R v Maqalika (CRI/T 80 of 94) [2000] LSCA 105 (1 December 2000)

1 C R I / T / 8 0 / 94 IN T HE H I GH C O U RT OF L E S O T HO In the matter b e t w e en : R EX V M O L A H L E HI M A Q A L I KA R U L I NG D e l i v e r ed by t he H o n o u r a b le M r. Justice T. M o n a p a t hi on the 1st d ay of D e c e m b er 2 0 00 After close of the prosecution case M r. M o n y a ko for defence m a de an application for discharge of the Accused, T he application w as m a de under section 175(3) of the Criminal Procedure and Evidence Act 1981 ( C P & E ). That is if at the close of the case for the prosecution, the Court concedes that there is no evidence that the accused committed the offence charged in the indictment or any other offence of which he might be convicted thereon the Court m ay return a verdict of not guilty. T he application w as opposed by Miss Mokitimi for the C r o w n. In terms of the said section of the C P &E the decision to discharge or not to discharge is entirely in the discretion of the presiding officer. Miss Mokitimi said that at the stage of the proceedings at which the application is m a de the Court has to satisfy itself that regardless of credibility, evidence exists on the basis of which the Court might convict. In other words there should be evidence on the basis of which the C r o wn can be said to have established a case in respect of which the accused is called to answer. Miss Mokitimi said that the expression "no evidence" in the section m e a nt that there should be no evidence upon which a reasonable m an could convict. If the prosecution case does not attain this level of "a prima facie case" the accused is entitled to an acquittal at once. See R v S A B I L O NE N A L A NA C R I / T / 5 1 / 69 (unreported) by Jacobs CJ. M r. M o n a y ko referred to the case of R v K R I T Z I N G ER A ND A N O T H ER 1952(2) SA 401 where Roper J, held that even if a judge: " considers that there is insufficient evidence he has a discretion to refuse to discharge if he thinks that the prosecution case m ay be supplemented by the evidence of the defence." My c o m m e nt is that it is a case in which there is insufficient evidence that m ay be supplemented. W h e re there is sufficient evidence of prima facie kind there cannot be any fear of the C r o wn case being boosted. M r. M o n y a ko again referred to the work C R I M I N AL L AW T H R O U GH C A S ES at page 267 by the late Mofokeng J in which our case law was referred to by quoting from R EX v T E B O HO T A M A TI R A M O K A T S A NA 1978(1) L LR 70 at 73-4, that: " T he judge (though he sits with assessors) is the final arbiter on the law and fact so that he is justified if he feels that the credibility of the C r o wn witnesses has been irretrievably shattered, in say to himself that he is bound to acquit no matter what the accused must say in his defence, short of admitting the offence in our High Court the judge is allowed m o re latitude than in systems where a judge sits with a jury of if the assessors have a vote." And further at page 3 03 the learned author quoted as follows: " N ow at this stage of the proceedings the C o u rt is not entitled to approach the question of credibility on the s a me basis as w h en considering the whole case. T he sole concern is the assessment of the evidence a nd in this regard there can be no warrant for excluding the question of credibility." For the general approach see R v T U M E LO R A M O K H E S E NG A ND A N O T H ER C R I / T / 3 6 / 9 9, Molai J, 1/12/2000 pages 4-5. A nd finally defence Counsel referred to S O U TH A F R I C AN C R I M I N AL L AW A ND P R O C E D U RE by L a n d s d o wn a nd C a m p b e ll - Vol. V at page 519-520 w h e re the authors say: "In S v H E L L ER A ND A N O T H ER 1964(1) SA 5 25 " ( W) Trollip J expressed doubt as to the correctness of the view in K R I T Z I N G E R 'S case, that the court is entided to refuse to discharge the accused if it considers that there is a possibility that the case for the State m ay be strengthened by evidence emerging in the course of defence, a nd in R v M A L L ( 1) 1960 (2) SA 340(N) it w as said that the accused should not be put on the defence in the expectation that he might provide the necessary corroboration C a n ey J said that would not be a judicial exercise of discretion to refuse to discharge u p on the evidence of an accomplice w h e re corroboration w as required." At page 5 20 K u m l e b en J in S v O S T I L LY is reported to have referred to the emphasis in M A L L 'S case. On the question of discretion w h i ch is to be judicially exercised he said: " where there is no evidence w h i ch might reasonably lead to a conviction, sound reasons m u st exist for nevertheless not granting an application for discharge." Counsel agreed that it has to be (for discharge of the accused) a situation a reasonable m an might convict. T he whole situation w as well illustrated in the case of S v S H U P I NG 1983(2) SA 119 w h e re H i e m s t ra CJ said: " At the close of the State C a s e, w h en discharge is considered the first question is; (i) Is there evidence on w h i ch a reasonable m an m i g ht convict? if not (ii) Is there a reasonable possibility that the defence evidence m i g ht supplement the State case? If the a n s w er to either question is yes there should be no discharge. In a great majority of cases questions of credibility do not play a large role at this state of a trial. In S v M P H E T HA A ND A N O T H ER 1983(4) it w as said that: "If a witness gives evidence w h i ch is relevant then that evidence can only be ignored if it is of such a p o or quality that no reasonable person could possibly accept it. This w o u ld really only be in m o st exceptional cases w h e re the credibility of a witness is so utterly destroyed that no part of his material evidence c an possibly be believed." T h at a witness testimony has to be outrageous or absurd is o ne of those characteristics of very b ad evidence that lends itself to the a b o ve description. Referring to the facts of the case M r. M o n y a ko contended that the proceedings s h o w ed a kind of a fight that is called "a free- for- all" as a result of w h i ch a prima facie case could not be established. Also brought u n d er attack w as the testimony of o ne S a n k o e la R a m p h a l la ( PW 1). H a v i ng w a r n ed ourselves that the " j u d ge should not p ay regard to the credibility of the witness ...." it w as nevertheless worthwhile to look at the evidence of PW 1. This account by the witness is very enlightening as to w hy I adopted the attitude that the evidence at least of the witness w as not o ne to be t h r o wn out as absurd or outrageous. Deceased had asked one Maraling w hy he was assaulting the witness ( PW 1). After an insolent rebuff by Maraling the two engaged in a fight with sticks. Accused had been standing by aside. Accused then c a me and parried a blow (with his left hand) used by deceased intended for the said Maraling. W i th his right h a nd Accused stabbed the deceased with a knife. T he deceased then m o v ed towards the door while exclaiming that he had already been stabbed. This is a story that on its face reveals an offence or m o r e. It might be at the end of the whole case a lot of flaws will be exposed or on its basis a verdict of a lesser offence might be returned. It is obvious that on the principle enunciated above a reasonable m an might return a verdict of guilty if not on the charge but on any other offence of which he would be liable. T he application w as accordingly dismissed. T . M O N A P A T HI J U D GE