CASE NO.
C OF A (CRI) 4/2004

IN THE
LESOTHO COURT OF APPEAL

In the
matter between:-

THABO
MAHASELE APPELLANT

and

THE
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

15 and 20
April 2005

CORAM:
CROSSKOPF JA

SMALBERGER JA

MELIJNSKY JA

SUMMARY

Criminal
law - murder - satisfactory evidence that appellant deliberately shot
and killed his wife- - appellant's evidence clearly
false. Sentence ~
no reduction of sentence justified on grounds that appellant's young
child was deprived of both parents. Appeal
dismissed.

2

JUDGMENT

MELUNSKY
JA

[1] The
appellant's wife, Mankokoto Mahasele ("the deceased"), died
on 5 August 2000 as a result of two gunshot wounds
to the upper
thorax. causing a massive bilateral haemopneumo-thorax. The appellant
was charged with her murder. He appeared in
the High Court before
Hlajoane J and assessors. He pleaded not guilty but was convicted and
sentenced to ten years imprisonment.
He appealed to this Court
against his conviction only but we nevertheless permitted his counsel
to address us on sentence in addition
to the merits.

[2] At
the time of the deceased's death the appellant was employed as a
driver in Qacha's Nek and the deceased worked as a secretary
at the
Hermitage High School in the same district. They were married to each
other in 1997 and lived together until the end of
July 2000 when the
deceased left the common home. She look the parties' baby with her
and went to live in a house that was situated
within the school
perimeter. During the afternoon of Saturday 5 August the deceased
visited a friend, Masamuel Kori (PW2), whose
house was also in the
school complex. The deceased's brother, Teboho Tolofi (PW1), was
present and so were some children, the appellant
arrived at PW2's
house while the people present were viewing a video in the lounge He
asked the deceased to accompany him outside
so that he could talk

3

to her.
She agreed to this and went out of the house with him. All of the
aforegoing is common cause, save that the appellant claimed
that it
was the deceased who suggested that they should go outside to talk.

[3] It is
also not in dispute that the deceased received the fatal gunshot
wounds while she and the appellant were outside together.
It is
clear, too, that she died almost immediately. What is in dispute is
whether the appellant shot her intentionally, as the
Crown alleged,
or whether, as the appellant said in evidence, she was shot while she
and the appellant struggled for possession
of a pistol which she
suddenly produced. The trial court rejected the appellant's version.
It held that the appellant arrived at
PW2's house armed with a
pistol; that he had the "clear intention" to kill the
deceased; that he killed her deliberately;
and that in consequence he
was guilty of murder. These findings are attacked on appeal by the
appellant's counsel.

[4|
Before considering the submissions of the appellant's counsel, it is
appropriate to review the more important aspects of the
evidence
First, according to the report of the post-mortem examination on the
deceased' body, the entry point of each gunshot was
immediately above
the clavicular bones, one on the right and the other in an almost
identical position on the left. Both exit wounds
were on the
deceased's back. Second, it is significant that the appellant was
found in his home later that afternoon. He had sustained
two open
wounds, one below the right jaw and the other above the left ear. He
was taken to the Machabeng Hospital tor treatment.
He obviously
recovered but it is unfortunate that no medical evidence was produced
of the nature and

4

extent of
his injuries. What is important, however, is that a 9 mm cartridge
case and a fired bullet were found on the floor in
the appellant's
home. There was also blood on the floor of the sitting room. In the
vicinity of the deceased's body, the police
found one, or possibly
two 9mm cartridge cases and a fired bullet. It is not disputed that
all of the aforesaid cartridge cases
and fired bullets were fired
from the same firearm, a 9mm Parabellum pistol. This much appears
from Senior Inspector Mothibeli's
sworn statement, which was handed
in by consent. The Parabellum pistol was found on a table in the
appellant's home on the same
day.

[5] I
turn now to deal with the evidence of these witnesses who gave viva
voce testimony. Only one of the witnesses called by the
Crown - PW1 -
testified that he saw the appellant firing a pistol at the deceased.
He told the court a quo that after the deceased
and the appellant had
been outside PW2's house for approximately 30 minutes he heard what
he described as a "gun shot".
He stood up and through the
glass part of the front door he was able to see the deceased. She was
moving backwards and was staggering.
He then saw the appellant-

"in front of (the deceased) holding a gun and ... heard the
second gun report. "

In his
terror PW1 ran out of the back door of the house. That, in essence,
was the material part of his evidence.

5

[6] One
of the main issues that arose in a lengthy, and somewhat tedious,
cross-examination of PW1 concerned the position, size
and type of
glass that was in the front door. The glass section, according to the
witness was in the middle and covered the whole
length of the door.
The glass was transparent and not tinted. Although there was no
evidence concerning the width of the glass
portion, both PW1 and PW2
were adamant that one could clearly see through it. Obviously the
range of the observer's vision would
depend on his position relative
to the door. PW2, it may be noted, heard shots but did not look
through the glass and she was unable
to say what had occurred outside
the house.

[7] The
appellant testified that he had agreed to meet his wife on the
Saturday in question; that after finding her at PW2's house
he
accompanied her outside at her request; that he tried to persuade her
to return to him but that she refused; that as he was
in the process
of leaving, the deceased caught hold of him and when he turned around
he saw that she was holding a firearm in her
hand. The appellant went
on to say that he grabbed hold of her and that they struggled tor
possession of the firearm. During the
course of the struggle, the
firearm discharged once and they both tell down. The appellant
claimed that alter he stood up he ascertained
that he was bleeding
from an injury to his chin. He picked up the pistol which had fallen
to the ground and went to his home where
he collapsed. He regained
consciousness in hospital.

6

[8] On
appeal counsel for the appellant argued that his client's guilt had
not been proved beyond reasonable doubt. He relied on
the well-known
principles of law which entitle an accused person to an acquittal if
his evidence can reasonably possibly be true.
In the view I take of
the matter, however, it is quite, clear that the Crown successfully
established beyond reasonable doubt that
the appellant was guilty and
that his evidence was clearly false. I say this for the following
reasons:-

1. The
   trial court found PW1 to be a credible witness. On the appellant's
   behalf it was submitted that PW1 's evidence had to be
   approached
   with care as he was the deceased's brother. We were not, however,
   referred to any misdirection on the pan of the Court
   a quo. The fact
   that PW1 was closely related to the deceased does not mean that his
   evidence was not credible or reliable. On
   the contrary it is clear
   from the record that his account of the events was convincing and
   coherent. PW2's evidence, while not
   expressly commented upon by the
   court a quo was obviously not rejected. She corroborated PW1 to the
   extent that her description
   of the from door accorded with PWl's
   account. She also confirmed that it was the appellant who had asked
   the deceased to accompany
   him outside.

   
   

2. The
   appellant's evidence was riddled with falsehoods and gross
   improbabilities. Thus-

   
   

(i) His testimony that only one shot was fired outside the house is
at variance with the medical evidence and the evidence of PWI.

7

(ii) His assertion that he was injured by the shot that was fired
outside the house is pure invention. He obviously fired a shot
at
himself in his house. This is clear from the fact that a cartridge
and bullet were found there. This he was quite unable to
explain.

(iii) There is no doubt that the deceased did not ask the appellant
to accompany her outside. There was no reason for her to have
done
so. The appellant, on the other hand, wished to persuade her to
return to him: that is why he asked her to talk to him outside.

(iv) There was no reason for the deceased to shoot the appellant. She
was living apart from him in a house that had been allocated
to her
in the school complex and obviously had no intention of returning to
him. Nor is there anything to show that she intended
to harm him
physically or that she was capable of doing so. The appellant,
however, was clearly annoyed and disturbed at the fact
that she had
left the common home. His anger had obviously reached the point at
which he was quite prepared to injure her physically
if she refused
to return.

[9] When
weighing the merits of the Crown ease against the demerits of the
appellant's there is no doubt at all that the appellant
intentionally
shot and killed his wife. He was, therefore, correctly convicted of
murder. The trial court's findings, in my view,
were fully justified
on the evidence, save that it may not be that he went to PW2's house
with the intention of killing his wife.
It is more likely that he
went there with the intention of shooting and killing her only if she
refused to return to him.

8

[10] On
the question of sentence the appellant's counsel conceded that the
sentence was reasonable having regard to the gravity
of the crime but
he submitted that the term of imprisonment should be substantially
reduced because the minor child of the deceased
and the appellant,
who was now almost six years old, had neither a mother nor a father
to care for him. In my view, the sentence,
if anything, was far too
lenient. The appellant behaved in a cruel and vindictive manner
towards a defenceless woman who had no
chance to avoid his
aggression. It was, moreover, a calculated assault for he came to
PW2's house armed with a pistol and with
the intention of shooting
her if she refused to return to him. He fired two shots towards her,
both of which struck her on a vulnerable
part of her body. The fact
that the minor child is now without both parents at an impressionable
stage in his life is most unfortunate,
but it is not a factor which,
in the circumstances of this case, warrants a reduction in sentence.
The appellant must consider
himself extremely fortunate that the
sentence was not substantially more severe.

[11]
again draw attention to the fact that medical evidence relating to
the appellant's injuries was not placed before the trial
court.
Fortunately the omission to do so in this matter does not affect the
outcome. In other eases, however, the absence of medical
evidence
concerning injuries sustained by the alleged assailant could
seriously impact on the court's decision and thus result
in a failure
of justice.

9

[12] For
the reasons given, the appeal against both the conviction and
sentence must fail. It is therefore ordered that the appeal
be
dismissed.

L.S.
MELUNSKY

JUDGE OF
APPEAL

I agree

F.H.
GROSSKOPF

JUDGE OF
APPEAL

I agree

J.W.
SMALBERGER

JUDGE OF
APPEAL

For
Appellant : Mr Maieane

For
Respondent : Mr Tlali