or that any fact or thing was discovered in consequence of information given by such person notwithstanding that such pointing out or information forms part of a confession or statement which by law is not admissible in evidence against him on such trial."
In this case Accused 1 is alleged to have made a pointing out of a spot where 38 bullets of a 7.65 pistol, a plastic container/tin inscribed TAXI containing coins amounting to M205.60. If this was all that the evidence of PW5 (the police investigator) that might sometimes be within the provisions of Section 229 of the Criminal Procedure and Evidence Act of 1981 be admissible evidence but PW5 went on:
"Accused Number 1 told me that he used the fire arm now before court, when he committed the alleged robbery in this case, as well as shooting at the woman who was selling beer and then took the money which was in the "Taxi" plastic container. Further that he also killed some one and threw it at his (deceased) feet in order to hide evidence."
PW5 then handed the firearm as an exhibit in this case. This portion of the PW5's evidence makes the pointing out above part and parcel of the inadmissible confession within the meaning of Section 228 of the Criminal Procedure and Evidence Act of 1981. As De Villiers ACJ said in R v Becker 1929 AD 167 at 171, a confession is "an
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unequivocal admission (by the accused) of his guilt, the equivalent of a plea of guilt in a court of law."
In SvMphale & another 1982 (4) SA 505 there, had been a robbery at which (as in this case) the accused persons involved had not been identified. There was a "confession" of doubtful nature part of which included pointing out evidence. Miller JA at 519 CD (after finding a confession had been made) said:
"In the light of the circumstances I have described, it would be unsafe to rely upon statements in the nature of confessions, alleged to have been by the second appellant when he was taken by the police to "point out" certain places."
The trial court misconceived what Ackermann JA said in Malefetsane Mabope & Others v Rex 1993 - 94 LLR & Legal Bulletin 154 at Pages 166 and 167 where Ackernmann JA quotes with approval the Remarks of Grosskopf JA in S v Sheehama 1991 (2) SA 860 at 861 translated in the headnote as follows:
"A pointing out is essentially a communication by conduct and as such, a statement by the person pointing out... It is also a basic principle of our law that an accused cannot be forced to make self-incrimininating statements against his will, and it is therefore inherently improbable that the legislature, with a view to sound policy, could
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ever have had the intention in Section 218 (2) of Act 51 of 1977 to authorize evidence of a forced pointing out."
In this case according to PW5 (after Accused Number 1 had been Charged with robbery,) Accused Number 1 elected to take PW5 to Sekake's to unearth money and bullets of a 7.65 pistol where he had buried it. We are not given the circumstances in which this prisoner could elect to incriminate himself - and then confess to robbery and murder without being taken before a Magistrate in terms of Section 228 of the Criminal Procedure and Evidence Act of 1981. Ackermann JA in Malefetsane Mabope & others v Rex at page 155 said:
"Put differently: when evidence of a pointing out is inadmissible it will not be admissible simply because it forms part of an inadmissible confession or statement."
Once the confession is excluded then the bullets of the 6.75 cannot be linked with this case. A "Taxi" plastic container is like any other plastic container. There are no specific identifying marks by which PW 2 identified the plastic container. PW2 and Malitaba/Maneo Ramodibedi speak of a "Baberton" plastic container when they refer to the plastic container which in fact, was a "Taxi" plastic container according to PW5. It is significant that Malitaba Ramodibedi never identified that container in court. The way these bullets and the plastic container was discovered is fraught with controversy. There is
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no prior written statement made by PW5, the investigator about how they were discovered. The prosecutor in trying to establish the existence of such a written statement out of the blue with no evidence whatsoever accused defence counsel of stealing it. The benefit of the doubt about what really happened between the prosecutor and defence counsel should be given to the accused. I noted that the Magistrate did not check the PW5's notebook to ascertain whether or not the writing concerning finding of the bullets and the plastic container was fresh or different as accused's counsel alleged. Everything that happens in court before the magistrate must be checked and put on record.
EVALUATION AND CONCLUSION
This case took an abnormally long time for a case of its size. It seems to me that there have been irregularities of a serious nature such as hearing the single accomplice (who alone links the accused with the crime) in the absence of the accused. The villagers of the Sekake area, who knew the two accused do not link the accused with the crime. The single accomplice would have needed corroboration. That accomplices evidence struck me as unreliable and false in material respects. The fact that this accomplice witness PW1 was heard in the absence of the accused is a serious irregularity.
The proving of accused previous convictions in the evidence in chief as a method of disproving the accused's alibi was highly prejudicial to the Accused Number 2. This irregularity was compounded by the
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handing in of the Charge Sheet in CR 263/98 in Crown evidence in chief. That Charge Sheet alleged that on the same day and in the same Sekake area Accused Number 1 committed the crime of murder. The fact that an accused person is merely a suspect was lost sight of by the Magistrate. Consequently because of the effect of CR 248/98 and CR 263/98 the learned Magistrate in his judgment commented! "The accused persons were still in Lesotho within the area of Ha Sekake apparently causing havoc and reign of terror to many victims within Lesotho." I have already shown the irregular admission of this inadmissible evidence at the trial stage adversely affected the Magistrate evaluation of facts to the prejudice of the accused.
The inadmissible confession that was given in evidence in chief by PW5 (the policeman investigating the case) showed Accused Number 1 as a robber and murderer of Bereng Mosothoane to hide evidence. Consequently in the Magistrate's judgment the Accused Number 1 was seen as causing havoc and the reign of terror in the area.
The hearsay statement of PW5 that the shells found at the scene of crime were fired by the pistol before court also constitutes a serious irregularity because such ballistic evidence should have been led in court. This is particularly so because as early as June 1999 the prosecutor said he was waiting for it.
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The way that the Magistrate claims PW6, Malitaba Ramodibedi had given evidence which for no apparent reason vanished puzzles me. It is doubtful that in those circumstances a witness gets recalled after the defence case. Normally a record is reconstructed from notes of both the prosecution and the defence and from memory. As this is not a crucial piece of evidence, I will not make a decision on the matter.
I considered whether or not to order a retrial on the basis that the irregularities were such as to render this case a mistrial. I came to the conclusion that a proper trial did take place in which errors of procedure admission of evidence and law occurred. The evaluation of evidence was clouded by these irregularities. These cumulatively led to a failure of justice.
ORDER OF THE COURT
Conviction and sentence against both accused are set aside because of the aforesaid irregularities and the failure of justice that occurred thereby.
w.c.m maqutu
JUDGE
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