R v Chaole (CRI/T 23 of 96) [1998] LSCA 51 (20 May 1998)

1 CRI\T\23\96 IN T HE HIGH C O U RT OF L E S O T HO In the matter of: R EX vs SECHABA CHAOLE JUDGMENT Delivered by the Hon. Mr Justice M L Lehohla on the 20th day of March. 1998 In this case the accused stands charged with the murder of Ferete Lenka, in that on or about 30th January, 1994 and at or near Ha Fochane in the district of Maseru, he did unlawfully and intentionally kill the said Ferete Lenka. He pleaded not guilty to this charge. The depositions of P W1 Rashaleng Lenka, P W6 Trooper Ntee, P W7 'Maseipati Chaole, P W8 Sgt Rankuoatsana including the medical report were admitted. The admissions made by Mr Mohau on behalf of the accused were accepted by the prosecution and all these were read into the recording machine and made part of proceedings in this matter. Then the Crown called oral evidence of P W2 Thabang M a h a m o, P W3 Limo Chaole, P W4 Tlokotsi Chaole. The Crown dispensed with the evidence of the deceased's wife P W5 'Mapalesa Lenka. Otherwise those of the witnesses w ho gave oral evidence were cross-examined. It was after proceedings, up to this stage, had been concluded that at the close of the Crown case Mr Mohau for the accused applied for the discharge of the accused. The application for the discharge is based on the fact that there is no prima facie case for the accused to answer. The position in law is that at this stage of the proceeding the Court looks into the evidence and see if there is prima facie evidence. It does not concern itself with the final assessment of the credibility of the witnesses. But at the same time if the sort of evidence that has been led is such that obviously to call the accused into the witness box would amount to asking him to build a case for the Crown because otherwise there is no prima facie case, that can't be allowed if the Court has properly advised itself on the matter before it depending on the nature and reliability of the evidence heard. So all that the Crown need do at this stage is to show that there is prima facie case for the accused to answer There is also authority by Rooney J in support of the view that if the Crown evidence is so shattered and so contradictory as not to amount to any evidence at all then it would be wrong in that case or in either of those possibilities also to ask the accused to give meaning to it. N ow looking at the evidence just in brief, just the significant parts of the evidence that has been led we were told by P W2 Thabang that he was the first m an virtually to arrive at the scene, but the old m an the blindman w ho was the last witness i.e. P W4 Tlokotsi tells us that he is the one w ho arrived there first and he pointed at what he did when he arrived there, and what this old man said was in line with the sort of case put to the Crown witnesses in cross-examination on behalf of the accused. We had heard through cross-examination that the first m an to have arrived at the place was P W4 Tlokotsi Chaole, w ho even lit the light, but those had been denied earlier by P W2 Thabang M a h a m o. But P W4 indicated in line with that cross-examination that he is the one w ho arrived at the scene first. So on that score alone it is found that the crown witnesses are not ad i d em as to what was happening and what was happening has been supplied through cross- examination. O ne outstanding feature which was put to C r o wn witnesses was that the accused was injured on the arm by the m an with w h om he had been having a set - to in darkness in the house. This m an turned out to be the deceased. Given this particular aspect of the matter it becomes difficult to counter the accused's proposition that he fought in self-defence against a stranger w ho attacked him in his o wn house without any palpable, let alone wholesome, reason anyway for being at the accused's abode at midnight in the accused's absence; given also that there is evidence by crown witnesses that the accused had previously sought their intervention as the deceased had been carrying on and engaging in an illicit love affair with the accused's wife. Given further that without being prompted the last witness for the crown volunteered this piece of evidence that goes to the heart of the matter that the accused showed him at the earliest possible opportunity that the deceased had injured him with a stick on the arm it seemed to me that the C r o wn case was at this stage and on this account irretrievably shattered. To ask the accused to answer would amount to asking him to fill this gaping hollow in the Crown's case. There are also several other factors in which the crown evidence falls short of what could ordinarily sustain conviction. The accused's story was put to P W2 and that story as put to P W2 is to the effect that when the accused came to his house he knocked at his door. The wife inquired w ho it was. The accused identified himself. The accused asked for the rope for the horse so that he could tether the horse. The wife indicated that there was no rope in the house but rather it was where the horse is usually tethered. There and then the wife devised a means of sneaking out of the house on the pretext that she was going to show him where the rope was; and when the accused took off the saddle from his horse and entered his own unlit house, a missile went past him. While thus perplexed what could be the source of all this, his perplexity was further compounded when there and then the accused was confronted by an attack from the direction where this missile came from. He stumbled over something and that object happened to be a stick which he picked up and applied in the direction of where this missile had come from. He managed to grapple with the source of his torment, in the process there was a gun shot followed by a click. There was shortly afterwards another gun shot followed by a click It is for this that I think P W2 probably is or appears to be telling the truth in saying that he heard a gun report from his home hence his coming to the scene. The problem is or the question is w ho w as the owner or w ho w as wielding this gun. Surely you don't expect the accused to supply all that information, that's the information that ought to have been supplied by the C r o wn in the first place. N ow there isn't the gun here, no trace of anything of the sort. So for the forgoing and other reasons that could be gathered from the facts of this case it would be asking too much to require the accused to be put to his defence. Our law is very clear on that, if there is prima facie case even if there is a strong suspicion that the accused has committed an offence the strong suspicion is not enough. In the circumstances, therefore, one of the facts which surfaced in this case is that the deceased w as in love with the accused's wife, and if he caught him then the law would support the view that on grounds of extreme provocation, the accused could at worst be found guilty of culpable homicide. But in this case I am satisfied that the case advanced that is of self-defence entitled the accused to his acquittal and the Court so finds. Thus he is acquitted and discharged. JUDGE 20th March, 1998 For Crown : Mr Semoko For Defence : Mr Mohau