R v Mosiuoa (CRI/T 38 of 99) [2000] LSCA 137 (15 September 2000)

CRI/T/38/99 IN T HE HIGH C O U RT OF L E S O T HO In the matter b e t w e e n: R EX v T S E PO M O S I U OA J U D G M E NT Delivered by the Honourable Mr Justice W CM Maqutu on the 15th d ay of September 2 0 00 In this case accused is charged with the crime of m u r d e r: In that u p on or about the 26th d ay of S e p t e m b e r, 1 9 95 a nd at or near M A P U T S OE in the district of L E R I BE the said accused, did unlawfully a nd intentionally kill S E Q O B E LA S I M ON M O H A L E. A c c u s ed pleaded not guilty. T he C r o wn led the viva voce evidence of three children of b e t w e en 14 and 18 years, all of w h om gave evidence on oath. T he medical evidence w as accepted by consent. T he preparatory examination depositions of the investigating officer L a n ce Sergeant M o p e li a nd that of the identifying witness M o l o mo M o h a le w ho identified the deceased's b o dy before the post m o r t em w e re admitted a nd read into the record. T he accused g a ve s w o rn evidence in his o wn defence. T he C r o wn led the evidence of Pontsa R a m a r ou ( P W 1) w ho s h o w ed that at d u sk they w e re singing at the forecourt outside the r ow of r o o ms in w h i ch a c c u s ed h ad rented premises. D e c e a s ed (the late S e q o b e la M o h a l e) w as singing with t h e m. T he w o r ds of the s o ng were:- "Litampi tsa ntate M o h a le ke tseo, chesa m o r o s o r o s o" translated it m e a ns "there c o m es the little children of M o h a l e, b u rn or eliminate all cheating" or w o r ds to that effect. F r om the w o r d i ng of the song, it is clear that they m u st h a ve a d m i r ed deceased or he m u st h a ve taught t h em that song in his o wn praise. P W2 M a m e l lo Jane says w h en they s aw the deceased they started singing that song. P W3 ' N e h e ng M a k h e le actually says that s o n g, w h i ch they sang with deceased, w as his m e t h od of playing with t h e m. This portion of the C r o wn case is undisputed. W h i le about ten children w e re singing with deceased, accused accordingly to P W1 a nd 3 c a me out of Tsuinyane's premises, told the children to disperse. He e v en insulted the children by including their m o t h e rs private parts in the abusive language he used. P W1 a nd P W2 agree on this. P W3 agrees with t h em but d o es not go into details about the nature of the insult. All witnesses i.e. P W 1, P W 2, P W3 a nd the accused himself, agree on the fact that the witnesses a nd the deceased w e re singing aloud. T h e re is no dispute that not all the children (except t w o) lived in the site in w h i ch the accused lived. D e c e a s ed lived in the s a me site although he did not live in the block with lines of r o om in w h i ch accused lived. P W2 a nd P W3 say the singing continued although it w as no m o re very loud. P W1 w as not asked to clarify this issue. P W 1, P W2 a nd P W3 d e ny they w e re causing a ny nuisance. P W2 says they continued singing for 30 minutes while P W2 said they continued singing for only t wo minutes. H o w e v er w h en accused rushed into the house they dispersed because they all agree that s o m e o ne said accused w as going to get a s j a m b o k. T h ey dispersed although s o me did so m o re slowly than others. P W1 a nd P W2 say accused c a me out f r om his premises carrying an S LR rifle about 1½ yards long. T h ey ran a w a y. P W2 claims he s aw deceased also running but unable to get far because he w as ill. I do not believe P W2 s aw anything after seeing the accused c o m i ng out carrying a rifle as she ran for her life. P W1 says deceased did not run a w a y. A c c u s ed (according to P W 1) shot deceased w h e re he h ad b e en standing. A c c u s ed said in his evidence that he s aw deceased c o m i ng towards h im a nd he shot deceased. A l t h o u gh accused says he did not k n ow w h e re deceased w as going he thought deceased w as c o m i ng towards h im because even w h en accused had got out of the deceased's w a y, deceased still c a me towards h i m. All witnesses including the accused say he w as very drunk at the time. A c c u s ed says his m e m o ry is not very g o od about w h at happened. He does not even r e m e m b er using abusive language. He just heard a lot of singing, he could not distinguish whether they w e re adult voices because he w as drunk. A c c u s ed could not say w hy he took the rifle (and what threat he perceived) that m a de h im take that rifle for his defence. He lied and said a firearm which could hit a target at t wo kilometres had a range of only a little over half a kilometre. P W1 w ho says he s aw accused shoot deceased says she s aw h im through a partially closed door, w h e re she w as hiding. She w as not challenged or shaken on this point. I do not believe the accused is telling the truth w h en he says deceased w as c o m i ng towards him. I believe P W1 w h en he says he shot deceased w ho w as just standing w h e re he had b e en during the singing. I also accept w h at P W 1, 2 and 3 said namely that deceased d r ew the attention of all people to the effect that he h ad b e en shot for no reason at all. Deceased before he died said G od should receive his soul, as P W1 and P W2 testified. P W2 and P W3 only heard a g un report but did not see w h at happened to deceased. P W3 ran a w ay even before she s aw accused carrying a rifle. There is no doubt that accused w as irritated by the singing in w h i ch A... children were saying they belong to the deceased, who was singing with them. Accused went for his rifle when they continued singing. W h en he came out he shot deceased who was standing where he had been standing during the singing. Accused's mind was befuddled by drink. A person who has taken alcohol even if provoked can still be able to form the intention to kill. See Rex v Khotso Bothata 1978 L LR 427. At page 429 Cotran CJ dealing with a form of verbal provocation that occurred on a person who had taken alcohol immoderately said: "The words uttered by the deceased may be said to have been provocative, and to a person who had imbibed liquor more so, but I do not consider the two factors sufficient to reduce the crime to culpable homicide." It will be observed that accused could still remember a lot of what he did. He is only shocked by his lack of logic. We do not consider voluntarily induced intoxication as an excuse in the commission of any crime. If a person was temporarily insane because of voluntary intake of intoxicating substances, the court returns a special verdict of guilty but insane. See Section 2(3) of the Criminal Liability of Intoxicated Persons Proclamation 60 of 1938 read along with Section 17(2) of the Criminal Procedure and Evidence Act of 1981. This issue was dealt with by the Court of Appeal in Tsitso Matsaba v Rex 1991-1996 L LR 615. It is clear as I have already stated that accused remembers a lot of what he did although he was drunk. Consequently he does not allege (nor is there evidence showing) temporary insanity in the sense of being dead drunk. Therefore a c c u s ed is liable for his actions. B ut then, that is not e n o u g h. A c c u s ed is c h a r g ed with a c r i me that involves the presence of a special intent. This the C r o wn has to p r o ve b e y o nd a reasonable doubt. As W i l l i a m s on JA said in S v Mini 1 9 6 3 ( 3) SA 1 88 at 1 9 2: "In order to h o ld that an accused on a c h a r ge of m u r d e r, h ad the requisite mens rea...the court m u st find as a subjective fact, that the a c c u s ed intended to kill the deceased: T h is fact falls to be established b e y o nd reasonable doubt. T he finding (like a ny other fact) m ay be o ne b a s ed on inferences f r om established facts a nd circumstances." In the case of Mini there w as evidence that a c c u s ed w as not sober- he w as d r u nk to s o me d e g r e e. J u d g es w ho w e re in the majority f o u nd a c c u s ed guilty of culpable h o m i c i d e. W h i le the minority of t wo out of five j u d g es said he w as guilty of m u r d e r. W h at this court h as to decide is w h at w as in the m i nd of this particular accused, in the condition he w as in, not w h at could be expected of a reasonable m a n. It is difficult to delve into a person's m i n d. If a p e r s on takes a d a n g e r o us w e a p on a nd shoots another on the chest there is a strong inference that he subjectively intends to kill. H o w e v e r, this m u st be the only inference that the A... court c an m a k e. This h as to be s o, b e c a u se the C r o wn is relying solely on circumstantial evidence. In S v Sigwahla 1967(4) SA 5 6 6, it w as s h o wn the o n us to p r o ve subjective intent is on the C r o wn in s u ch circumstances. T he C r o wn c o n c e d ed that with a m i nd s o a k ed in alcohol a nd d r u n k e n n e s s, it could not say it has p r o v ed subjective intention to kill b e y o nd reasonable d o u b t. I h a ve no option but to give the accused the benefit of doubt on mens rea to kill. I therefore find the accused guilty of culpable h o m i c i d e, but not m u r d e r. Stand up accused. Y ou are guilty of culpable h o m i c i d e. My Assessors agree. WCM MAQUTU J U D GE For the Crown For the accused : Mr M Mathafeng : Mr T Semoko /....