R v Motseki (CRI/ 45 of 92) [1996] LSHC 30 (19 February 1996)

CRI/45/92 IN THE HIGH COURT OF LESOTHO In the matter between: SEBOEANE MOTSEKI V R EX JUDGEMENT Delivered by the Honourable Mrs. Justice K. J. Guni on the 19th day of February 1996 In the Subordinate Court sitting in the district of Leribe, this Appellant was charged and convicted of failing to provide the person to be maintained with adequate food, clothing and medical Aid in contravention of Section 3 of Proclamation No 60/59 as Amended by ORDER No 29 of 1971 (The Deserted Wives and Children (Amendment) Order 1971. The Appellant was initially charged with failing to provide adequate maintenance for his wife and child. At the end of the trial the learned magistrate absolved the Appellant from liability to maintain his wife. He was accordingly acquitted on a charge of failing to provide adequate maintenance for his wife. He was found guilty of failing to provide adequate maintenance, for his son. The appeal is against this conviction. The grounds for this appeal are as follows:- 1. The learned magistrate misdirected himself in holding that appellant is the father of the child. 2. The learned magistrate misdirected himself in holding that the question of marriage and paternity were res judicata. 3. The learned magistrate erred in making an order of absolution from the instance in respect of the marriage instead of acquitting the appellant in respect of the maintenance of the mother (ALSO the order of absolution is foreign to criminal law). 4. The judgement of the learned magistrate is against the weight of the evidence and is bad law. The first ground is that the learned Magistrate misdirected himself in holding that Appellant is the father of the child. Evidence led at the trial shows that the parties (Appellant and Complainant) eloped. The negotiations that followed after that elopement were directed towards the parties' eventual marriage. To the parents of the mother of this minor son the Appellant presented himself as a son-in- law. Although the marriage cattle had not been paid the agreement that the parties are husband and wife had been reached. On more than two occasions this Appellant admitted paternity of this son. Appellant according to the evidence of PW 3, in the company of his mother, he approached PW 3 who is the father of the mother of the minor child who is to be maintained. It is the evidence of PW 3 that the matter of marriage between the Appellant and the minor child's mother was entered into as a result of his admission of his paternity. The two families apparently according to PW 3 agreed that the Appellant and the mother of he minor child should be married. This evidence of PW 3 is supported in material respects by that of PW 4 who as the member of the family of the Appellant's wife, was involved in the resolution of the problem of elopement and consequential pregnancy and birth of this minor child. To the parents and relatives of the mother of this minor child the Appellant never ever denied paternity of this minor child. According to the evidence of PW 4 it was the Appellant who approached the in-laws and notified them that he had taken the wife to the hospital to deliver the said child. The overall picture built by the evidence led before the court acquo is to the effect that this Appellant regarded himself as the husband of the mother of this minor. The same feeling of the existence of marriage between the parties is expressed by the mother of the said minor. The question of marriage was not decided by the court acquo on the grounds that it has no jurisdiction. There is no appeal against that decision. Evidence has established that there had been recognition and acceptance by this Appellant that he is the person responsible for the maintenance of the minor child whom he supported until they separated with his mother. It was argued on behalf of this Appellant by Advocate Teele that the mother of this minor child, when asked when did she marry the Appellant, her answer was that she married the Appellant on 17th March, 1989. It is further suggested that this child was not conceived during the period of marriage of the parties. There was no competent expert evidence to show if this minor was born pre-maturely or whether it was full term pregnancy of a human being which should be nine months. In her evidence in chief the mother of the minor child indicated that the minor child was born on 13th July 1989. It is Advocate Teele's contention that if this child was born on 13th July 1989, four months after the date of marriage of the parents, the Appellant could not possibly be the father more especially because the mother of the minor child claimed that she was pregnant for nine months. Although Advocate Teele described her as the best person to know, she still is no expert in that matter. There is no evidence that she was equipped with special expertise rather than common notions of mankind. In the absence of expert evidence by special gynaecologist, there is no way the court can accept as impossible that this minor child is the son of this Appellant - MITCHELL v MITCHELL and Another 1963 (2) SA Page 505 at 507. On the second ground of Appeal the learned Magistrate is said to have misdirected himself in holding the question of marriage and paternity were res judicata. There was evidence produced, in that trial court, that the Appellant and his father-in-law had appeared in the first instance before a local court where the Appellant was sued for six herd of cattle for elopement with the daughter of complainant who in this case is the mother of his minor son. The judgment was entered against the Appellant by the local court sitting at Maputsoe. The Appellant appealed against the judgment to Tsifa-li-Mali Central Court. The appeal was dismissed. Examination of those judgments indicated that the court found that the Appellant had eloped with the daughter of the complainant. Appellant was found liable to pay as claimed six herd of cattle at M500-00 each to the complainant. The question of whether or not that elopement resulted in /... consummation of marriage was nevertheless not decided by the local court. The central court at Tsifa-li-Mali when dismissing the appeal did not enter into the matter to make a determination on the merits whether or not there was marriage between the appellant and complainant's daughter. To this extend the question of marriage was not res judicata. On the question of paternity there was abandoned evidence that the minor child for whose maintenance the Appellant was held liable was conceived during the period when the Appellant and the mother of that minor child were having sexual relations. Whether or not this baby was born after the full term of human pregnancy was not determined by production of expert evidence. Where parties lived together as husband and wife there is a presumption though rebuttable, that children born of such parents are their children. The learned Magistrate cannot be faulted by finding that the minor child was the son of the Appellant who must therefore be held liable to provide adequate maintenance for him. Having found that the Appellant was failing in his duty the learned Magistrate was correct to find him guilty as charged in terms of Section 3 A of Proclamation 60/59 As Amended. This appeal must fail. K . J. GUNI JUDGE CRI/T/27/94 IN T HE H I GH C O U RT OF L E S O T HO In the matter of: R EX vs N K H A H LE M O T H O BI J U D G M E NT D e l i v e r ed by t he H o n. M r. Justice M L. L e h o h la on t he 4 th d ay of S e p t e m b e r, 1 9 96 I m u st first of all e x p r e ss my gratitude to the w i t n e ss Dr S h a f i u d d in S h a i kh w ho h as g i v en e v i d e n ce in this C o u r t. In brief he h as indicated that this is n ot the first t i me he h as a p p e a r ed before C o u rt to g i ve e v i d e n ce c o n c e r n i ng the a c c u s e d. He stated that he is a consultant specialist; that is a psychiatrist h o l d i ng an MB D e g r ee f r om G u j a r at University in India. He is also p o s s e s s ed of a t wo y e ar D i p l o ma in Psychological M e d i c i n e. All in all this entailed a total of s e v en y e a r s' training. He is presently stationed at M o h l o mi Hospital - a facility taking c a re of those suffering f r om the disease of the m i n d; a nd he d o es e x a m i n a t i on of out-patients at Q u e en Elizabeth II Hospital too. He h as h ad considerable practice e x a m i n i n g, by o r d er of C o u r t, mentally defective patients w ho a p p e a r ed b o th in the H i gh court a nd e v en o n ce in the C o u rt of A p p e a l. At the request of this C o u r t, the w i t n e ss w as a s k ed to e x a m i ne the a c c u s e d. He in his o wn w o r ds said he reassessed h im on the 2 3 rd a nd 2 4 th A u g u s t, 1996. Prior thereto he h ad furnished this C o u rt w i th reports d a t ed 5th O c t o b e r, 1 9 95 a nd 2 0 th D e c e m b e r, 1 9 9 5. He personally interviewed the a c c u s ed using services of an interpreter. T he interpreter w as a psychiatric nurse. He k e pt a record of the interview a nd p r e p a r ed a report. T he report w as h a n d ed in a nd m a r k ed Exhibit " C" d a t ed 8th A u g u s t, 1 9 96 a nd it b e a rs the witness's signature. T he w i t n e ss referred extensively during the c a u se of his e v i d e n ce to this report, it r e a ds as follows : " T h a t 's the M e d i c al R e p o r t. R EX vs N k h a h le M o t h o bi C R I / T / 2 7 / 94 1 referred to M e d i c al R e p o r ts on a b o ve a c c u s ed p e r s on on dates 5th O c t o b er a nd 2 0 th D e c e m b e r, 1 9 9 5. I reassessed h im on 2 3 rd a nd 2 4 th A u g u s t, 1996. D u r i ng the 2 interview, he w as irritable a nd later b e c a me a n g ry a nd did n ot c o - o p e r a te w e l l ". T he c o n c l u s i on the w i t n e ss c a me to is that there is no c h a n ge in the patient's m e n t al condition. T h is latter a s p e ct of the w i t n e s s 's s t a t e m e nt relates to the findings of the 5th O c t o b e r, a nd 2 0 th D e c e m b e r, 1 9 9 5. At this latest stage of the report d a t ed 2 8 . 0 8 . 9 6, the w i t n e ss h ad benefit of scientific m e t h od b a s ed on w h at is called "A rating scale for fitness to stand trial". T h is is w h at he a d m i n i s t e r ed a nd the w i t n e ss referred to p a ge 7 34 of this w o n d e r f ul w o r ks d a t ed J u ne 1 9 9 6. T he entire d o c u m e nt consists of hardly 5 p a g es a nd I h a ve a s k ed that the Registrar s h o u ld p h o t o c o py it a nd h a ve it i n c o r p o r a t ed into this J u d g m e n t. T he i m p o r t a nt portion w h i ch s h o u ld be i n c o r p o r a t ed consists of extracts starting f r om the p h r a se "Criteria for fitness to stand criminal trail" a nd e n ds w i th the p h r a se "(vi) t h ey c o u ld be u s ed in training other disciplines to evaluate friability". T he text is e n c o r p o r a t ed thus i m m e d i a t e ly b e l ow w h i le the p a m p h l et f r om w h i ch the extracts are m a de shall r e m a in on file for fuller reference a nd m o re c o m p l e te r e a d i ng : Criteria for fitness to stand criminal trial F. J. W. Calitz, P. H. J. J. van Rensburg, H. Oosthuizen, T. Verschoor Objective. To identify criteria whereby triability can be determined 4 Design. psychiatric interview. Questionnaire survey. The final rating was decided on the basis of a structured Setting. Oranje Hospital, Bloemfbntein. Participants. A total of 736 questionnaires was sent to 176 judges of the Supreme Court, 480 magistrates and 32 attorneys-general and state advocates in South Africa and Namibia, and 3 psychiatrists and 15 clinical psychologists working in forensic psychiatric units in South Africa. With the information from the completed questionnaires, rating criteria were compiled. The rating criteria were applied by means of a structured interview to 100 persons referred in terms of section 77(1) of the Criminal Procedure Act 51 of 1977. A multiprofessional psychiatric team was requested to evaluate the same 100 observandi independently. Results. A total of 298(40.5%) of the questionnaires were returned. From the data of the completed questionnaires, 19 legal items, 17 psychiatric items, 2 special laboratory tests and 2 psychosocial items were identified as the most important and clear diagnostic indications for the evaluation of triability. The similarity between the findings of the researchers and those of the multiprofessional psychiatric team was meaningful to 1% of significance. For the proper application of the criteria a cut-off point of 31 was determined. A score of 31 or higher therefore indicates that a patient is unfit to stand trial, while a score of less than 31 indicates triability. Conclusion. T he application of the proposed final rating criteria as a single method of rating is at the very least just as reliable as the multiprofessional team in evaluating fitness to stand trial. The proposed criteria, used as a single rating instrument, are cost-effective in terms of time and staff, avoid unnecessary hospitalisation and ensure that mentally ill accused will have a fair trial. S AFR Med J 1966: 86: 734-737. The law demands that, to receive a fair trial, an individual must possess sufficient mental capacity to comprehend (he nature and object of the proceedings and his own position in relation to those proceedings; he must also be able to advise counsel rationally in the preparation and implementation of his own defence. If he is unable to do one or more of these he is "incompetent to stand trial" and usually transferred as a stale patient. It has always been a problem to determine the triability of accused persons, mainly because of costly evaluation methods, cumbersone procedures, unnecessary hospitalisation and inadequate vague criteria. While (he final decision on competency is a legal one, (he courts often call upon psychiatrists and, in some cases, psychologists for an advisory opinion. In many jurisdictions, however, (he court has consistently failed to inform (he examining psyciatrist or psychologist what questions it wishes answered. Even if a specific request for an evaluation of competency to stand (rial is made, i( appears (hat the vast majority of psychiatrists and psychologists have no awareness of what legal test or criteria to apply. If (hey deal with the question a( all, many seem to feel that the accused must be free from any symptoms of mental illness before he is triable. Conclusion -5- The conclusion of this study is that the application of the proposed final rating criteria as a single method of rating is, at the very least, just as reliable as the multiprofessional team in evaluating whether someone is fit to stand trial. The proposed criteria, used as a single rating instrument for determining triability, have the following advantages, viz.: (i) they are cost-effective in terms of time, staff and finances; (ii) they avoid unnecessary hospitalisation: (iii) they could act as a screening method: (iv) they will prevent a mentally ill accused from inappropriately being declared a state patient: (v) they ensure that mentally ill accused will have a fair trial: and (vi) they could be used in training other disciplines to evaluate triability. The examiner indicated the accused as having scored 51. The break-off point in the scoring scale is 31. The witness made the Court to understand that at 31 - at score 31 an accused person is reckoned to be incapable of standing trial. It stands to reason then that at score 51 he is a lot much worse than at the break-off point. The witness conducted this test in an endeavour to determine whether the accused could stand trial. He relied on the rating scale published in South Africa by a team of Experts; (1) F. J. W. C A L I TZ DP. PHIL (2) P. H. JJ V AN R E N S B E RG MD (3) H. OOSTHUIZEN LLD (4) T. VERSCHOORLLD all of the University of O r a n ge F r ee State attached to the d e p a r t m e nt of Psychiatry a nd Criminal L aw relating to the subject "Criteria to u se to determine ability to stand a criminal trial". I fully e n d o r se the witness's v i ew that theirs is a valid a nd a c c e p t ed test. On the basis of the questionnaire a p p e a r i ng on this d o c u m e nt the C o u rt w as m a de to u n d e r s t a nd that the w o rk is divided into four sections: T he first is legal item the next is psychiatric item f o l l o w ed by special item a nd finally psycho-social item ranging f r om 0-3 in e a ch item. T he e x a m i n er w as reading, during the c o n d u ct of this e x a m i n a t i o n, these items to a nurse w ho in turn translated the s a me to the a c c u s ed a nd the a n s w e rs obtained w e re rated in t e r ms of d e g r ee of i m p a i r m e n t. T he fact that f r om the w ay the thing is g r a d u a t ed or calibrated the patient scored 51 w h en 31 itself put h im in rather d im light satisfies me that he definitely couldn't stand trial. T he witness testified that the patient consistently in all occasions that he w as interviewed a nd treated c o m p l a i n ed of insects in his h e ad m a k i ng f u n ny s o u n d s. T he rating scale test w as administered first on 2 4 th A u g u s t, 1 9 96 a nd the a c c u s ed or the patient w as not on m e d i c a t i on as he is still not on a ny today. T h us he w as fully conscious a nd well orientated in t e r ms of time a nd surroundings. It is the opinion of the witness that it is highly unlikely that the a c c u s ed or the patient c o u ld h a ve b e en g i v en a ny d r u gs b e f o re the e x a m i n a t i on the w i t n e ss administered. T he c o n c l u s i o ns r e a c h ed a nd the opinion f o r m ed by the w i t n e ss w e re that the a c c u s ed is suffering f r om delusional (persistent p e r s e c u t o ry t y pe o f) disorder. I n d e ed I also b e ar w i t n e ss to the fact that a c c u s ed actually c h a r g ed me w i th persecuting h im e v en t h o u gh I h ad a l w a ys g o ne out of my w ay to be particularly gentle w i th h im b e a r i ng in m i nd that I h ad benefit of p e r u s i ng the preparatory r e c o rd b e f o re m e e t i ng h im in C o u r t. T he w i t n e ss w e nt further to e x p r e ss his w i sh to a dd s o m e t h i ng on w h at he h ad stated b e f o re C o u r t; a nd w h at he told the C o u rt I f o u nd v e ry spell-binding a nd v e ry revealing indeed. He said that after the 2 4 th after e x a m i n i ng the a c c u s ed he a d m i n i s t e r ed w h at is called abreaction treatment t h r o u gh the veins of the a c c u s e d. In this p r o c e ss the patient is m a de d r o w sy b ut n ot fully asleep. T he w h o le point for d o i ng this w as to e n s u re that if he h ad c o n s c i o u s ly tried to e v a de a n s w e r i ng questions or w as c a g ey a b o ut telling the e x a m i n er a n y t h i ng or w as trying to s u p p r e ss his k n o w l e d ge of things, this w ay his resistance to the questions is r e m o v ed a nd his resistance gets l o o s e n ed u p. W h i le the patient w as in this state the e x a m i n er a s k ed h im to r e m e m b er w h at o c c u r r ed on the 2 2 nd D e c e m b e r, 1991; that is the d ay of the events. T he patient started at the s a me point that he h ad indicated on p r e v i o us o c c a s i o n s, viz, that he d e p a r t ed f r om the p l a ce of w o rk after slaughtering a s h e ep a nd left for h o m e. He h ad s o me f ew drinks. A friend h ad a s k ed to take h im h o me but he declined. W h en he r e a c h ed h o me he s aw p e o p le w ho w e re e n j o y i ng s o me drinks. T h ey offered h im s o me b ut he declined to take a n y. T h en they started taunting h im that he 7 h ad h ad so m u ch drink that he couldn't t a ke a ny m o r e. He also, a c c o r d i ng to the w i t n e ss r e m e m b e rs talking to a l a dy related to the d e c e a s ed a nd he left for h o m e. W h at the w i t n e ss f o u nd significant w as that b e f o re the abreaction treatment the patient w as n ot able to r e m e m b er a ny of the things w h i ch he n ow r e m e m b e r ed or referred to w h i le u n d er the i n d u c ed state of d r o w s i n e s s. He couldn't r e m e m b er these things w h i le he w as in a c o n s c i o us state. I underline this a s p e ct of the m a t t er as really revealing i n d e ed a nd p ay particular h e ed to the i m p o r t a n ce of the p a m p h l et that I referred to b e f o r e. T he w i t n e ss w e nt further to indicate a nd e m p h a s i se that t he patient couldn't recollect a n y t h i ng related to the o f f e n ce a nd that he w as c o m p l e t e ly b l a nk r e g a r d i ng the offence. T he w i t n e ss further, in a general w a y, stated that - in v i ew of the past m e d i c al history of the patient a nd especially his version of h a v i ng h ad drink - he w as alerted to the fact that s o me p e o p le in this sort of condition i.e. p e o p le w ho t a ke drink for a l o ng t i m e, go into a b l a c k o u t, b ut others r e c o v er f r om it, w h i le in the c a se of the a c c u s ed it a p p e a r ed that he w as c o m p l e t e ly b l a n k. F or p u r p o s es of the ailing I am g o i ng to m a ke I am i n d e ed p l e a s ed to learn that the a c c u s e d, if he u n d e r g o es m e d i c a t i o n, c an r e c o v er a nd that d u r i ng treatment he w o u l d n 't be e x p o s ed to a ny of the factors w h i ch precipitated his a b n o r m al b e h a v i o u r. T h a t 's as far as the e v i d e n ce that I h a ve h e a rd g o e s. In the a d d r e s s e s, I h a ve b e en a s k ed by the Director of P u b l ic P r o s e c u t i o ns - a nd C o u n s el for the a c c u s ed sharing the s a me v i ew - that the condition of the a c c u s ed falls w i t h in the a m b it of S e c t i on 166 r e ad w i th Section 17. s. 166(i) r e a ds as f o l l o w s: "If, when the accused is called upon to plead to a charge, it appears to be uncertain for any reason whether he is capable of understanding the proceedings at the trial, so as to be able to make a proper defence, the procedure prescribed by s.17 shall be observed". s.172 s u b s e c t i on 2 r e a ds as f o l l o ws : "If the Court finds the person charged with an offence insane or mentally incapacitated pursuant to subsection 1. the judicial officer presiding at the trial shall record such verdict or finding, and shall issue an order committing such person to some prison pending the signification of the Kings Pleasure". In brief this is w h at in fact I intend d o i n g. I a c c o r d i n g ly m a ke r e c o rd of the fact that the a c c u s ed at the t i me of c o m m i s s i on of the o f f e n ce w as m e n t a l ly incapacitated to the extent that he w o u ld n ot be able to u n d e r s t a nd the p r o c e e d i ng a nd in turn m a ke a p r o p er d e f e n c e. I o r d er therefore that he be c o m m i t t ed to s o me prison p e n d i ng the signification of the K i n g 's Pleasure. It s h o u ld be plain here that in fact e v en in the w o r ds of the C o u rt of A p p e al in Ts'itso M a t s ' a ba Vs R ex C. of A. ( C R I) 5/90 (unreported) this is n ot a conviction, the a c c u s ed is n ot b e i ng said to be guilty of anything. T he w o r ds in that case by K o t z e' J. A. c o n c u r r ed in by B r o w de J. A. a nd L e on J. A. at p a g es 4 a nd 5 are - " T h us expounded, the concluding portion of the special verdict reads : 'but (he) w as mentally disordered or defective so as not to be responsible according to law for the act or omission charged at the time w h en he did the act or m a ke the omission' ". I m ay only a dd for e m p h a s is that the a c c u s ed w as n ot m a de to p l e ad before the a b o ve c o n c l u s i on w as reached. J U D GE 4th S e p t e m b e r, 1996 For C r o wn : M r. Mdhluli F or Defence: M r. Lesuthu 10