Kanono v R (CRI/A 43 of 90) [1991] LSCA 35 (8 March 1991)

CRI/A/43/90 IN THE HIGH COURT OF LESOTHO In the Appeal of:- MOEKETSI THABO KANONO Appellant vs R EX J U D G M E NT Delivered by the Honourable Mr. Justice J. L. Kheola on the 8th day of March, 1991 The appellant appeared before the subordinate court for the district of Maseru charged with the offence of assault with intent to do grievous bodily harm. He pleaded guilty to the charge and admitted the summary of the facts of the case as stated by the public prosecutor. The learned Magistrate found that the facts disclosed the offence charged and returned a verdict of guilty as charged. I have no difficulty with that verdict and agree entirely with the learned Magistrate. /2 - 2 - The facts of the case w e re very clear and w e re as follows: The complainant is an old woman of seventy-three years of a g e. The appellant is her grandson. On the 28th May, 1989 t he complainant w as planting aloes at h er place when t he appellant arrived. He appeared to be very angry and suddenly attacked the complainant with his stick. He hit her on the head three t i m e s, once of the ribs and once of the shoulder. On the 28th May, 1989 the complainant was examined by a doctor at Scott H o s p i t a l, M o r i j a. He found three wounds on t he head and sutured them. He also found a wound on the shoulder and on the ribs. He formed t he opinion that the wounds on t he head w e re dangerous to life and that the force used to inflict them w as m o d e r a t e. On being called upon to plead in mitigation of sentence the appellant said:- "This thing happened to me as a surprise. As I am still under care because of a sickness I have of ancestors ( B a l i m o ). I had a blackout, thereafter immediately w e nt to police to report m y s e l f. I got frightened as I am still struggling at home to m a ke ends m e e t. I am still struggling to get a cattle (sic) so that I could be cured. There is nobody who is helping me in my s i c k n e s s; everything is on my shoulders. I ask f or forgiveness before court of law. I am not a traditional doctor. I am still a trainee, I do not know w h at will in t he end happen to m e ." After commenting on t he gravity of the offence the learned magistrate sentenced the appellant to five (5) y e a r s' imprisonment. -3- The appellant is now appealing to this Court against both the conviction and sentence on the ground that the learned Magistrate erred in passing sentence on him when it became clear before then that he had a defence to the offence charged which, if successful, w o u l d, at least, h a ve reduced the offence to one of common a s s a u l t. The learned Magistrate ought to have terminated the proceedings at o n ce and referred the m a t t er to the High Court f or a review and setting aside of the conviction and the nomited of the m a t t er to the subordinate court f or re-trial before a different M a g i s t r a t e. The second ground of appeal is that the wounds w e re m o re consistent with common assault than with assault with intent to do grievous bodily harm. I agree with the first ground of appeal and on that ground alone the appeal must succeed (See S. v. M f e s i, 1978 (4) S. A. 2 8; S. v. Mandlasi, 1987 S. A. ( 4 ); S. v. Van A s, 1989 (3) S. A. 8 8 1 ). In the present case the appellant clearly pleaded guilty and later accepted the facts which undoubtedly disclosed an offence, whether it was the offence charged or common assault, I propose not to express any opinion at this stage. The learned Magistrate duly returned a verdict. In his mitigation of sentence the appellant raised w h at appears to me to be a very genuine defence of a complete blackout apparently due to some mental illness. I agree that the defence was raised at a very late stage in the p r o c e e d i n g s, however, the learned Magistrate w as not entitled to ignore it. He w as dealing with an ordinary Mosotho man w ho w as - - not represented by a legal practitioner. The appellant was not even raising it as a defence as Such, but he was merely saying in passing sentence the learned Magistrate must know that at the time of the commission of the offence he had a blackout or he did not know what he was doing. The learned Magistrate ought to have stopped the proceedings at once and to have sought the assistance of this Court. I earlier said the defence was a genuine one and is supported by the evidence of the Crown. The appellant and his grandmother had not quarreled before this incident and there is no evidence that he had any grudge or any complaint against her. The complainant did not provoke him in any manner before he assaulted her. There is no evidence that the appellant is a violent person. All these things tend to suggest that the appellant's defence is a genuine one but as a layman he did not know that a blackout is a defence and I think it is only fair to give him a chance to prove it in a re - trial before another magistrate. It will be for the trial court to decide whether blackout has been proved or not. For the reasons stated above the appeal is allowed. The conviction and sentence of the court a quo are set aside. The matter is remitted to the Subordinate Court for re - trial before a different magistrate. J . L KHEOLA JUDGE 8th March, 1991. For the Appellant For the Crown - - Mr. Sello Miss Moruthoane.