R v Molato (CRT/T 1 of 95) [1998] LSCA 24 (10 March 1998)

IN T HE H I GH COURT OF L E S O T HO CRT/T/1/95 In the matter between: R EX vs MOQETHI MOLATO J U D G M E NT Delivered by the Honourable Mr. Justice W. C. M. Maqutu on the 10th day of March, 1998 The accused is charged with the murder of Lefu Kao. The incidents that culminated in the death of the deceased took place on the 13th November, 1993. On the 2nd December, 1997, when the matter first came before me, the accused pleaded guilty to culpable homicide on the advice of his counsel Mr. Nchela. Mr. Lenono for the crown did not accept the accused's plea. Mr. Ncela for the accused applied for reference of the accused to a psychiatrist for examination. The Crown supported accused's application. The court asked Mr. Lenono for the Crown to / arrange for the accused's psychiatric examination. T he court also m a de the following order:- " Accused is referred for psychiatric examination. His bail is cancelled a nd accused will r e m a in in custody f r om this day forward." On the 24th February, 1 9 9 8, w h en the matter c a me before court., both M r. Nchela for the accused a nd M r. L e n o no for the C r o wn agreed that the medical report s h o w ed the accused w as fit to stand trial although he w as confused at the time of arrest. T he court w e nt over the psychiatrist report find agreed that w i th b o th counsel that the conclusion of the psychiatrist is that the accused is fit to stand trial. I will return to the medical evidence because, the court called the psychiatrist at the e nd of the C r o wn a nd the defence cases. T he evidence in the depositions m a de at the preparatory examination w as substantially not disputed. Nevertheless the C r o wn a nd the defence selected a few witnesses to give viva voce evidence to clarify a nd elaborate on a few facts for the benefit of the court a nd the accused. It w as decided for convenience ( w h en the depositions w e re read) to treat the admitted depositions as if actual witness h ad given evidence in court. T he deposition of M a m p o no Phatsoa w as called P W 1, that of Mafrance Moijatjl P W 2, that of Malekhetho K h a ng P W3 a nd that of Detective Lance Sergeant M o s o eu P W 4. M a n i p o no Phatšoa PW1 w as from a funeral, on the w ay h o m e, w h en she m et the accused. Accused w as on horseback. Accused asked w h at PW1's n a me is. Accused then asked the m an he w as with to c o me a nd as he said this, he produced a knife from his pocket. Accused said they should kill a woman, PW1 does not remember. Accused rushed at PW1 and attempted to stab PW1. PW1 not away. Accused and the other man were complete strangers to her. PW1 says she did not hear what the other man tried to say to her as she is deaf. All she can say is that she h ad not provoked the accused in a ny w a y. Mafrance Moijatji P W2 states that accused c a me to w h e re there w as a removal of m o u r n i ng cloth ceremony at M a n k o e n g. She w as asked by accused's grandmother to serve the accused with porridge. This she did. "The porridge w as hot a nd at the request of the accused, no sugar w as added to the porridge. Accused c o n s u m ed the porridge. Other people w e re served the s a me porridge a nd they ate it. Accused did not finish the porridge. PW2 stated that she h as never b e en accused of bewitching anybody through food. She is surprised that there is n ow an allegation of witchcraft levelled against the porridge w h i ch w as eaten by several other people. This porridge is n ow being linked to the death that occurred. P W2 says she never quarrelled with accused. As a m e m b er of accused's family she h as never received a report that the accused is mentally disturbed. PW3 Malekhetho K h a ng is the accused's grandmother. Accused is the son of the daughter of P W 3. She h as never heard of a ny m e n t al disturbance associated with accused. T he relations b e t w e en P W3 a nd the accused are good a nd the accused respects her. A c c u s ed h ad even given one of his daughters to P W3 to look after P W 3, as P W3 is old. On the 13th N o v e m b e r, 1 9 93 accused c a me to see P W3 a nd accused's daughter on the w ay to a funeral at Molikuoa's. Accused w as served with food. After that he asked for porridge ( m o t o h o ). M o t o ho is sour porridge w h i ch people in this country drink. P W3 says she asked P W2 to give accused the porridge he w as asking for. P W2 served the accused with this porridge without sugar at the request of the accused. Accused did not finish the porridge. Accused w ho w as with a c o m p a n i on the left. Later in the day she was informed by their headman that accused had killed a person. PW3 says she went to where the deceased was. The deceased lay below the road and the accused was sitting nearby. While she was at the scene of the killing, m en expelled her and threatened to assault her. P W3 says people of her village have often referred to her as a witch. Not long after this incident accused's uncle came to fetch accused's daughter. Accused used to be on good terms with her and was always served with food by PW3 without incident or complaint. PW4 was Detective Lance Sergeant Mosoeu. He received a report about the deceased's death and went to the scene of crime. He found a corpse which he undressed and found it had one stab w o u nd in the middle of the chest. The Chief handed the accused and a knife to P W 4. PW4 took the body to the mortuary. Accused was subsequently charged with murder after giving an explanation. The knife that was used by the accused on the deceased was an exhibit before the Magistrate at the preparatory examination. It had since been misplaced. This presented no problems as both the Crown and the defence admitted facts surrounding it and that accused had used it on the deceased. The post-mortem report handed by consent shows deceased died of a stab w o u nd on the left side of the chest on the lateral inferior aspect. There w as a laceration of the left lung. T he cause of death d ue to left h a e m o p n e u m o t h o r ax a nd left lung laceration a nd collapse. T he first witness to give s w o rn viva voce evidence before me w as PW5 M o h a le Kao of Mosalemane. He stated that he k n o ws the deceased w ho is his younger brother. He k n o ws the accused w ho is also his relative. On the date the deceased died they h ad g o ne to b u ry a child of his n e p h e w. At this funeral they w e re with deceased. T he funeral took place without a ny notable incident. W h en accused a nd Molato Phatla left for h o m e, they w e re following the deceased w ho w as on horseback. Before they left for h o me Molato Phatla h ad told h im there w as something strange about the accused. Molato Phatla even suggested that the deceased should lend the accused the horse, Molato Phatla said accused w as strange a nd it s e e m ed the accused w o u ld not be able to go h o m e. Accused, Molato Phatla a nd deceased left P W5 behind. P W5 says not very long thereafter at d u sk he w as notified of the death of his younger brother. He found his y o u n g er brother dead b e l ow the road a nd the accused sitting nearby with several people. Accused admitted killing deceased. Accused in a n s w er to his questions said he does not k n ow w hy he killed the deceased. He found the accused tied up in case he attempted something. The accused w as peaceful and normal. They handed the deceased and his brother's corpse to the police the following day. They had guarded the corpse the whole night. The Crown called PW6 Khotso M o k u po w ho gave sworn evidence. P W6 says on the day in question at about sunset, he w as untethering cattle w h en accused said (to the man he w as with) they should kill a w o m an w ho w as ahead of them. Accused w as angry and he w as about 2 00 paces from him. The accused w as on horseback. The accused barred the w ay of that w o m a n. The w o m an shielded herself behind the m an the accused w as with. W h en the accused went for this w o m a n, she ran away. Accused then stabbed the m an he w as with, with a knife. That person fell and rolled d o wn the road and fell below it. Accused then said he had stabbed the w o m an w ho w as stopping h im from going h o m e. Accused w as still on horseback w h en he stabbed this m a n. A m an came w ho had been apparently following the accused and the deceased asked PW6 to help h im because the accused w as mad. This man's n a me w as Molato. At the time Molato w as saying accused w as m a d, people from the village w e re coining. They used, a rope belonging to PW6 to fasten the h a n ds of accused. Accused w as peaceful a nd relaxed just before a nd after his h a n ds w e re fastened. T he accused's knife w as taken from. him. Accused said he did not k n ow w hy he killed deceased. He looked n o r m al w h en he answered these questions. He seemed not to k n ow w hy he h ad killed the deceased. While accused w as on horseback he w as m a k i ng a noise. He said he h ad s o b b ed a w o m an w ho stopped h im from going h o m e. It did not m a ke sense to P W6 for the accused to stab a m an w h en he claimed he h ad stabbed a w o m a n. After this accused got d o wn from the horse a nd h a n d ed over the knife voluntarily. Accused did not react in a ny w ay w h en his h a n ds w e re tied up. T he people tied h im up because they thought he might r un away. T he c r o wn then called Molato Phatla P W 7. Duly s w o rn P W7 stated that he is related to the deceased although they did not live in the s a me village. On the material day they got to the family w h e re there w as going to be a funeral early. They decided to pass on to the place of accused's grandmother PW3 to see accused's daughter a nd that of his cousin. They found the accused's grandmother not at h o me as she h ad gone to w h e re a m o u r n i ng cloth w as being removed. PW7 a nd the accused got there a nd found the accused's grandmother PW3 there. The accused's grandmother PW3 complained to the accused that people h ad killed her daughter (meaning accused's m o t h e r ). Accused said no one could he blamed for the death of his mother. His m o t h er fell off a cliff clue to drunkenness. Accused's m o t h er h ad died six m o n t hs before that day. P W7 continued his evidence a nd said they w e re given a meal. U n a s k ed P W 3, the accused's grandmother brought porridge a nd gave it to the accused. Accused drank it but PW7 refused to share it with accused. P W7 says he did so because he w as suspicious a nd h ad heard that she w as a witch. In the view of P W7 she might bewitcher her grandson unintentionally. P W7 says he did not m e n t i on this fear to the accused. They then w e nt to the funeral. After they h ad been given a m e al P W7 s aw accused removing his blanket a nd shirt. W h en PW7 stopped him, accused said he w as going to b uy sweets for the child but w e nt to a place w h e re there w as no shop. P W7 stopped accused. T h en he reported to P W5 (the brother of accused) that accused w as giving h im problems. He h ad never seen accused in that condition. Accused seemed to be m a d. P W5 said they should go h o m e. P W7 says on their w ay h o m e, they m et the deceased. He w a r n ed deceased of the accused's condition a nd that accused might assault t h em or r un away. Deceased offered accused his horse. They walked a long distance but at Lekhalong, accused dismounted a nd said they should go back, he w o u ld like to sleep at his grandmother's place as it w as late. Deceased took his horse a nd left t h em arguing. Eventually accused w as persuaded to continue the journey h o m e. Accused then r an a nd caught up with the deceased a nd got on to the horse of the deceased. They w e re going with deceased a nd accused h ad given the deceased his hat a nd stick. P W7 w as following at a distance a nd the deceased a nd accused w e re sometimes out of view as the road h as u ps a nd d o w n s. At s o me stage, w h en he c a me into view, he s aw deceased fall d o wn a nd roll d o wn the road while accused w as still on horseback. P W7 ran towards t h em a nd heard a w o m an say "whose child is this w ho w a n ts to kill us?". P W7 w e nt to the deceased w ho could not talk a nd w as on the point of death. P W7 took 3 stones a nd w e nt towards the accused. Accused said he h ad stabbed a w o m an w ho w as stopping h im from going h o m e. P W7 shouted to P W6 to call people a nd bring a rope. People c a me a nd accused r e m o v ed his blanket, got d o wn the horse a nd threw a w ay the bloody knife. People c a me a nd asked accused w h at h ad happened, but accused said he did not k n ow h ow it happened. PW5 (the brother of deceased) w as sent for. T h ey guarded the corpse a nd the police c a me the following day. Accused h ad said he w as dizzy a nd could not see well s o me time after drinking the sour porridge. Accused a nd deceased w e re friendly. Accused's h a n ds w e re tied as a precaution as he h ad killed a person. At the e nd of the C r o wn case, the accused gave s w o rn evidence. He stated that he h as a wife a nd five surviving children a nd that he is not in full time employment. He survives by doing o dd jobs here a nd there. On the day that is the subject matter of these proceedings, he w e nt to Phatšoe with PW7 Molato Phatla. T he purpose w as to attend a funeral. As it w as early he w e nt to the h o me of his g r a n d m o t h er P W 3. Accused's daughter lived with PW3 at that time. PW3 w as not at h o m e. He f o u nd her at the h o me of a family that w as r e m o v i ng a m o u r n i ng cloth. Accused's grandmother P W3 on seeing the accused cried a nd said people of the village w e re accusing her of witchcraft. Accused asked for sour porridge from her after they h ad eaten m e at a nd mealie pap. W h en accused h ad partaken of the sour porridge he took a very small quantity of beer from a small container. After that he hurried to the funeral he h ad c o me for. On the w ay to the funeral accused told P W7 that he b ad a head- ache. They w e nt to the cemetery a nd the h o me of the bereaved. After this accused does not r e m e m b er anything. W h en he again b e c a me a w a re of his surroundings his h a n ds w e re fastened with a rope. T he deceased w as nearby dead. He w as asked w hy he h ad killed the deceased. He could not explain. He w as subsequently h a n d ed to the police. He h ad a knife in his possession for purpose of carving meat. Accused h ad never h ad a ny sign of m a d n e ss before then. He h as not h ad a ny attack of m a d n e ss since that day. Accused states he m u st have been m ad to have killed the deceased with w h om they h ad never quarrelled. They h ad always h ad friendly relations with the deceased. T he knife that w as exhibited in court as having b e en used by h im to kill deceased w as his. Accused later instructed his uncle to fetch his daughter from his grandmother F W 3. Accused says PW3 h ad cried w h en he s aw h im a nd asked h im if he w as going to take a w ay his daughter. It w as then that she added that people called her a witch. Accused b l a m ed the sour porridge for his misfortune. Before this he did not believe his grandmother PW3 w as a witch. I ordered the psychiatrist to be supplied with the preparatory examination record, a transcript of the evidence of the accused a nd the report he h ad m a de about the accused. I also ordered that the psychiatrist be subpoenaed to c o me a nd give evidence. Dr. S. Shaikah gave his s w o rn testimony after stating his qualification. These included Bachelor of medicine a nd surgery a nd a diploma in psychological medicine. Dr. Shaikah h ad practised as a psychiatrist since 1 9 69 a nd h ad b e en w o r k i ng in Lesotho since 1 9 9 2. In his report dated 11th D e c e m b e r, 1 9 9 7, he h ad stated that, at that time the accused s h o w ed no signs of m e n t al illness a nd that he is fit to stand trial. Dr. Shaikah h ad expressed a desire to do further w o rk on the accused. D u r i ng his examination on the 11th D e c e m b e r, 1 9 9 7, D r. Shaikah h ad m a de the following f i n d i ng about the accused:- " He w as co-operative during the interview. No signs of restlessness, agitation or p s y c h o m o t or retardation w e re observed. His affect w as adequate a nd congruent. No formal thought or perceptual disorder w e re elicitable. His attention s p an a nd concentration are within n o r m al limits. Immediate a nd recent m e m o ry are intact. He h as circumscribed loss of m e m o ry of alleged incident in w h i ch he stabbed his distant relative, M r. Lefu. He could describe details up to burial a nd journey b a ck to deceased house. He felt heat in the b o dy a nd then b e c a me confused a nd h as no recollection of w h at h a p p e n e d. He b e c a me a w a re of himself after a few h o u rs a nd f o u nd himself in police custody. He is oriented as to time, place a nd person." Dr. Shaikah h a n d ed in his medical report. D u r i ng his s w o rn testimony Dr. Shaikah stated that after reading the preparatory examination record a nd the accused testimony he believes the accused suBered possibly f r om psychogenic a m n e s ia at the time he killed the deceased. This w as of short duration. Dr. Shaikah stated that if the accused h ad b e en brought for examination immediately after the incident, blood s a m p l es a nd other data w o u ld h a ve b e en collected to m a ke his diagnosis m o re certain. W h at he ventures as his opinion to the court is to h im the best possible diagnosis he c an m a ke u n d er the circumstances. Dr. Shaikah said he w o u ld like to perform an abreaction test on the accused. This is a f o rm of hypnosis induced by special drugs introduced in accused's system intravenously. This lowers his conscious resistance a nd m i g ht facilitate the recall of forgotten events or lost m e m o r y. D r. S h a i k ah quoted from the following from Synopsis of Psychiatry by H. Kaplan and B. Sadock about accused's condition:- " Amnesia usually terminates very abruptly and recovery is generally complete with few recurrences." Dr. Shatkah concluded his evidence by saying with the constraints under which he was operating, the balance of probabilities favours the diagnosis of psychogenic amnesia. Dr. Shaikah was questioned about people's belief in witchcraft. He said science discards witchcraft as a fact. Nevertheless this superstition is everywhere and affects the lives of those who believe In it strongly. When people cannot rationalise an event they resort to belief in the supernatural to explain away that event. The witnesses that gave evidence before me were in general satisfactory. The only witness whose evidence was biased was that of PW7. His evidence was channelled towards proving that the accused had been bewitched by accused's grandmother PW3. PW7 tried to put accused's grandmother PW3 in the worst possible light. Fortunately the evidence of other witnesses such as PW2 shows PW7 was wrong. PW7 put across to the villagers his witchcraft theory. The result of this was that villagers became so hostile to the accused's grandmother PW3 that they almost assaulted her. Although PW7 was mistaken, I realise / he genuinely believed that the accused's g r a n d m o t h er w as a witch. People such as PW7 are a danger to society, indeed P W7 even subsequently influenced the accused to believe his o wn g r a n d m o t h er w as a witch. During accused's state of confusion, accused (lid not believe his g r a n d m o t h er w as a witch. Otherwise accused w o u ld not have d e m a n d ed that they should return to the h o me of his grandmother to sleep there. All evidence including that of P W 5, the brother of the deceased s h o ws that accused w as alleged to give problems even before he left for his h o me after the funeral. Accused's m i nd b e c a me disturbed a nd deranged all of a sudden. T he deceased helped the accused a nd p ut accused on his o wn horse a nd walked h o me on foot next to the accused. On the w ay for no apparent reason accused decided to stab a w o m an he did not k n ow with a knife. Unfortunately accused stabbed the deceased while accused w as still riding the horse of the deceased. Accused says he m u st h a ve b e en m ad a nd everybody w ho gave evidence of his condition says he w as m ad at the time. It is by no m e a ns the first time the court is faced with a case of temporary insanity. In the case of Rex v Moseli 1 9 77 LLR 2 26 this court w as faced with a case of mental disturbance of a t e m p o r a ry nature a nd w h i ch w as not recurrent. Dr. Shaikah says the accused's condition of psychogenic a m e n s ia w as t e m p o r a ry a nd not likely to be recurrent, although he cannot be absolutely sure of his diagnosis. In the case of Rex v Moseli at page 8 41 Cotran CJ s u m m a r i s ed the findings of the psychiatrist as follows:- " C o m b i n ed w i th the alcohol the accused c o n s u m e d, it p r o d u c ed loss of awareness a nd contact w i th his surroundings, a nd a mental Illness w h i ch he described as "psychosis" of toxic origin developed. T he psychosis h ad hallucinatory, paranoid, confusional a nd schiozophrenic features. He w as of opinion that during this period the accused suffered f r om a m e n t al disorder a m o u n t i ng to temporary acute insanity." In this case alcoholic or hallocenegic or intoxicating drugs are not a feature. There is no evidence of acute stress or fatigue but nevertheless Dr. Shaikah finds the only diagnosis possible as psychogenic amnesia. In the case of R v Tsukulu M a k a ba 1 9 77 LLR 2 29 there w as stress caused by grief following u p on the death of the wife of the accused. For no apparent reason accused developed a belief that a poor old w o m an w as the witch w ho h ad caused the death of his wife. Accused in a s u d d en unexpected bout of temporary insanity killed that poor w o m a n. A nd from that point accused's insanity w as g o ne a nd he b e c a me n o r m al again. Dr. Ntsekhe stated that the t e rm insanity is in that case a layman's description not a medical or psychiatric one. The onus of proving insanity to any degree is on the accused on a balance of probabilities once he is fit to plead. In this case the accused says he must have been mad when he met the misfortune of killing the deceased. Evidence of Crown witnesses support him, a fact Mr. Lenono concedes. I can only associate myself with what Mofokeng J said in R Tsukulu Makaba 1977 LLB at page 234 to the effect that: The findings and conclusions of the psychiatrist are fully borne out by the evidence before me. Without any hesitation, therefore I have come to the conclusion that the accused was insane at the time he committed the offence with which he is charged and was not responsible, in law, for his action at the time the act was done." Mofokeng J at page 232 of R v Tsukulu Makaba had already referred to Dr. V. R. Ntsekhe's finding to the effect that "in his opinion the accused was temporarily insane at the time of the alleged offence". I can only say in passing that there was no witchcraft in the sour porridge at all. I do not believe PW3 could bewitch her own grandchild. Accused did not believe his grandmother was a witch during his insanity. Otherwise he would not have wanted to go back home to go and sleep there. PW7 Molato Phatla influenced all people including the accused that the sour porridge he drank was bewitched. This is not so, but accusations of witchcraft are easy to make and hard to refute. It is usually innocent old women who are falsely and unjustly accused of witchcraft. This evil ought to cease because the innocent suffer, but / superstition is unfortunately hard to eradicate. People who hold these beliefs of witchcraft are genuine in their beliefs but mistaken. It remains for me to determine the accused's fate. In Bex v Tsitso Matšaba CRI/T/18/89 Lehohla J did what Cotran CJ and Mofokeng J did in the cases of Rex v Moseli and Rex v Tsukulu Makara to which I have referred. In all these cases the accused had been found to have been temporarily insane. I therefore in terms of Section 172(3) of The Criminal Procedure and Evidence Act 1981 return a special verdict and find that:- The accused is guilty of unlawfully killing the deceased, but was insane at the time he did the act. Therefore the accused shall be kept in custody in some prison pending the signification of the King's pleasure. My assessors agree. This verdict does make it possible for the psychiatrist to make further investigations and give the accused appropriate medical treatment if it is called for. For the Crown For accused : Mr. A. M. Lenono : Mr. Nchela W. C. M. M A Q U TU J U D GE