R v Chondile (CRI/T 12 of 2002) [2014] LSHC 69 (28 May 2014)

IN THE HIGH COURT OF LESOTHO CRI/T/12/2002 In the Matter Between:- REX And TSOTLEHO CHONDILE ACCUSED Coram Date of hearing Date of judgment : : : JUDGMENT Hon. NJ Majara J 29th September 2004 - 10th April 2014 28th May 2014 Summary Criminal law – Murder – Self-defence – whether essential requirements established – onus on prosecution to negative self- defence even where accused person does not rely on it if evidence suggests its existence as a reasonable possibility – prosecution failing to discharge onus – accused found not guilty and discharged. ANNOTATIONS BOOKS 1. Burchell and Milton; Principles of Criminal Law (2005) STATUTES 1. Criminal Procedure and Evidence Act No. 9 of 1981 2. Lesotho Penal Code Act No. 6 of 2010 CASES 1. R v Attwood 1946 AD 331 2. S v Ntuli 1975 (3) SA 429 3. S v Motleleni 1979 (1) SA 403 4. Ex Parte Ministry of Justice: In re S v Van Wyk 1967 (1) SA 5. Palmer v R (1971) 55 Cr App R223 PC 242 6. Serame Linake v Rex C of A CRI No. 10/08 7. Union Government (Ministry of Railways & Harbours) v Burr 1994 AD 273 8. S v Tatedi 2007 2 BLR 9. Bobe v The State 1 BLR 254 [1] The accused appeared before me on a charge of murder it being alleged that on the 17th of October 1999 at Taung Ha Pii in the district of Mohale’s Hoek, he unlawfully and intentionally killed one Seabata Senki Khorola (the deceased). He pleaded not guilty to the charge. [2] Before I get into the case, I find it proper for me to first state unequivocally that this case is one of those with a very sad and shameful history in that it was fraught with unconscionable delays since the second day of its hearing. It has taken this Court a period of about ten (10) years before it could reach its finality. [3] The trial first commenced on the 29th September 2004 during which time notable strides were made in its progress there having been certain formal admissions of evidence that were made in accordance with the provisions of the Criminal Procedure and Evidence Act. 1 [4] However, after the Crown had called its two witnesses it sought for a postponement to enable it to secure and call more witnesses to come and testify. Alas, this was to be the start of several such postponements which were punctuated with lengthy periods of inaction towards the finalisation of its prosecution. After many failed attempts on my part to get it to proceed, it eventually did about ten (10) years later as already alluded to above. Unsurprisingly, the accused had by then had a change of legal representation. I therefore feel constrained to express by sincerest regrets over these shameful circumstances. Needless to say, this case is one of those that epitomise the clichéd adage “justice delayed is justice denied.” [5] Coming back to the facts of the case, the evidence consisted admissions by the defence namely the post-mortem report and four crown witnesses’ statements which were all read into the record and became a part thereof. In terms of the admitted post- mortem report, 1 Section 273 of Act No. 9 of 1981 the deceased died as a result of a gun shot wound he sustained during the incident day. [6] The first three admitted statements were those of the police officers who were investigating this case namely No. 8260 Tpr Lesoli, No. 6385 SGT Moleli, and D/Tpr Moseli respectively. The fourth one was that of Mr. M. D Mothibeli a firearm examiner. [7] The first witness that was called was one ‘Matobatsi Mokete (PW 1), an eye witness to the events that led to the deceased’s death. According to her testimony, she was from home to work and had boarded the taxi of the accused person in this matter. Along the way just before they got to a place called Phahameng in the district of Mafeteng, they came upon a number of taxis which were parked alongside the road. Some of the taxi operators tried to stop their taxi but the accused who was the driver thereof did not stop but proceeded onwards in the direction of Mohale’shoek. [8] The witness further testified that after they had passed the stationery taxis, the conductor of their taxi remarked to the accused that, those people were coming behind them. When the witness looked back she saw about four (4) taxis approaching from behind following one another. They came at a high speed in apparent pursuit of their taxi and eventually caught up with them. They then drove on each side of the accused’s taxi and it was when they approached a place called Siloe that she heard a gun shot report and she decided to hide under the seat because she was scared. She noticed that she was covered with broken glasses. Their taxi then came to a stop. [9] PW1 further told the Court that when she looked up she saw the accused alighting and it is at that time that she also noticed a person lying on the road next to their taxi. She later saw a hole on the windscreen of the taxi belonging to the accused which had not been there at the time she boarded the taxi. After that the accused re- boarded the taxi and proceeded to the Mohale’s Hoek police station. [10] PW2 Mpho Molato testified that that at the time of the incident he was the conductor of a certain taxi that was operating along the Mafeteng route. On that particular day, he was with one Kabelo Phori who was the driver of the taxi and they were travelling from the direction of Mafeteng towards Mohale’s Hoek when they saw two taxis that they thought had collided. However, when they got closer, they realised that there was a fight going on. [11] The witness added that they saw the accused alighting from his taxi holding a firearm. He shot once in the air and the second shot hit the deceased who was sitting in his taxi. He told the Court that none of the Mafeteng taxi owners were armed. [12] As I have already stated above, attempts by the Crown to call more witnesses came to nought leaving it with no choice but to eventually close its case. [13] The defence led only one witness, the accused person. He testified that on that fateful day he was on duty driving his own taxi. At the material time he was with his conductor and two people who were passengers. They were travelling from Mafeteng to Mohale’shoek. He added that when they reached a place called Seitlheko near Bereng High School, they found some of the Mafeteng taxis blocking the road. The taxi operators tried to stop him but he refused to stop as he knew that they did not want them (the Mohale’s Hoek taxi operators) to operate along that route. [14] It was his further evidence that there was a long standing dispute between the Mohale’s Hoek taxis and Mafeteng taxis over that route. He added that as they drove down Ha Seitlheko, his conductor informed him that those people who had blocked the way were following them. When he checked through his rear view mirror, he saw the same taxis coming from behind at a high speed and he also pressed on his accelerator in an attempt to escape. [15] The accused added that when they reached a place called Taung in the district of Mohale’s Hoek, the said taxis managed to catch up with him and as they got closer to his taxi, they tried to box him in and blocked the way. The accused tried to apply his brakes and it was at this point that he heard a gun report whereupon the front windscreen of his taxi got hit by a bullet. During that time he noticed that his passengers were hiding under the seats. He then opened the door to escape and he took his firearm to defend himself. [16] It was his further testimony that he shot randomly to scare the other taxi drivers away so that he could escape and he then noticed that one person had fallen down. He then got back on his taxi and managed to get way. He proceeded to the Mohale’s Hoek police station and reported the incident. He did not dispute the suggestion during cross-examination that the person that he saw lying down could have been hit by one of the bullets discharged from his firearm. It was the accused case that he acted in self-defence under the circumstances. The Law on Self-Defence [17] It is a well settled principle of law that where an accused person relies on self-defence there are certain requirements that he needs to establish in order to succeed. These have been laid down as follows; if it appears as a reasonable possibility on the evidence that: (1) The accused had been unlawfully attacked and had reasonable grounds for thinking he was in danger of death or serious injury at the hands of his attacker(s); (2) The means he used in defending himself were not excessive in relation to the danger; and (3) The means he used in defending himself were the only or least dangerous means whereby he could have avoided the danger. 2 [18] It is also well established that where the accused relies on self- defence, the state bears the onus to negative such defence beyond 2 R v Attwood 1946 AD 331 reasonable doubt.3 See also Burchell and Milton Principles of Criminal Law (2005) 231. [19] In casu, the accused relies on self-defence and this is challenged by the prosecution. In this connection it was the contention by Ms H Motinyane Counsel for the Crown in her submissions that there was no attack on the accused on that day and therefore, it was not necessary for him to have shot because nobody was posing any danger towards him. [20] It was her submission that none of the taxi operators posed any danger to the accused as they were not armed. She urged the Court not to believe the accused’s version that he was attacked because if this was true, the taxi operators could have taken the opportunity to attack him while he was in the car and they were many in number. Counsel for the Crown added that even if it could be accepted that the accused was attacked, the means he used to ward off the attack was excessive as the taxi owners were only holding sticks. [21] In turn, Mr. CJ Lephuthing for the defence argued that the Crown has failed to prove its case beyond reasonable doubt and for that reason the accused’ version must be believed. It was his contention that looking at the totality of the evidence, the accused’s circumstances justified the defence he raised because firstly, he was unlawfully attacked and he had a reasonable apprehension to think that he was in serious danger. Secondly, the means he used in the 3 S v Ntuli 1975 ( ) SA 429 circumstances was justified and were the only means or the least dangerous means whereby he could have averted the danger. [22] In support thereof Mr. Lephuthing referred to the evidence of PW1 whose testimony more or less corroborated that of the accused up to the point that as the other taxis caught up with that of the accused, they boxed it in and tried to force it off the road and it is at that time that she heard a gun shot. [23] He added that of critical importance is the fact that PW1’s evidence confirms that the accused was indeed attacked by the taxi operators and that this shows that he had no other means to escape but to act the way he did. Counsel for the defence submitted further that the evidence of PW1 to the effect that she heard a gun report during the commotion leads to the assumption that the shooting came from the attackers. It was his contention that the evidence shows that both the accused and the attackers had guns and therefore the means used by the accused was proportionate to the attack. [24] It is a general principle of law that when analysing the evidence that has been placed before it, the Court has to apply the objective test in order to determine whether the accused acted lawfully under the circumstances. Thus, in S v Motleleni 4 the Court made the following remarks; “The question whether an accused, who relied on self- defence, has acted lawfully must be judged by objective standards. In applying these standards, it must decide 4 1979 (1) SA 403 at 406 C what a fictitious reasonable man, in the position of the accused and in the light of all the circumstances would have done.” [25] The test assists the Court in its assessment of the defence in the context of a myriad of factors including but not limited to, the nature of the attack, the interest threatened, the relationship between the parties, their respective age, sex, size and strength, location of the incident, the nature or the means used in defence, the result of the defence etc. See EX Parte Ministry of Justice: In re S v Van Wyk5 [26] Applying the above guidelines to the facts in casu, it is common cause as revealed by the evidence that at the time of the incident, there was an ongoing war between taxi operators over the Mohale’s Hoek-Mafeteng route. Against this backdrop, the evidence has also established that on the day in question the accused was waylaid by several taxi operators who attempted to stop him and upon his refusal to do so they immediately gave chase, caught up with his taxi and boxed him in. The accused was forced to stop his taxi. [27] There is further evidence that the taxi operators had alighted and were carrying sticks. There was also a report of a gunshot although PW1’s evidence is to the effect that she did not see where same emanated from save for her to testify that she saw broken glasses all over her where she had hidden herself in the taxi. She also told the Court that she did not see anyone carrying a firearm but however later 5 1967 (1) SA 488 noticed a hole on the windscreen of the accused’s taxi which had not been there before the incident occurred. [28] While PW2 initially disputed that there was an ongoing taxi war between the Mohale’s Hoek and Mafeteng taxi operators, he eventually conceded this under cross-examination. He also disputed that the accused had been waylaid and chased by the Mafeteng taxi operators and that they were armed with sticks but eventually admitted these facts as well. [29] In my opinion, when one looks at the evidence intoto, it has established beyond doubt that the accused was confronted with a dangerous situation to which he had to act quickly. This is because the attackers were clearly in an angry and confrontational mood as shown by their actions of having waylaid him, and when he avoided a confrontation with them, pursuing him and boxing him in trying to force him off the road. [30] It is also my opinion that this was a serious attack that posed a danger not only to the accused person but to his passengers as well. It is also important to observe that the accused’s claim that he was attacked first was supported by PW1 in many material respects. In her own words, she described the situation as follows in relevant parts of her cross-examination; ‘… at the time, I heard the gunshot, I saw broken glasses on me and then tried to hide by bending. At this time we had stopped. The other taxis had also stopped and some of the owners had alighted. They were holding sticks so I hid myself. I did not count them but they were many’. She also replied as follows to some of the questions that were posed to her during cross-examination; DC- the picture that I get here is that your taxi was being forced/ sandwiched off the road. PW1 - that is so. DC - and dangerously so? PW1 - that is so. [31] Although Counsel for the Crown argued strenuously that the alleged gunshot which resulted in the breaking of the windscreen was from the accused, this was not established by the evidence. Further, PW1 disputed this suggestion under cross examination and told the Court that she was sitting next to the accused (driver) and during the shooting, the accused was still driving and had not stopped the vehicle. [32] It is trite that the onus lies on the Crown throughout to prove its case beyond any reasonable doubt. In casu, it is my considered view that not only is the evidence of the Crown inconclusive in connection with who fired the first shot that presumably shattered the windscreen of the accused’s vehicle, but also in her testimony PW1 was unequivocal that at that time, the accused was still driving with both his hands on the steering wheel. For these reasons, I have no doubt in my mind to reach the finding that when taken together with the rest of the evidence this factor clearly establishes that the accused was under attack as well as his passengers who had also resorted to hiding themselves under the seats to try to save themselves. [33] This brings me to the issue whether by firing the shot(s) at the group of attackers the accused exceeded the bounds of self defence. In this connection, it is salutary to refer to the case of Palmer v R (1971) 55 Cr App R223, PC at p242 which was quoted with approval by the Court of Appeal in Serame Linake v R.6 In the Palmer case, Lord Morris made the following instructive remarks:- “It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do so, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances..... It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be .... If there has been no attack, then clearly there will have been no need for defence. It there has been [an] attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action.” (my emphasis) [34] Although none of the people that testified told the Court that the deceased herein was killed by the shot that came from the accused’s firearm, the likelihood has not been disputed at all. As a matter of 6 C of A (CRI) No. 10/08 at p 13 (unreported) fact the accused testified that the deceased was probably killed by the shot. Though it is unfortunate that he lost his life in the process, it must be noted that under the given circumstances, the deceased in this case was not an innocent bystander who was caught by a stray bullet but was actually one of the attackers. [35] Not only did he and the rest of the group waylay and pursue the accused, but the evidence has established that upon catching up with him, they blocked his vehicle and tried to force him off the road while at the same time armed with sticks. A bullet was also discharged and his windscreen was hit. In my view, the cumulative effect of all these factors must have gripped the accused with fear and clouded his mind leaving him with little room to think clearly about all the possible avenues to ward off the danger to his life and the lives of his passengers. To this end see also Section 20 of the Lesotho Penal Code 7 [36] It would be remiss of me not to say something about PW2 as a witness. Judging upon his initial insistence that there was no long- standing war between the two groups and that the accused had been waylaid , pursued and attacked yet he had not been present from the beginning, I was left with a very poor impression of him as a witness. He appeared to be biased which is hardly surprising because he was from the other faction. I therefore cannot rely on his evidence that none of the Mafeteng taxi operators had a firearm in his possession. At any rate, he was not there from the onset. On the contrary, PW1 7 Act N0. 6 of 2010 testified that she had no previous connection with the accused person as she had never seen him prior to the day in question. She struck me as being a more neutral and thus reliable witness. [37] Accordingly, it is my finding that it would be a serious miscarriage of justice for this Court to oversimplify what was inarguably a serious and dangerous situation without giving due weight to all the circumstances of the case. Thus it is also salutary to note the sentiments of Innes JA in the case of Union Government (Ministry of Railways and Harbours) v Burr 8 where he had the following to say; “Men faced in moment of crisis with a choice of alternatives are not to be judged as if they had both time and opportunity to weigh the pros and cons.” [38] Similarly, in the case of S v Tatedi (2007) 2 BLR in expressing the same view with which I am in respectful agreement, the Court stated that persons react on the spur of the moment to prevent the invasion of their property or persons, as such the Court will not be astute to criminalise their conduct unless clear excesses are present. In the same vain, in casu, I am unable to find that the accused failed to successfully establish self-defence. On the contrary, it is my view that the action he took in the heat of the moment was reasonably necessary and justified given all the circumstances. I do not think that the accused should have waited until his attackers struck him and/or 8 1994 AD 273 at 286 his passengers first. The facts clearly show that the accused was well aware his attackers were fighting. [39] Lastly, it has been established that the onus of negating self-this defence lies with the prosecution and have be disproved beyond reasonable doubt. In this regard, I find the remarks of the Court of Appeal of Botswana in the case of Bobe v The State 9 quite apt vis-a- vis the facts herein where it was stated as follows:- the onus “Now it is a fundamental essence of this principle that where an accused person raises self-defence, the state to negative such defence beyond bears reasonable doubt. Indeed it is well established that this is so even though an accused person does not rely on self- defence. If the evidence suggests the existence of self- defence as a reasonable possibility then the accused is entitled to an acquittal.” [40] It is my view that in the present case the prosecution did not successfully negative self-defence. In the result, I find that the Crown has failed to discharge its onus of proving the guilt of the accused beyond a reasonable doubt. I therefore find as follows:- The accused is found not guilty and is accordingly discharged. N. MAJARA JUDGE 9 [2006] 1 BLR 254 at 257 For the Crown : Ms H. Motinyane For the Defence : Mr. CJ Lephuthing