R v Lebusa (CRI/T 27 of 95) [2000] LSCA 88 (15 May 2000)

CRI/T/27/95 IN T HE H I GH C O U RT OF L E S O T HO In the matter of: R EX vs LEMENA LEBUSA J U D G M E NT Delivered by the H o n. Mr Justice ML Lehohla on the 15th day of M a y. 2000 T he accused is charged with murder; it being alleged by the C r o wn that u p on or about 14th M a y, 1 9 88 and at/or near Ha J o po in the Mohale's H o ek district he did unlawfully a nd intentionally kill N a ko Selone. To this charge the accused pleaded not guilty. As the indictment indicates this is a very old case that took simply too long before trial. It is unacceptable that a Preparatory E x a m i n a t i on record w h i ch appears to h a ve b e en c o m p l e t ed on 9th N o v e m b e r, 1 9 88 incurred such a long delay to be typed that the typed scripts only reached the Registrar's office on 2nd A u g u s t, 1 9 9 5. It is equally unacceptable that after all s u ch delay a further delay w as incurred in the Registrar's office with the result that the a c c u s ed h ad his first appearance before this C o u rt only on 26th N o v e m b e r, 1 9 99 w h en b e c a u se of sloppiness in the service of s u b p o e n ae for witnesses the case w as called just for m e n t i on before it could definitely take off on 22nd M a r c h, 2 0 0 0. In an attempt to shorten proceedings the defence admitted the depositions of the following witnesses w ho testified at the Preparatory E x a m i n a t i on of this matter in the C o u rt b e l ow : P W6 M o k h e s e ng Selone P W7 Detective T r o o p er L e p h e a ne P W8 Dr W E Nolting Further admission w as m a de in respect of P W5 M o q i bi Ntilo's evidence. T he admission w as in terms of the Criminal Procedure a nd E v i d e n ce At 7 of 1 9 81 section 2 2 7. T he a d m i s s i o ns w e re accepted by the C r o wn a nd read into the recording m a c h i ne a nd thus m a de part of the proceedings before this Court. N e e d l e ss to say the p o s t - m o r t em report w as h a n d ed in a nd m a r k ed Exhibit " A ". In t e r ms of Dr Nolting's p o s t - m o r t em report death could h a ve occurred on 15th M a y, 1 9 8 8. T h is doctor established the cause of death as severe h a e m o r r h a ge f r om the s t o m a ch a nd intestines caused by piercing w o u n d s. T he doctor indicates that his findings are consistent with the report that he received that the d e c e a s ed h ad b e en stabbed. T he external appearances are described by Dr Nolting as being of a m an with swollen b o dy a nd loose skin a nd blisters all over. He attributes this p h e n o m e n on to freezing, possibly the result of refrigeration in a funeral parlour. T he doctor further observed w h at he describes as omentum c o m i ng t h r o u gh the w o u nd in the a b d o m e n. He observed o ne w o u nd on the b a ck a nd o ne w o u nd on the right hip as reflected in the d i a g r am attached to Exhibit " A ". T he d i a g r am reflects at (1) a four centimetre long w o u nd caused by a sharp object. T he omentum majus hanging out. At (2) is reflected a t wo centimetre long w o u ld caused by a sharp object. T he w o u ld is described as very deep. At (3) is described a small w o u nd that is not deep but w h i ch goes to the bone. P W 5 's admitted evidence s h o ws that his h o me is at Ha Jopo and that on the evening of that day a concert w as taking place in a hall in that village. P W5 w as present at that concert. He had occasion to leave for his homestead but on turning back to the concert hall he found the deceased fallen inside the concert hall. P W5 s aw the w o u nd on the deceased's belly and sought the help of w o m en to h a nd over a d o ek with w h i ch P W5 attempted to tie the belly with a view to staunching the bleeding. P W5 said the chief arrived and ordered m en to look for the culprits in the act. T he accused w ho later w as charged as accused 1 along with another c a me to the concert hall after thus being rounded up with P W 2. T he accused i.e. L e m e na L e b u sa according to P W5 confessed to the stabbing of the deceased. T he deceased also w as rueful that Talasi had joined in the chase after h im otherwise he said he w o u ld h a ve "outdone" people w ho had set after him. P W6 also resides at Ha Jopo. He is the elder brother of the deceased. He w as sent for in the night w h en his brother w as said to h a ve sustained serious injuries. P W6 s aw for himself w h en he arrived at the concert hall that the deceased w as stabbed. P W6 a nd others asked w ho h ad stabbed the deceased the deceased replied that "it w as L e m e n a, he w as with K h a t a m pi a nd M o n g o l i ". T he deceased could still speak then. H o w e v er attempts to rush h im up for medical attention w e re foiled by the fact that he died a l o ng the w a y. A c c o r d i ng to P W6 the deceased h ad intimated to h im shortly before he died that he w as tired a nd h ad preferred being taken b a ck h o m e. H is actual w o r d s, uttered shortly before he died a nd while he w as carried on a ladder intended to c o n v ey h im to a vehicle s o me distance a w ay w e re "I am finished" a nd he died. T he b o dy w as c o n v e y ed to the doctor w ho p e r f o r m ed the p o s t - m o r t em examination. P W7 a police officer attached to the C ID at Q a c h a 's N ek testified at Preparatory E x a m i n a t i on that on 16th M ay 1 9 88 he w as at Ha S e k a k e. He k n ew the accused. On that d ay the accused w as with his relatives at Ha S e k a k e. P W7 examined the b o dy of the deceased in the presence of the accused. P W7 observed the w o u n ds w h i ch have been referred to earlier. He accordingly cautioned the accused and gave h im a charge of murder. P W7 conveyed the b o dy along with the accused to Qacha's N e k. T he b o dy of the deceased sustained no further injuries during the conveyance between Ha Sekake and Qacha's N e k. T he oral evidence of witnesses led w as first, though for a very brief period, preluded by that of P W2 M o n g o li L e b u sa w h o se evidence had to stop because the witness w as hungry and had not h ad meals in the morning of the trial. T h us he had to step d o wn and the Court heard the evidence of P W1 M a m p o l ai Sechaba. P W1 and the deceased w e re lovers. P W1 k n ew the accused too because the accused's brother is married to P W 1 's sister. P W1 stays at Ha M a b a t ho village w h i ch is far from that of the accused and his sister-in-law. PW1 testified that she could neither read nor write. M o r e o v er on the day of the concert she had c o me on a visit to her sister's h o me at Ha Jopo. In the e v e n i ng she a nd her lover i.e. the deceased w e re at the concert enjoying the entertainment offered there. P W1 accepted his sister's offer to put up with his lover in o ne of the huts at her sister's seeing that P W1 's attempts to get a c c o m m o d a t i on elsewhere for the night w as meeting with failure. T he sister's offer appeared e v en the m o re w e l c o me b e c a u se the h u s b a nd of P W 1 's sister w as a w ay in the m i n es in J o h a n n e s b u rg at the time. P W1 a nd her lover accordingly repaired to the hut prepared for their a c c o m m o d a t i on for the night after the exhausting stay at the concert hall. T he night p r o v ed uncomfortable b e c a u se the accused c a me k n o c k i ng at the door a nd m a k i ng w h at to me appears to be m a k i ng a nuisance of himself. A s k ed w ho it w as by P W1 the accused replied " L e m e n a ". T he o c c u p a n ts of the hut did not o p en the d o or for h i m. He threatened to break the door. A s k ed w hy he w o u ld break the d o or he replied by posing a counter question n a m e ly w hy P W1 w o u ld not o p en the door. To this she said she w o u l d n 't o p en the d o or b e c a u se she w as sleeping. This in turn led to the question p o s ed by the accused "with w h om are y ou sleeping". T o ld that P W1 w as sleeping with the deceased the accused is said to h a ve said "if y ou are sleeping with N a ko in this h o u se o p en a nd I am g o i ng to slaughter h im like a goat". A s k ed w hy the accused w o u ld do that he v o u c h s a f ed P W1 no reply. Apparently the accused w as incensed by the idea of the deceased sleeping with a w o m an at his relative's house. T he accused then with the assistance of others including Talasi the deceased's relative started raining stones at the d o or of this hut w h i ch the C o u rt w as told did not h a ve a ny w i n d o w s. P W1 suggested to the accused to go a nd ask his sister-in-law to o p en the d o or but he declined to take this suggestion a nd instead w o r k ed h i m s e lf up into a fury of a m an w ho w as frantically preoccupied with hurling stones at the d o or of the hut in w h i ch P W1 a nd the deceased f o u nd themselves entrapped. K h a t a m pi w ho at o ne stage w as L e m e n a 's co-accused w as heard to say aloud "if there are M o o k ho i.e. P W1 (her m a i d en n a m e) a nd N a ko in there kill t h em both so that the case could h a ve no evidence". P W1 told the Court that w h en the deceased heard the voice of P W3 Talasi outside he said "oh y ou Talasi my brother and y ou Tanki ( P W 4) y ou are in that group. Am I to be killed in your presence". Apparently in a vain attempt to m a ke believe that Talasi w as absent the accused m o c k ed at the deceased and asked " do y ou think Talasi is outside here". If I m ay pause here, it appears that a concerted effort w as being m a de to obscure the identity of people w ho had joined ranks with the accused to assail the deceased. T he accused's identity could not be foiled because he h ad the undisguised motive to object to the couple unmarried to each other sleeping together at his brother's place in the latter's absence. T he accused w as heard by the entrapped couple to call to M o n g o li the accused's brother's son a nd order h im to go to the lower house to fetch a spear. It is P W 1 's evidence that M o n g o li m a n a g ed to bring the spear along because on his return M o n g o li w as heard to say to the accused "here it is". In any event P W2 M o n g o li himself in turn corroborates P W 1 's evidence on this very important aspect of the matter. Be that as it m ay it w as during the course of this torment and sheer terror instilled into the deceased a nd P W1 that the deceased while thus entrapped inside realising that the door w as about to give in, asked P W1 to b l ow off the lamp. He thus m a de g o od his escape f r om the hut aided by darkness inside there. B ut the m o on is said to have been shining outside. W h en P W1 w e nt outside everybody had cleared from the premises. S he testified that w h en the deceased fled from the hut the group outside chased him. She, on getting outside, ran a w a y. S he didn't k n ow w h at direction the chase took. S he c a me to see the deceased later in the concert hall that night. He w as w o u n d e d. He w as already b a n d a g ed but P W1 could see blood seeping through the bandage m a de out of a doek. Of importance is that in that concert hall P W1 s aw the accused, P W2 and P W3 a nd others. H o w e v er she didn't hear if the accused said anything. P W1 heard the deceased relate the events of the night, including the incident that led to his injury, to his brother P W 6. U n d er cross-examination P W1 w as r e m i n d ed that at Preparatory E x a m i n a t i on s he did not tell the Magistrate that she m et with the accused in the concert hall w h en d e c e a s ed w as already injured. I don't think m u ch should turn on this o m i s s i on b e c a u se it is a fact that the C h i ef h ad called for all those w ho h ad earlier b e en to the concert to r e c o n v e ne at the concert hall w h e re the deceased lay injured. B o th P W1 a nd the a c c u s ed h ad earlier b e en to the concert. It w as put to P W1 that accused w as not in the concert hall at the time P W1 w as relating her story to the gathering. S he insisted he w a s. P W1 denied that w h en the a c c u s ed c a me a nd k n o c k ed at the d o or w h e re P W1 a nd the deceased w e re sleeping s o m e o ne w ho w as in there k n o c k ed h im on the head. I accept P W 1 's denial a nd reject the suggestion that a n y o ne w ho w as in that hut hit the accused on the head. I reject also the suggestion that is a sequel to this bizarre invention that h ad it not b e en for that assault he w o u ld not h a ve h ad cause to fight with the deceased. I am not able to look with favour or accept the suggestion that K h a t a m pi retrieved the spear f r om the accused. H is failure to give evidence to give explanation regarding things he is said to h a ve d o ne c a n n ot be explained a w ay by questions put to C r o wn witnesses that the accused w as not c o n c e r n ed that the d e c e a s ed w as sleeping with P W1 as P W1 is not the wife or concubine of the accused. N or can it avail the accused that because K h a t a m pi had m a de unsavoury suggestions about eliminating the entrapped couple then he m u st have been the o ne w ho wielded the spear with w h i ch the deceased w as stabbed. I therefore accept as satisfactory the evidence of P W1 on essential aspects of the charge preferred against the accused. P W2 after being recalled proceeded and informed the Court that the accused is his uncle. P W2 is the son of the w o m an w ho invited P W1 and her lover to put up at her h o m e. P W2 did not k n ow the deceased. P W2 heard of the description of the deceased from P W5 and others during day time. T he description m a de coincided with w h at P W2 perceived of the deceased later. P W2 w as at the concert w h i ch had taken place at Mantsieng's place. This w as during the night. It w as during this concert that P W2 fell asleep and w as a w a k e n ed by a girl w ho indicated that people w e re breaking P W 2 's parental h o m e. P W2 accordingly w e nt to find out w h at w as happening. I should indicate that P W2 at the time w as aged between 12 and thirteen. He ran to his house w h i ch is only 1 00 metres a w a y. On arrival at his h o me P W2 f o u nd that the d o or h ad already b e en broken. P W2 testified that on arrival at h o me he s aw a m o ng p e o p le standing outside his uncle L e m e na the accused, K h a t a m pi w ho w as at o ne stage a c c u s ed 2 a nd P W4 T a n ki Sello. T h at P W2 m e n t i o n ed that the accused L e m e na w as a m o ng people outside is quite significant in v i ew of w h at is alleged to h a ve b e en his role in this total episode. I n d e ed he said the three m en he m e n t i o n ed w e re standing outside. He said the accused called h im aside a nd told h im to go a nd fetch a spear. I am saying that this is quite significant because a spear is a w e a p on that is associated with causing physical h a rm or death. It is far-fetched a nd indeed inconceivable that a close relative of the accused w ho e v en stayed with h im could falsely implicate the accused a b o ut the instruction he g a ve P W2 to fetch a spear. In my v i e w, the instruction to fetch a spear w h i ch w as later h a n d ed to the accused could not h a ve b e en for a ny reason but, in the context of w h at w as prevailing, for p u r p o s es of causing h a r m. P W2 indeed fetched the spear f r om his parental h o me w h e re the accused w as staying. P W2 didn't k n ow w h at the spear w as going to be used for. G i v en his a ge in 1 9 88 (he w as b om in 1 9 7 5) he could not be b l a m ed for not inquiring w h at the spear w as n e e d ed for. It is significant that on being h a n d ed the spear the accused snatched it f r om P W 2. This w as at the stage that P W2 s aw m a ny people c o me running after the o ne w ho w as running ahead. At this stage the accused w as no longer at the h o u se w h e re P W2 h ad left h im w h en he first m et h i m. T he scene is clear that the situation w as o ne of feverish urgency on the part of the m an w ho snatched the spear f r om P W2 a nd joined in the chase. This witness got to realise that P W4 a nd K h a t a m pi h ad joined the chase because w h en the chasers returned a nd c a me u p w a r ds the t wo w e re present. On his return f r om the chase the accused m et with P W2 w ho h ad b e en lagging behind during the chase. T h ey w a l k ed side by side the accused still holding the spear. T he nearest P W2 w as to the spear at a ny stage during the return w as a foot a w a y. He noticed nothing on the spear. B ut he says after a while during the chase he h ad heard the accused say "I h a ve stabbed h i m ". A short distance a w ay he h ad heard K h a t a m pi say "I h a ve hit h i m ". P W2 never asked w ho these people w e re referring to. B ut to my m i n d, given that no other m an than the deceased h ad b e en stabbed or hit during the chase in w h i ch the a c c u s ed a nd K h a t a m pi participated, I h a ve no d o u bt that reference w as being m a de to the deceased. T h us I reject as totally baseless a nd therefore unacceptable the suggestion that the w o r ds attributed to the accused n a m e ly "I h a ve stabbed h i m" w e re actually an inquiry by the accused w h e t h er K h a t a m pi h ad stabbed s o m e o n e. I accept P W 2 's story that the accused uttered the w o r ds "I h a ve stabbed h i m ". P W2 said on g o i ng h o me he joined K h a t a m p i, the accused a nd P W 4. He a nd the accused m a de for P W 2 's parental h o me w h e re they slept after partying c o m p a ny with K h a t a m pi a nd P W 4. P W2 a nd the accused w e re called to the concert hall at early d a wn w h e re they found the deceased lying on the g r o u nd with injuries. U n d er cross-examination P W2 stated that he didn't see the accused drink that night. H o w e v er he readily c o n c e d ed that the accused h ad b e en drinking at d ay time. P W2 denied that the a c c u s ed w h en telling h im to go a nd fetch the spear h ad explained to this witness that s o m e o ne in the h o u se h ad assaulted h im a nd that this w as w hy the accused w a n t ed to fight p e o p le w ho h ad assaulted h im in there. Indeed this question lacks of elementary c a n o ns of credibility. First, P W1 told the C o u rt that s he a nd the deceased w e re the only p e o p le w ho w e re in that hut a nd that they w e re sleeping. N e x t, n o w h e re did she suggest or c o n c e de that a n y b o dy o p e n ed that d o or before it b r o ke d ue to b e i ng pelted w i th stones f r om outside. H ow then the a c c u s ed c o u ld h a ve b e en assaulted by p e o p le in there in the circumstances defies all logic a nd indeed escapes m e. T h at P W2 a close relative of the a c c u s ed dismisses this suggestion as totally false strengthens the notion of ill-use put by the accused to this spear. Be it r e m e m b e r ed that P W2 said he w o u l d n 't w a nt anything evil to befall the a c c u s ed in this proceeding. S a y i ng so he satisfied me that he bears the a c c u s ed no malice. T h us he is n ot bent on getting his o wn b a ck on h im by falsely implicating h im in this trial. T he flimsy suggestion that it is K h a t a m pi w ho u s ed this spear probably to h a rm the d e c e a s ed d o es not absolve the a c c u s ed f r om liability for its u se b e c a u se he is the o ne w ho ordered that it be fetched. P W 2 's evidence on the issue is of crucial i m p o r t a n ce b e c a u se he says w h en m a k i ng this order the a c c u s ed w as shouting in anger. No w o n d er then that P W1 f r om inside the hut regarding the spear h e a rd that order w h i ch w as laced w i th feverish u r g e n cy for its no d o u b t, i m m e d i a te use. I m ay e v en surmise that the a c c u s ed b e c a u se he a nd his c o m p a ny h ad entrapped the deceased in there felt he could not risk the d e c e a s ed escaping in his a b s e n ce w e re it to fall to his o wn lot to fetch the spear he so earnestly n e e d e d, his n e p h ew c o me to his aid by fetching it. P W2 in re-examination denied that the a c c u s ed a s k ed K h a t a m pi if K h a t a m pi " h ad stabbed h i m ". I accept P W 2 's evidence in this respect a nd accordingly reject the suggestion m a de to h im on the score of falsity. I m ay indicate that the evidence of P W2 as it stands is of g o od quality, untainted with exaggerations or d o w n r i g ht falsities. He didn't s e ek falsely to put his uncle in b ad light. He readily indicated his ignorance of things alleged to h a ve h a p p e n ed in his a b s e n ce e v en w h e re these tended to conflict w i th his evidence. This is w h e re astute re-examination by a l a w y er w ho is familiar with his brief c a me to g o od use. On the w h o le P W 2 's evidence r e m a i n ed u n s h a k e n. It is corroborated in material respects by that of P W 1. T he e v i d e n ce of P W3 is not reliable insofar as he indicated that he h ad b e en drinking too m u ch on the d ay in question. I decide therefore to overlook it in favour of credible evidence so far given. M o r e o v e r, I think P W 3 's evidence is bedevilled by the fact that he w i s h es to distance himself f r om events w h i ch put h im a m o ng p e o p le w ho w e re in the c o m p a ny of the accused pelting with stones the d o or to the hut w h e re P W1 a nd the d e c e a s ed w e re sleeping. N ot only so, but he w as seen a m o ng those w ho chased the deceased after his escape from the hut and finally; though not directly charged by the deceased with having assaulted h i m, he bears the shameful responsibility of having sided with the deceased's tormentors as a result of w h i ch the deceased d e n o u n c ed h im as the m an w h o se acts m a de the deceased see no point in trying to save his life. It should be r e m e m b e r ed that P W3 is the deceased's cousin w ho ordinarily should h a ve tried to defend h im instead of joining with those w ho w e re bent on injuring a nd harming him. T he s a me goes for P W4 w ho though not a relative of the deceased his evidence is in sharp contrast with that of P W2 to the extent that P W4 said that the deceased ran into the concert hall hotly pursued by the accused. I am not going to m a ke any use of the evidence w h i ch is unreliable in s o me patent respects for fear that even w h e re it c o n f o r ms with s o me aspects w h i ch are admissible there is always fear for treating with favour s o me portions of such a witness's evidence because of the uncertainty to k n ow w h e re the lies e nd and the truth begins and vice-a-versa. I take solace in the statement of our criminal l aw that w h e re there is p r i ma facie evidence of criminal liability at the e nd of the C r o wn case, then if the defence closes its case, as in the instant matter without leading any evidence, the p r i ma facie evidence becomes conclusive. Indeed Mofokeng J in CRI/T/32/78 Rex vs Makhethe and 2 Others (unreported) at p. 13 succinctly put the point across in the following words : "It was argued that at the close of the Crown case there was prima facie evidence on which a reasonable court might convict and that when the defence closed its case without leading any evidence whatsoever, the prima facie evidence became conclusive evidence. The position as I understand it is this : at the close of the Crown case but before the defence has closed its case the question to be decided is : is there evidence against the accused on which a reasonable court might find the accused guilty. But when the defence has closed its case without leading evidence, the question to be decided is; has the Crown established the charge beyond a reasonable doubt " In CRI/T/1/92 Rex vs Masupha Seeiso (unreported) at p. 10 and delivered on 3rd August 192 the Court had this to say : "It does seem possible that generally speaking though at the end of the Crown case it is found that an accused person has a case to answer, if he in turn closes his case without leading evidence he could be acquitted if it is found that the Crown has not discharged the onus cast on it to furnish proof beyond a reasonable doubt that an accused person is guilty. This might be a risky step for an accused person to take for in a majority of cases the prima facie case becomes conclusive as in such instances other considerations... come into play including the accused's failure to discharge evidential burden where it is shown to exist after the totality of the evidence has been weighed". T he invaluable w o r ks of S. E. v an der M e r we et al styled E v i d e n ce at p a ge 4 17 provide a f u nd of pertinent material in a passage reading : " T he State will h a ve established a p r i ma facie case; an evidential b u r d en (or duty to a d d u ce evidence to c o m b at a prima facie case m a de by his ) will h a ve c o me into existence i.e. it will h a ve shifted, or o p p o n e nt b e en transferred, to the accused. In other w o r d s, a risk of failure will h a ve b e en cast u p on h i m. T he o n us still rests on the State, but, if the risk of losing is not to turn into the actuality of losing, the a c c u s ed will h a ve the duty to a d d u ce evidence, if he w i s h es to be acquitted, so that, at the e nd of the case, the C o u rt is left with a reasonable d o u bt " T he late M o q i bi indicated that the deceased stated that the accused h ad stabbed h i m. P W1 a nd P W2 also said as m u ch before this Court. Since the a c c u s ed c a me to the hall in c o m p a ny of P W2 then no reason c an impress on this C o u rt w hy the a c c u s ed could not h a ve heard s u ch w o r ds uttered in his presence. H is attempt to suggest t h r o u gh questions put to C r o wn witnesses by his C o u n s el on his behalf that he couldn't h a ve heard those w o r ds is a m e re charade. F u r t h e r m o re credible a nd therefore acceptable e v i d e n ce s h o ws that the accused said within P W 2 's hearing "I h a ve stabbed h i m ". N e e d l e ss to say no o ne else within the vicinity of that utterance w as stabbed with a spear during that night besides the deceased. T he accused's pretence, p ut through his counsel to the C r o wn witnesses that it m i g ht be K h a t a m pi w ho stabbed the deceased c a n n ot avail the a c c u s ed b e c a u se in the light of the fact that the accused h ad earlier b e en heard to say if it w as N a ko w ho w as with P W1 in the hut he w as going to slaughter h im like a goat, a nd in the light of the fact that he ordered for the spear to be fetched while he w as keeping w a t ch to ensure that the deceased didn't escape; or if he did, from the entrapment it w o u ld not be with a ny success, further in the light of the fact that within a short while of the e nd of the chase he w as heard to say I h a ve stabbed him, and finally in the light of the fact that the deceased laid the b l a me on h im for the stabbing; no w ay c an the accused h o pe to escape criminal liability for the death of the deceased. E v en assuming it is K h a t a m pi w ho stabbed the deceased, the accused h ad d o ne m o re than e n o u gh to s h ow he associated himself with Khatampi's acts hence his resort to a lordly sleep in the comfort of his b ed e v en though he h ad earlier heard Khatampi's w i c k ed suggestion that it w o u ld be better to kill P W1 too if the deceased is killed, so as to suppress a nd render evidence of the sordid deed obscure and incapable of detection. N ot that I believe a ny bit of this calculated herring across the trail; but in case K h a t a m pi is also liable it does not render the accused innocent because clearly he m a de c o m m on cause with K h a t a m pi w e re I to take it that K h a t a m pi did the stabbing w h i c h, I do not. As in CRI/T/75/79 Rex vs Peter Kenene Mahase (unreported) at p.39 I wish to reiterate the phrase reflected therein to the following effect as it is apt in the instant case as w e l l: " T he Court formed an opinion at the close of the C r o wn case that a sufficiently strong prima facie case existed to warrant the accused's answer. W h at I m e an is that standing on its o wn the C r o wn case w as e n o u gh to secure the accused's conviction" for the crime charged. I m ay a dd that in a criminal case it is important to establish, w h e re possible, motive for the offence committed. In the instant case the only form of motive I have been able to discern is the accused's resentment at the deceased sleeping with a w o m an at night at his o wn brother's household. U se of the lethal w e a p on in the form of a spear driven through the upper part of the h u m an b o dy c an always lead to o ne thing i.e. criminal intent to c o m m it the offence charged. T he accused is accordingly found guilty of m u r d er of N a ko Selone as charged. My assessor agrees. For C r o wn : Mr Ntaote For Defence : Mr Matooane J U D GE 15th M a y, 2000 E X T E N U A T I ON During the extenuation phase of the trial the Court benefited from the agreement m a de between counsel as to w h at appear to me truthfully to be t wo important factors w h i ch could be considered in an attempt to find w h e t h er or not there are extenuating circumstances in this case. T he first is that the accused is an unsophisticated illiterate. T he next is that the element of intoxication is a factor w h i ch is w o r th considering at this stage of the proceedings. Indeed, extenuating circumstances w h e re established serve to palliate the accused's m o r al blameworthiness a nd in the result enable h im or her to avoid the ultimate penalty of death. T he o n us is on the accused on a balance of probabilities to establish the existence of extenuating circumstances. T he test is subjective. T he existence of extenuating circumstances can be proved by evidence not too remotely related to the case that (a) the accused w as d r u nk (b) the accused is i m m a t u re (c) the b a c k g r o u nd a nd social milieu of w h i ch he is a product d o es not f r o wn upon a certain form of conduct. The list is not exhaustive. But even if one factor standing alone might not avail an accused person, indeed a combination or accumulation of two or more factors might just be enough to fit the bill. Thus taking into account also factors which are not part of the agreement between the respective counsel; the situation revealed by facts gathered from evidence is such that the combination of drunkenness and illiteracy subjectively could have moved the accused to think that he justifiably had a bone to pick with the deceased for sleeping with a w o m an in his brother's household and that the form of intent reflected is one known as dolus eventualis as opposed to dolus directus, as reflected by the fact that there was a hue and cry after the deceased thus showing it couldn't be said there was direct intent to kill. While not meaning to be understood to say that the existence of dolus eventualis necessarily helps avert the ultimate penalty, I should indicate that put side by side with dolus directus the form of intent known as dolus eventualis , would more readily help the accused avert the ultimate sentence than would dolus directus do. Thus I feel that the accused has adequately discharged the onus cast on him and do find that extenuating circumstances in this case exist. M I T I G A T I ON T he Court has taken into account that the accused has no previous convictions. Further that he w as relatively y o u ng and aged 25years at the time of the c o m m i s s i on of the offence. Further that the case has b e en hanging over his head since 1 9 88 a nd that he has h ad to forfeit his bail since 1995 w h en he mistakenly thought that the l aw h ad g o ne on retirement. He is married and has t wo children. H o w e v er the Court w o u ld be failing in its duty if it could be blinded by these factors to the fact that an innocent life has b e en lost; a nd that the accused tended to over play his h a nd w h e re it w as not his business to interfere as the authorised person ' M a m o n g o li had given permission to the couple to put up at the place w h i ch is hers and not the accused's. T he accused is sentenced to 12 years' imprisonment My assessor agrees J U D GE 15th M a y, 2 0 00 For C r o wn : Mr Ntaote For Defence : Mr M a t o o a ne