R v Kori (CRI/T 12 of 90) [1990] LSCA 158 (15 October 1990)

CRI/T/12/90 IN THE HIGH COURT OF LESOTHO In t he Matter of : R EX vs CLEMENT KORI J U D G M E N T Delivered by the Hon. M r. Justice B. K. Molai on t he 15th day of October,1990. The accused is charged with t he crime of m u r d er on t he following a l l e g a t i o n s: "In that on or about the 5th day of May, 1987 and at or near Koro-Koro In t he d i s t r i ct of Maseru the said accused did unlawfully and intentionally kill Khauta Patrick Mothibe." When the charge was put to him t he accused pleaded not guilty. Mr. Nathane who represents the accused in this case told the court that the plea of not guilty, tendered by the accused, was in accordance with his instructions. The plea of not guilty was accordingly entered. It may be mentioned from the word go that by agreement of both M r. Nathane and M r. Thetsane. counsel for the crown, the post-mortem examination report per- formed on the body of the deceased was handed in from the 2/ bar as . -2- bar as Exh. A. The medical Doctor who had conducted the post-mortem examination was accordingly not called to t e s- tify in this t r i a l. The court heard the evidence of P. W.5, D/Tper Ramakeoane, who testified that on the day in question, 5th M a y, 1987 he received a certain report following which he proceeded to the fields at Koro-Koro. He found the dead body of the deceased and many people already gathered t h e r e. He examined the body of the deceased for injuries and found that it had sustained multiple stab wounds on the head, chest, back and all over the body. He counted altogether 21 stab w o u n d s. He conveyed the body of the deceased in a police vehicle to t he mortuary in Maseru and assured t he court that it sustained no additional injuries whilst it was being transported from Koro-Koro to the mortuary. According to Exh A, t he post-mortem examination r e p o r t, t he body of the deceased w as examined by a Medical Doctor on 6th May, 1987 at Queen Elizabeth II hospital. The external examination revealed multiple stab wounds on t he back, chest skulp and lips. The Medical Doctor confirmed that there was a total of 21 stab wounds. On opening the body it was found that there was a laceration of t he (L) ventricle, resulting in haemo- pericardium. On these facts the Medical Doctor formed t he opinion that death was d ue to haemopericardium as a result of a s t ab on t he heart. 3/ I am p r e p a r e d . . . . . .. -3- I am prepared to accept t he undisputed medical evidence that the deceased died as a result of the injuries found on his body. The important question, in this regard, is whether or not t he accused is the person w ho inflicted t he injuries on the deceased, and, therefore brought about his death. In his evidence P. W.1 told t he court that on t he afternoon of 5th May, 1987 he was working in his field. There was a t i me when ha went to releave nature in a donga. As he was going to the donga P. W.1 noticed the accused, w ho had been looking after a horse next to deceased's field, walking on the boundary of his (P. W.1's) field. He was being followed by the deceased. Shortly after ha had noticed the accused and the deceased following other on the boundary of his field, P. W. I heard a voice saying :"What h a ve I t a k e n ?" The voice c a me from the direction of the accused and the deceased. He could n o t, however; recognise whose voice it was between the accused and t he deceased. When he looked in the direction of the accused and the deceased P. W. I noticed that the t wo men w e re engaged in a physical s t r u g g l e. The accused w ho was also wielding a knife threw the deceased to t he ground and started delivering several blows at him with the knife. P. W.1. immediately rushed to w h e re the accused and the deceased w e re fighting. On arrival he found the accused on top of the deceased and stabbing him all over the body with the knife. He pleaded with him to leave the deceased alone as he had already finished 4/ him. -4- him. The accused, however, left the deceased and attacked him (P. W.1) with the knife. P. W.1 ran away. The accused chased after him for a short distance before returning to where the deceased was lying prostrate on the ground and continued stabbing him. According to him, P. W.1 then went to raise an alarm as a result of which many people came to the s c e n e. As he and the other people were going to w h e re the deceased had been assaulted by t he accused P. W.1 noticed t he latter disappearing into a nearby poplar tree plantation. On arrival to him he found the deceased already dying. The police were sent for and eventually came to the scene of c r i m e. In as far as it is relevant, the evidence of P. W.1 was corroborated by that of P. W.2, 'Ma-Isaac Mothibe, who told the court that she w a s, on the day in q u e s t i o n, one of the people w o r k i ng in the f i e l d s. Following the alarm raised by P. W.1 she did n o t, however, actually go to t he spot where the accused had been assaulting the deceased. The reason for that was because none of the people who came to where the deceased w a s, appeared to assist him up. She assumed, therefore, that the accused had left the deceased dead. The evidence of P. W.3, Makoae Mothibe, is to the effect that he is the headman in t he village of the accused and the deceased. The accused is therefore, his subject and so was the deceased who w a s, in f a c t, his 5/ o wn brother -5- o wn brother. In A p r i l, 1987 he had confronted the accused and the deceased o v er a complaint m a de by the latter that the former was damaging his maize in t he field. On 5th May, 1987 he came down to Maseru. On his return h o m e, f r om M a s e r u, he received a certain report following which he proceeded to the fields where he found the dead body of the deceased. It had bleeding injuries. Many people had already gathered t h e r e. He returned to Maseru in- tending to find a vehicle with which to convey the body of the deceased to the mortuary. Before he could reach M a s e r u, P. W.3, h o w e v e r, found a vehicle at t he village of Ha Phohleli. He returned to the scene of crime where he w a s, however, advised not to remove the dead body before t he police had arrived. P. W.3 then went to Maseru and reported what had happened to the police who immediately proceeded to t he scene of crime. He confirmed t he evidence of P. W.5 that the body of the deceased was examined for injuries before it was transported to t he mortuary. P. W.3 did n o t, however, accompany the body to the mortuary. On 6th May, 1987 he went to the deceased field next to where his dead body was found. He noticed that fire had been made next to a willow tree outside the deceased's field. The tree got burned and t he fire was still smouldering. He also found t wo maize cobs next to the spot where the fire had been m a d e. The m a i ze cobs had not yet been roasted. 6/ In his ...... - 6- In his testimony P. W.4, D/Tper Kharafu, told the court that on 6th M a y, 1987 he w as stationed here in Maseru when the accused surrendered himself and handed over a knife. Following an explanation which he made t o, him P. W.4 cautioned and charged the accused with the murder of the deceased. He took possession of the accused's knife and it had since been in t he custody of the police. It is significant that the accused g a ve no evidence in this t r i a l. Considering t he evidence adduced by the crown there can be no doubt that the accused was seen by P. W.1 and P. W.2 brutally assaulting the deceased at the very spot where his dead body was later found. That being s o, the answer to the q u e s t i on I have earlier posted viz.whether or not the accused is t he person w ho inflicted the injuries on the deceased and, therefore, brought about his death must be in the affirmative. It has been argued that as he suspected the accused to be damaging his maize in the field the deceased was the one w ho unlawfully attacked the accused and the latter acted in self-defence. No evidence w a s, however, given in support of the accused's defence of self-defence. Even assuming, for the sake of argument, that the deceased was the first agressor, there is simply overwhelming evidence that the accused continued stabbing the deceased who had already fallen to the ground and was therefore, posing no d a n g e r, at a l l, to the accused's life. That 7/ being so .. -7- being s o, it must be accepted that the accused exceeded the bounds of self-defence which c a n n o t, in my view, avail him. Although under cross-examination P. W.1, 2 and 3 assured the court that the accused was not a mentally deranged p e r s o n, M r. Nathane, counsel f or the d e f e n c e, informed the court that during his interview with t he accused he got the suspicion that he sufferred from a mental illness of some sort. I must say I observed t he accused as he sat in the dock during his t r i a l. He appeared to be normal. However, neither me nor the witnesses who testified in support of the crown case are experts in the field of mental diceases. In the light of the information given by t he defence counsel coupled with the ruthless m a n n er in which t he accused assaulted the deceased there w a s, in my view, a possibility that the accused might be suffering from a mental disorder. I considered it s a f e, t h e r e f o r e, that the accused should be referred for observation by a psychiatrist who was called to testify on behalf of t he d e f e n c e. D. W.1, Dr. Mohapeloa, told the court that he was the psychiatrist w ho examined the accused. His findings were that the accused sufferred from what is called arrested mental development or retardation as a result of trauma (birth i n j u r y ). Although in his evidence in chief the Doctor said he would not regard the accused 8/ as insane -8- as insane person, he told the c o u r t, under c r o s s- examination, that insanity and mental retardation w e re synonimous and the latter was another form of insanity. He would say at the time he committed t he offence the accused was mentally retarded but neverthless able to appreciate what he was doing. With due respect to the learned doctor, I am unable to follow t he logic of his evidence. Assuming the correctness of his evidence, under cross-examination, that insanity and mental retardation are synonimous and t he latter is another form of insanity it seems to me a non sequitur for the Doctor to say, in evidence in chief, he would not regard the accused as insane person. One thing the Doctor was positive of was that since birth the accused had been suffering from arrested or incomplete development of mind. In terms of the pro visions of S.2 of the Mental Health Law 1964. that is a mental incapacity or abnormality. From the Doctor's evidence that insanity and mental retardation or incomplete development of mind are synonimous and the latter is a form of insanity it necessarily follows that t he accused who has been suffering from mental retardation or incomplete development of mind (a form of insanity) from birth w a s, at the commission of the o f f e n c e, insane or mentally incapacitated. I would find the accused guilty as charged but insane in accordance with the provisions of subsection (3) of S. 172 of t he Criminal Procedure and Evidence Act, 1981. 9/ It is ordered -9- It is ordered that the accused shall be kept in custody at the Central Prison in Maseru pending the signification of Her Majesty's pleasure. Both assessors a g r e e. B. K. MOLAI JUDGE 15th October, 1990. For Crown : M r. Thetsane For Defence : M r. Nathane.