CRI/T/5/2003

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

REX

vs

MAKALO
MASELELA

RULING

(Application
for discharge under

Section
175 (3) of the Criminal Procedure

and
Evidence Act 1981)

CORAM :
HON. MR JUSTICE S.N. PEETE

DATE : 9th DECEMBER 2005

Headnote

Application
for Discharge under Section 175 (3) of the Criminal

Procedure
and Evidence Act 1981 — Deceased fatally shot in a "delayed
fire" — Time to deflect gun to a safer
direction —
"Hang fire" distinguished - What constitutes negligence in
the circumstances.

2

Where at
the end of the crown case, an application for discharge is made in a
case of a fatal shooting on the ground that the deceased
was shot in
a "delayed fire ", but in circumstances where the accused
could have deflected the gun towards a safer direction
before the
fatal discharge,

Held: The accused should have exercised more and special care after
the firearmed had jammed and had a "delayedfire ";
failure
to deflect the gun to a safer direction constituted a prima facie
case of negligence.

[1] At the close of the crown case, Mr Teele, Counsel for the
accused, had made an application for the discharge of the accused

under section 175(3) of the Criminal Procedure and Evidence Act of
1981. It was common cause that the deceased died as a result
of a
bullet that came from a gun (a 9mm) pistol that was in the hands of
the accused at the time of the fatal shooting.

[2] To the charge of murder the accused had originally pleaded not
guilty and the crown led witnesses who showed that on the morning
of
the 23rd March 2002 they were retiring from Smith's Liquor Restaurant
where they had been drinking liquor for the whole night;
and earlier
on previous evening, the accused had even accosted one Moeketsi with
a beer bottle.

[3] P.W.1 Seabata Khiba had informed the court that as they were
walking away from the restaurant, the accused had suddenly appeared

and just shouted ilLitsotsi .... Meeting off - and as he then pulled
out a gun, a shot had rung out and his friend (deceased) had
fallen
down.

3

[4] Mr Teele, for the accused, put to this witness the accused's
story namely; that as everyone was departing in the morning,
he could
no longer see his colleague and became worried that he could perhaps
be in danger.

[5] He then saw the deceased amongst people and that when he
inquired what deceased's business was with those people, one of them

came towards him saying "we are looking for this one."

[6] He says he took out the gun and pointed it up in order to shoot
into the air. He says he pressed the trigger but heard just
a click
and no shooting and that when he brought it down the gun suddenly
fired — hitting his colleague the deceased mortally,
and that
when the gun was later examined in Leribe a spent shell fell out.

[7] The 9mm pistol with 6 rounds had previously been issued to the
accused on the 18 March 2002 for guard duty at Lesotho Bank.

[8] Trooper Moiloa had rushed to the scene and after finding the
deceased with a bullet wound on the left shoulder, they had rushed

deceased to Motebang Hospital where he died soon thereafter.

[9] Moiloa then asked the accused to surrender the gun he had been
handling when it fired a shot; he told the court that as he
cocked it
three times "an empty shell f ell out ...this is not normal"
because as the 9mm fires, an empty shell is ejected
automatically.

4

[10] Inspector Pali, a firearm expert at Police Headquarters
Technical Support Services informed the court that his specialty
is
firearm examination and had received more that ten years training
prior to his certification in the U.K. in 1998 and that he
found the
pistol brought for examination to be in still good condition being
relatively new. He says he found that the fired bullet
had been fired
from the pistol.

[11] He went on to describe what he called "hang fire" and
"delayed fire" and that in the case of the former
the fault
lay in the bullet whereas in the latter, the fault lay in the firearm
(malfunction).

[12] He conceded in both cases the safety catch must have been
manually released into the firing position.

[13] He also conceded that in their basic firearm training, the
police recruits were not told about possible malfunctioning like

"hang or delayed fire" save to teach them the safety rules
like "Don't point the gun at anything you don't wish
to shoot;
be sure of your target before pulling the trigger", "watch
the gun muzzle" "avoid liquor when handling
firearms"
etc.

[14] Under cross examination he conceded that disregard of these
rules can cause accidental or unintended shooting.

5

[15] "Delayed fire" is firearm related (Expert Evidence -
Freckelton and Selby 8 -3106 cited by Mr Teele). "Hangfire,"

according to these authors, is the result of slow ignition of the
bullet propellant. Hang fire cannot be blamed for hitting some
one
when the gun was inadvertently pointed in an unsafe direction because
the time between the pulling of the trigger and the discharge
is
negligible - "in fact it is of the order of a few milliseconds".

[16] "Delayed fire" on the other hand is related to the
firearm malfunction and can take up to 60 seconds between the

pressing of the trigger and the actual firing and there is
significant delay which would allow time to move or deflect the
muzzle
from pointing in an unsafe direction to safer direction -
[86.1390].

[17] In his submission Mr Teele has rested his whole application on
the issue of "delayed fire" which is firearm related
and
which relatively has more time after the pulling of the trigger.
Indeed, in my view, when delayed fire — unlike hang
fire —
occurs and the firearm is inadvertently pointed in an unsafe
direction, it can be deflected to safer direction. Circumstances
of
each case will however always be decicive in determining the
possibilities and probabilities.

[18] That is where the human factor comes in! In the case of
"delayed fire" - the pertinent questions are: what did
this
accused do after pressing the trigger to shoot into the air and the
gun just clicked? Did he lower it down pointing in an
unsafe
direction and towards the people - including the deceased - who stood
a distance in front of

6

him? Once the loaded gun did not fire when he pressed the trigger
-common sense and sheer prudence (and not technical or special

knowledge) - dictated that more care be exercised in handling that
gun; this did not need special police training —just common

sense that "this gun can shoot at any time". Every man
knows that a gun is a lethal weapon and once a trigger his been

pressed a fatality may occur.

[19] Had he not taken liquor — something he ought not to have
embarked on when he was handling a loaded firearm; had he
not
consciously released the safety-catch in the circumstances, any
person with ordinary intellect and reflexes should have pointed
the
muzzle to a safer direction after it had jammed. This he failed to
achieve and was thus negligent or culpable.

[20] The accused was indeed issued the 9mm by Sergeant Katiso on the
18th March 2002 because accused was competent in handling
firearms
for Lesotho Bank guard duty.

[21] In my view, once the gun did not fire after he had pressed the
trigger, when the gun was pointing upwards the accused ought
to have
exercised special care when he lowered it and ought to have deflected
the gun as he brought it down for inspection. This
did not require
any specialized knowledge about "delayed or hang fire".

7

[22] The accused however lowered the gun without due care, conscious
of the fact that despite having its trigger pressed, the
gun had not
yet fired. The directionin which he brought the gun down was unsafe
because his own colleague - the deceased and other
men were standing
not far from him.

[23] I hold that there is a prima facie case for the accused to
answer upon a charge of culpable homicide only.

My
assessors agree.

S.N PEETE

JUDGE

For Crown
: Ms Khubetsoana and Mr Habasisi

For
Accused: Mr Teele