HIGH COURT OF LESOTHO
matter of :
by the Honourable Acting Chief Justice Mr.
J.L. Kheola on the 3rd day of November, 1986.
accused is charged with murder, it being alleged that on the 6th day
of December, 1984 and at or near Bela-Bela in the district
he unlawfully and intentionally killed 'Mamokete Qobqse. The accused
pleaded guilty to the charge but his counsel, Mr.
the court that according to his instructions the proper plea should
be that of not guilty. A plea of not guilty
the defence admitted the entire preparatory examination record as
evidence before this Court, Miss Nku, for the Crown decided
Court should hear the evidence of Dr. Mohapeloa. His evidence is
summarised in his report which reads as follows:
REX vs RAMASHAMOLE QOBOSE
X hereby testify that I examinsed the accused, Ramashamole Qobose,
and I have scrutinized all documents relevant to his case. In
addition I interviewed the grandparents who brought up the accused.
I first examined the accused on March 1st 1985 and my final report is
based on clinical findings covering the period from that
22nd October 1986 when I last examined the accused at Mohlomi
At the time of my final examination the accused was in a normal state
of both mental and physical health. It transpired that the
had suffered from epileptic fits for several years, but he has not
had any fits nor has he exhibited abnormal behaviour
detention at the Central Prison, with regular administration of an
Bearing in mind my report dated 24th June, 1985 exhibit "A"
of the preliminary Examination Record -I must revise the
which I expressed on the personality of the accused. I do so on the
basis of further observation of the accused and deeper
his early psycho-social development.
As already stated, Ramashamole suffers from epilepsy. The aberrations
of personality which he showed in the past are attributable
I am satisfied that the accused is fit to stand trial; and that he
was in a state of diminished responsibility due to epilepsy
time of the alleged offence.
It is now my opinion that Ramashamole will probably load a normal
life provided that he continues to receive proper care and
24th October, 1986.
LENNOX M. MOHAPELOA, M.B. CH.B. (Natal) D.P.M (England) F. PSYCH
DIRECTOR OF MENTAL HEALTH SERVICES."
of the mind of the accused at the time of the alleged offence becomes
relevant only after the Crown has proved beyond
a reasonable doubt
that the accused committed the alleged act of killing the deceased.
evidence was to the effect that on the 6th December, 1984 the accused
and the deceased were seen together going about
in the village. It
was in the afternoon. The deceased was a young child of two years of
age. At dusk it was discovered that the
deceased was not at her home
and a search for her was launched. The accused was asked about the
deceased but his answer was that
he did not know where she was. Later
that evening the dead body of the deceased was found in a kraal far
from where she had been
seen in the company of the accused. There
were scratches around her neck which clearly indicated that she had
to medical evidence death was due to lack of blood to the brain and
lack of air to the lungs. Both conditions were due
applied to the neck. There were scratches, which could have been
caused by nails, on the left side of the neck and
bruise going from
one ear to the other on frontal part of the neck indicating firm
pressure over trachea.
evidence of one of the Crown witnesses at the preparatory
examination, one Sele Qobose (P.W.5) was that on the following day
when the accused was being escorted by villagers to the police
station, he had the opportunity of asking the accused what he had
done to the deceased. The accused said that "he killed deceased
and further he killed mine, by the name of Tsokolo. Accused
frightened, accused is normal, but sometime he becomes somehow."
I have undescored are very important in the case because the Crown is
submitting that the accused made a confession. They
important because they tend to show the state of mind of the accused
at the time he uttered them.
228 (1) of the Criminal Procedure and Evidence Act 1981 provides as
"Any confession of the commission of any offence shall, if such
confession is proved by competent evidence to have been made
person accused of such offence (whether before or after his
apprehension and whether on a judicial examination or after
commitment or whether reduced into writing or not), be admissible in
evidence. against such person provided the confession is proved
have been freely and voluntarily made by such person in his sound and
sober senses and without having been unduly influenced
question which immediately arises is whether the accused can be said
to have been in his sound and sober senses when he said
he killed the
deceased. Although the accused was not legally insane at the time he
made the admission or confession, there is abundant
evidence that he
was in a state of diminished responsibility. He was being escorted by
a group of villagers and was frightened.
Even the evidence of Sele
Qobose was that the accused sometimes behaves in an unusual manner. I
have considered the matter and
have come to the conclusion that it
cannot be said that the accused was in his sound and sober senses
when he made the incriminatory
statement. It has not been proved that
he knew what he was saying.
evidence of Sele Qobose was unsatisfactory in the sense that it
showed some bias against the accused. He said that he received
that the deceased had been seen in the company of the accused at
dusk. There is no such evidence that accused and deceased
together at dusk; the evidence before the Court is that they were
seen together during the afternoon and that the dead
body was found
at dusk far from where they were seen together. It seems to me that
anything could have happened during the interval.
come to the conclusion that the evidence against the accused is so
flimsy and unsatisfactory that it cannot be said that
the Crown has
proved beyond a reasonable doubt that the accused killed the
accused is found not guilty and is discharged. My assessors agree.
- Miss Nku
Defence - Mr. Rakuoane.
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