Matooane v R (CRI/A 97 of 90) [1991] LSCA 149 (29 November 1991)

CRI/A/97/90 IN THE HIGH COURT OF LESOTHO In the matter between: MOITHERI MATOOANE APPELLANT V REX RESPONDENT Before the Honourable Chief Justice Mr. Justice B. P. Cullinan on the 29th day of November, 1991. For the Appellant For the Crown : Mr. Z. Mda : Mr. L. L. Thetsane, Senior Crown Counsel JUDGMENT Cases referred to: (1) Moholisa v R CRI/A/17/87 (Onreported); (2) R v Makhetha & Anor. CRI/T/31/84 (Unreported). The appellant was convicted of housebreaking and theft by the Court of the Senior Resident Magistrate for Mafeteng and was sentenced to 5 years' imprisonment. The female complainant and a fifteen year-old domestic servant awoke at night, to find a burglar in their bedroom, illuminated by a lamp, stealing clothes. He threatened them with a gun. The complainant called to her mother who raised the alarm. The burglar fled pursued by the complainant in the dark. He dropped some stolen clothing, but threatening her again, made good his escape in the dark, One month later the complainant observed the appellant entering a bus in which she was a passenger, wearing a blanket stolen from her home and also a stolen skipper belonging to her husband. She recognized the appellant as the burglar and challenged him. He attempted to escape from the bus, but was prevented by passengers and then handcuffed by a plain-clothes police officer in the bus. Three days later the police and the complainant accompanied the appellant to his mother's home where some 22 items of property stolen from the complainant's home were found and were identified by the complainant in the presence of the appellant. The appellant did not deny the complainant's claim. That evidence was given by the complainant and a police officer. The fifteen year old domestic servant identified the appellant in Court. No identification parade had previously been held. While there was no need for such parade as far as the complainant was concerned, quite clearly the absence thereof rendered the identification by the domestic servant, as the learned Senior Crown Counsel Mr. Thetsane concedes, a courtroom identification, some 21 months after the event and was clearly, in all the circumstances of no probative value whatever. The appellant testified that he had spent the night in question, one month before his arrest, at his mother's home sleeping with his wife. Such aspect was put to the domestic servant, though extremely late in the day, immediately before the Crown closed its case. Technically speaking therefore, the Crown had notice, very short notice, of the appellant's alibi, which was in turn corroborated by his wife. When it came to identification, the learned trial Magistrate's judgment was lacking in proper direction. In this respect the learned Counsel for the appellant Mr. Mda, who represented the appellant in the Court below, refers to the cases of Moholisa v R (1) and R v Makhetha & Anor. (2) to which I would in turn refer the learned trial Magistrate. Quite obviously the complainant's identification was of the "fleeting glance" variety, under the pressure of fear and excitement. There is the /... a s p e ct that the a p p e l l a nt w as s u b s e q u e n t ly r e c o g n i z e d, but that was a m o n th l a t e r. F u r t h e r, it is clear that the s i g ht of the f a m i l i ar b l a n k et and s k i p p er was what a t t r a c t ed the c o m p l a i n a n t, l e a d i ng s u r e ly to an a s s o c i a t i on of i d e a s. T he l e a r n ed trial M a g i s t r a te failed a l t o g e t h er to c o n s i d er these a s p e c ts and in p a r t i c u l ar the p o s s i b i l i ty of h o n e st but m i s t a k en i d e n t i f i c a t i on and I am not s a t i s f i ed that had she done so she w o u ld i n e v i t a b ly h a ve found that the a p p e l l a nt had been i d e n t i f i ed beyond r e a s o n a b le d o u b t. T h e re is h o w e v er the a s p e ct that the a p p e l l a nt was found in recent p o s s e s s i on of 22 s t o l en i t e m s. The c o m p l a i n a nt i d e n t i f i ed them as her f a m i l y 's p r o p e r t y, and so a l so did the d o m e s t ic s e r v a n t, who t e s t i f i ed indeed that she had been a c c u s t o m ed to w a s h i ng the p a r t i c u l ar c l o t h i n g. On the other h a n d, the a p p e l l a nt and his w i fe t e s t i f i ed that the items w e re their p r o p e r t y. M r. Mda s u b m i ts that the c o m p l a i n a nt had no d i f f i c u l ty in i d e n t i f y i ng the p r o p e r t y, as it had been r e l e a s ed to her by the p o l i c e. N o n e t h e l e ss the point is that she first i d e n t i f i ed the p r o p e r ty in the home of the a p p e l l a n t 's m o t h e r. In this r e s p e ct the c o m p l a i n a nt t e s t i f i ed that the a p p e l l a n t, w h i le h a n d c u f f e d, had on the p r e t e n ce of w i s h i ng to u r i n a t e, r un a w ay from his m o t h e r 's h o m e, had f a l l en and had b e en r e c a p t u r ed by a p o l i ce o f f i c e r. T he p a r t i c u l ar p o l i ce o f f i c e r, w ho a p p e a r ed as a w i t n e s s, gave no s u ch e v i d e n ce h o w e v e r, and the a p p e l l a nt d e n i ed the c o m p l a i n a n t 's e v i d e n c e. T he c o m p l a i n a n t 's e v i d e n ce has a ring of t r u th a b o ut i t. It may w e ll be that the p o l i ce o f f i c er did not c o n s i d er the a s p e ct i m p o r t a nt and did not c o v er i t. It m ay be of c o u r se t h a t, as the a p p e l l a nt c l a i m s, the c o m p l a i n a n t 's e v i d e n ce was u n t r u e. But e v en if that was the c a s e, it i n d i c a t es that the P o l i ce T r o o p er did not s e ek to f a l s e ly i n c r i m i n a te the a p p e l l a n t. The P o l i ce T r o o p er h o w e v er t e s t i f i ed that the a p p e l l a nt did not c o n t e st the c o m p l a i n a n t 's claim to the p r o p e r t y. Indeed he m a i n t a i n ed that it w as the a p p e l l a nt h i m s e lf w ho p r o d u c ed the s t o l en c l o t h i ng from a t r u nk and a c a s e, w h i ch the a p p e l l a nt d e n i e d. T he a p p e l l a nt m a i n t a i n ed that w h en he e n t e r ed the b u s, a m a le p a s s e n g er a c c o m p a n i ed by t h r ee l a d i es c l a i m ed the a p p e l l a nt w as w e a r i ng h is b l a n k e t, o ne of the l a d i es a g r e e i ng t h e r e w i t h; the m an a s s a u l t ed him a s s i s t ed by a CID o f f i c e r: h e n ce he had s u b s e q u e n t l y, w h i le h a n d c u f f e d, e s c a p ed from them and a p p r o a c h ed p o l i ce in a n e a r by p o l i ce v a n. T he a p p e l l a nt c l a i m ed that the p e r s on who a s s a u l t ed him in the b u s, a p p a r e n t ly the c o m p l a i n a n t 's h u s b a n d, w as then present in C o u r t. It was put to him that such person "was not in the Country at that t i m e ". The appellant maintained he was telling the truth, but n o n e t h e l e ss failed a l t o g e t h er to indicate in Court the person who had claimed the blanket as h i s. A g a i n, he m a i n t a i n ed that the male bus passenger made reference only to the blanket he w o r e. He never admitted that a n y o n e, much less the c o m p l a i n a n t, had laid claim to the " s k i p p e r" w h i ch he wore at the time. In answer to the q u e s t i o n, "Did the man and P. W.1 (the c o m p l a i n a n t) refer to the blanket o n l y ? ", he a n s w e r e d, " Y e s ", Therein he admitted that the complainant was on the bus and had laid claim at least to the blanket he w o r e, specifically denying thereafter that she also laid claim to the s k i p p e r, m a i n t a i n i ng that she was lying. It was put to him that she had pointed out the skipper in C o u r t, which he a d m i t t e d. He also conceded that it had not been put by the d e f e n ce to the complainant that no reference was made in the bus to the skipper which he w o r e. Further, he s u b s e q u e n t ly conceded that the police had taken from him "the skipper I was w e a r i n g ". I cannot imagine why the p o l i ce would take such skipper, unless it was the case that the c o m p l a i n a nt had identified the skipper as her h u s b a n d 's p r o p e r t y. The appellant was clearly not telling the truth, therefore, and his evidence on the point can only be regarded as an effort on his p a rt to a v o id the d o u b le c o i n c i d e n ce of w e a r i ng a b l a n k et and a s k i p p er s i m i l ar to that o w n ed by the c o m p l a i n a n t 's h u s b a n d. T he l e a r n ed trial M a g i s t r a te r e j e c t ed the e v i d e n ce of the a p p e l l a nt and his w i f e. T h e re is no doubt that she p l a c ed s o me r e l i a n ce on d e m e a n o u r, w h i ch as has b e en said so o f t e n, is the l e a st r e l i a b le of f a c t o r s. T he l e a r n ed t r i al m a g i s t r a te o b s e r v ed h o w e v er that the a p p e l l a n t 's w i fe "did not s e em to k n ow all the p r o p e r ty w h i ch she a l l e g ed was h e r s ", w h i ch is b o r ne out by the fact that the w i fe c l a i m ed that i n t er a l ia "four d r e s s e s" w e re t a k en by the p o l i c e, s u b s e q u e n t ly c o n c e d i ng that f o ur s k i r ts had b e en t a k e n. T he e v i d e n ce for the d e f e n ce w as r e j e c t ed on the b a s is of d i s b e l i ef as s u c h. T h at is not the p r o p er test of c o u r s e. In v i ew of the u n s a t i s f a c t o ry e v i d e n ce of i d e n t i f i c a t i on the a p p e l l a n t 's a l i bi c o u ld r e a s o n a b ly be t r u e, but in v i ew of the p o i n ts I h a ve d e t a i l ed a b o v e, the a p p e l l a n t 's c l a im to the p r o p e r ty c a n n ot r e a s o n a b ly be t r u e, and I am s a t i s f i ed that had the learned t r i al M a g i s t r a te c o r r e c t ly d i r e c t ed h e r s e lf she w o u ld h a ve so f o u n d. T wo i n f e r e n c es f l ow from the a p p e l l a n t 's p o s s e s s i on of the s t o l en p r o p e r t y. As his a l i bi c o u ld be r e a s o n a b ly t r u e, the i n f e r e n ce of h o u s e b r e a k i ng m u st be d i s c o u n t e d. In all the c i r c u m s t a n c e s, the only r e a s o n a b le i n f e r e n ce is that the a p p e l l a nt r e c e i v ed the p r o p e r t y, k n o w i ng it to be s t o l e n. T he appeal a g a i n st c o n v i c t i on is allowed t h e r e f o r e. The c o n v i c t i on in the Court below is set aside and there is s u b s t i t u t ed t h e r e f or a c o n v i c t i on of r e c e i v i ng s t o l en g o o ds k n o w i ng them to h a ve b e en s t o l e n. As to s e n t e n c e, the a p p e l l a nt has been in custody s i n ce his arrest in D e c e m b e r, 1 9 8 8. His t r i a l, i n v o l v i ng five w i t n e s s e s, h a v i ng c o m m e n c ed in M a r ch 1 9 8 9, took one y e ar and five m o n t hs to c o m p l e t e, that i s, after some 35 a d j o u r n m e n t s, in r e s p e ct of w h i ch no r e a s o ns w h a t e v er are r e c o r d ed for g r a n t i ng such a d j o u r n m e n t s. In this respect I w o u ld refer the learned trial M a g i s t r a te to Judicial C i r c u l ar No.1 of 1 9 8 9. I consider that the a p p e l l a n t, a first o f f e n d e r, has m o re t h an paid his debt to s o c i e t y. In all the c i r c u m s t a n c es t h e r e f o re the a p p e al a g a i n st sentence is also a l l o w e d. The s e n t e n ce in the Court below is set a s i de and there is s u b s t i t u t ed t h e r e f or a s e n t e n ce of one y e a r 's i m p r i s o n m e n t, to be served with effect from 17th A u g u s t, 1990 the date of s e n t e n ce in the Court b e l o w. /. . . Delivered at Maseru This 29th Day of November, 1991. B. P. CULLINAN CHIEF JUSTICE