R v Peete and Another (CRI/T 33 of 92) [2000] LSCA 11 (27 March 2000)

1 CRI/T/33/92 IN T HE H I GH C O U RT OF L E S O T HO In the matter of: R EX vs KATISO PEETE 1st Accused S E H L O O HO K O E K OE 2nd Accused J U D G M E NT Delivered by the H o n. Mr Justice M . L. Lehohla on the 27th day of March. 2000 This is a very old matter. E v en if it w e re to start on the first d ay it w as set d o wn for on 22-11-99 it could not be pardonable that it c a me to be heard m o re than ten years after the incident that gave rise to the accused being charged. T he hearing failed to start on the a b o ve date because of absence of witnesses in respect of w h om there w as not even proof that a ny h ad been served with subpoenae. T h e r e u p on the matter w as postponed to 7th M a r c h, 2 0 0 0. On that d ay n o ne of the accused w ho w e re on bail pitched on time in Court. O ne of t h em arrived t wo hours later than B e n ch Warrants for their arrest h ad been issued and explained that he had g o ne to the old H i gh Court premises and didn't k n ow that the seat of the Court had shifted to the n ew grounds. T he warrant against h im w as therefore cancelled. T he other accused arrived under police escort the following day stating that though he w as ready and willing to c o me to Court he h ad no m o n ey to facilitate his conveyance from his h o me to Court. T h e r e u p on his Bail w as suspended for the duration of this trial w h i ch started t wo w e e ks ago. T he accused are charged with murder; it being alleged that on or about 28th October, 1 9 89 and at or near L u m a - L u ma Ha Peete in the District of Berea the accused did o ne or the other, unlawfully and intentionally kill M o t s a m ai M o k o t j o. T he accused pleaded not guilty to the charge. A disconcerting offshoot of the delay in bringing this matter to trial is that the evidence of t wo C r o wn witnesses w ho h a ve since died i.e. P W2 and P W5 M o l u la Mitchell and Trooper S e b o ka respectively h ad to be admitted without benefit of being tested by m e a ns of Cross-examination. This w as d o ne in terms of Section 2 27 of our Criminal Procedure and Evidence A ct 7 of 1981. T he P o s t - M o r t em report of the Doctor w ho performed the post-mortem examination w as also admitted without being tested because that doctor is said to have completed his stint of service in Lesotho a nd left for his country of origin or is otherwise untraceable. T he exhibits allegedly used in the c o m b at b e t w e en the accused a nd the deceased are said to have b e en lost s o m e w h e re in the Subordinate Court T . Y. before they could reach the H i gh Court. Needless to say with the exception of o ne extraordinary witness of a m a z i ng mental clarity all other witnesses' recollection of events h ad understandably faded. I n e ed not emphasise w h at a distressing state of affairs this sort of thing a m o u n ts to. I w o u ld urge the authorities concerned in the administration of Justice to find an immediate r e m e dy to this dissatisfactory m a l a dy that can only, if allowed to prevail, result in the subverting of the administration of justice a nd disrepute of the judicial system in this territory. T he admitted Post-mortem examination report m a r k ed " A" indicates that the deceased's b o dy w as e x a m i n ed by Dr M u w a ri m o re than 24 hours after the alleged assault. T he doctor f o r m ed the opinion that death w as d ue to h e ad injury. T he post- m o r t em w as c o n d u c t ed on 01 -11 - 1 9 8 9, the b o dy h a v i ng b e en identified to the doctor by Malefetsane M o k o t jo ( P W 3) a nd M o n a re F o so ( P W 4 ). W i th regard to external appearances the doctor has catalogued: (1) multiple d e ep cuts on right wrist going through b o ne (2) multiple d e ep cuts on both ankles going through b o ne (3) multiple lacerations (4) skull fracture behind left ear a nd subdural h a e m a t o m a. T he evidence of P W1 'Matiisetso M a b o te narrates a simple tale that on the d ay in question i.e. 2 8 - 1 0 - 89 she h ad occasion to go to M a R e g i n a 's house. H er p u r p o se for going there w as to b o r r ow s o me yeast. M a R e g i na is a k n o wn brewer of beer for sale in the n e i g h b o u r h o o d. It w as after s un set w h en P W1 set for M a R e g i n a 's house. In there she f o u nd the late M o l u la P W2 at Preparatory Examination, o ne 'Maselepe a nd the deceased. T he trio w e re just seated a nd e n g a g ed in light conversation w h en P W1 c a me there. M a R e g i na w as h o w e v er absent. P W1 asked for yeast from 'Maselepe w ho w e nt to fetch it from the other house. It w as at this point that accused 2 entered the house in w h i ch the deceased, P W1 and M o l u la w e re seated. A c c u s ed 2, without uttering a w o rd and in response to no provocation whatsoever hurled abuse at the deceased imprecating a curse u p on the letter's mother's front passage. There and then and in the s a me instant he fetched the deceased a b l ow on the head with a quince stick. T he deceased w ho had been seated rose immediately and hit back at the deceased too and dealt h im a stunning b l ow w h i ch felled the latter to the ground. T he deceased remained standing and apparently watching over accused 2's next m o v e. A c c u s ed 2 rose and while the deceased's attention w as f o c u s ed on h im and a w ay from the d o o r w ay accused 1 w ho w as then acting h e a d m an or chief of the area b u d g ed in u n b e k n o wn to the deceased and dealt the deceased a stunning b l ow at the back of his head around the n e ck region w h e r e u p on the deceased fell face d o wn and never m a n a g ed to rise again. T he b l ow to the nape of the deceased's neck w as dealt by accused 1 with an iron-rod. T h en the t wo accused continued belabouring the deceased with the above- mentioned w e a p o ns while the deceased w as d o w n. During the process of belabouring the deceased thus accused 2 relieved himself of the quince stick w h i ch he had been using and instead equipped himself with a h o m e - m a de s w o rd supplied by accused 1 and continued chopping at the deceased's wrists and heels (described as ankles in the post-mortem report Exhibit A) It is P W 1 's evidence that this assault lasted about an hour. It w as during the course of this assault that accused 2, casting his m e n a c i ng glance at P W1 a nd M o l u la w ho h ad been standing stuck by the wall and frozen in fright hurled abuse at t h em a nd said "just as well y ou h a ve stuck by that wall, your mothers' vaginas'" A c c u s ed 1, according to P W 1, w h en he entered appeared to be in a fighting m o o d. He did nothing to intervene. He didn't reprimand accused 2 for swearing at P W1 and M o l u la by their mothers' private parts despite that he m u st h a ve heard w h en this w as uttered and seen to w h om it w as so uttered. Instead he continued belabouring the deceased with an iron rod on joints of both h a n ds a nd feet". W h en accused 2 uttered these abusive w o r ds he is reckoned to h a ve been barely an arm's length from accused 1. It is P W 1 's evidence that ' M a s e l e pe didn't m a ke her w ay b a ck into the hut w h e re the assaults w e re taking place. S he w as insistent that she doesn't take alcohol; further that it h ad b e en d a ys since M a R e g i n a 's supply of beer h ad dried out. S he v e h e m e n t ly denied that a n y b o dy w as drinking beer in that hut n or w as a ny being sold that evening. S he told the C o u rt that she a nd M o l u la m a n a g ed to escape f r om the hut leaving the t wo accused in there with deceased lying prostrate on the g r o u n d. S he a nd M o l u la separated immediately on c o m i ng outside w h e re they s aw a big n u m b er of b o ys gathered there by the d o or outside d o i ng nothing. B e f o re leaving the hut she said she h ad observed w o u n ds effected on the deceased's wrists a nd heels. P W1 learnt in the m o r n i ng that the deceased h ad died. P W1 denied that a c c u s ed 1's version that the deceased a nd a c c u s ed 2 w e re holding fighting positions at a ny stage after accused 2 h ad picked h i m s e lf up f r om the t e m p o r a ry fall he h ad h ad shortly b e c a u se accused 1 hit the d e c e a s ed at the b a ck of the n e ck a nd the latter never rose again. P W1 stood the brunt of cross-examination well a nd her story h ad a strong ring of truth to it. In fact accused 2 despite his earlier attempts to discredit P W 1 's evidence ultimately took the attitude in his evidence that if P W1 says these things that she testified to h a p p e n ed in her presence he w o u ld h a ve no quarrel with her evidence because, as he said, she w as testifying to w h at she s a w. Indeed e v en accused 1 found himself in a cleft-stick in his attempt to cast doubts on P w 1 's version. His counsel had intimated that she couldn't h a ve m a de accurate observations because of an admixture of fright and drink. B ut her acceptable and credible story is that she doesn't drink a nd that m o re over there w as no drink at M a R e g i n a 's that evening. T he version of both accused centred on this contention w as thus demolished a nd exposed as palpably false. I reject accused 2's story that w h en he c a me to M a R e g i n a 's h o u se he ordered a scale of beer f r om "Maselepe. I reject likewise his statement that for no apparent reason the deceased rose and hit h im first with a k n ob K e r ne m a de of putty. T he vain attempts by both accused to s h ow either that P W1 and M o l u la h ad either long left the scene according to accused 1 w ho said he remained in there for hardly five minutes trying to separate the t wo combatants and left no o ne else but the deceased and accused 2 are rejected as devoid of all truth. T h ey are vain attempts a i m ed at depriving the scene of eye-witnesses. B e c a u se w h en leading P W1 the C r o wn in fairness particularly to accused 2 alluded to possible love affair b e t w e en the deceased and accused 2's wife, w h i ch possibility a m o u n t ed to no m o re than just a rumour, the court sought to elicit from P W3 Malefetsane M o k o t jo whether there could be any basis from this r u m o ur regard being h ad to the fact that normally there is never a s m o ke without a fire. B ut on this aspect of the matter P W3 said he has for a long time been a surviving head of the M o k o t jo family and that at no time w as a complaint m a de to h im in that capacity about the existence of illicit love affair between his n e p h ew the deceased and accused 2's wife. Of importance is that no version to the contrary w as put to C r o wn witnesses on behalf of any of the accused. Y et accused 2 w h en giving evidence under oath said that he actually complained to P W3 about the latter's n e p h e w 's conduct. On the basis of Small vs Smith 1954(3) SA at 434 this contention stands to be rejected as an afterthought. Needless to say Small was referred to with approval by Maisels P in Phaloane vs Rex 1981(2) L LR at p.246 in the following apt terms : "It is generally accepted that the function of counsel is to put the defence case to the Crown witnesses, not only to avoid the suspicion that the defence is fabricating, but to provide the witnesses with the opportunity of denying or confirming the case for the accused. C/f Small vs Smith 1954(3) SA at 434." The contention of accused 1 also stands to be rejected in that it is too little to the point to be worthy of serious consideration. First he doesn't come out clearly as saying there was a love affair between the deceased and accused 2's wife. He dodged giving a straight answer to this. He merely contended himself with saying accused 2's wife came to him long time before the incident complaining that the deceased threatened her with a knife and took away R20-00 from her passport without her consent. While this has the demerit of not having been put to Crown witnesses it doesn't serve as proof of a love affair referred to above. Moreover it took place so long before the incident as not, without proper basis, to be capable of furnishing motive for the unprovoked attack on the deceased. It remains to deal briefly with the position in law. The intention to murder can be gathered f r om (1) the nature of injuries inflicted on the d e c e a s ed w h i ch in turn give a suggestion of the type of the w e a p o ns used, (2) the position in the b o dy of the deceased w h e re the injuries h a ve b e en inflicted (3) a nd the degree of force with w h i ch the w e a p on w as wielded to inflict those injuries. In the instant case t h o u gh the multiple w o u n ds w e re f o u nd m o s t ly on the wrists a nd ankles the fatal o ne w as on the h e a d; a no d o u bt o ne of the m o st vital parts of the h u m an b o d y. F u r t h e r m o re it has not escaped the attention of this C o u rt that these w o u n ds w e re so d e ep as to get to the b o n e. T h is betrays application of brutal force c o u p l ed with s a v a ge violence. T he nature of the injuries described by the doctor as cut w o u n ds on wrists a nd ankles corroborates P W 1 's version that they w e re inflicted with b o th iron rod a nd h o m e - m a de s w o rd b o th of w h i ch w e a p o ns w e re said to h a ve b e en w i e l d ed by accused 1 a nd 2 respectively. An attempt w as m a de on behalf of the defence to s h ow that the a c c u s ed couldn't h a ve conspired to attack a nd kill the deceased as n o ne of t h em k n ew that the d e c e a s ed w as in there - A c c u s ed 2 h a v i ng c o me there after exhausting the beer his wife a nd he h ad b e en treating themselves to at accused 2's h o me a nd h a v i ng b e en attracted to the scene by a " p h e p h e z e la cloth" w h i ch is usually displayed a r o u nd beer halls as an invitation to beer drinkers that beer is in g o od supply at a ny s u ch place; while a c c u s ed 1 for his part w as gravitated to the scene on hearing s o u n ds of disturbance inside M a R e g i n a 's hut. T he simple a n s w er to this contention w h i ch seeks to vitiate the existence of c o m m on p u r p o se or conspiracy to c o m m it a crime is that c o m m on intent c an c o me about in a variety of w a ys a m o ng w h i ch is included the instant a nd s p o n t a n e o us participation in the crime without p r o of of a ny previous m e e t i ng at w h i ch a plan to c o m m it a c r i me w as hatched. T h us if A a nd B m o v i ng f r om opposite directions a nd without betrayal of a ny previous m e e t i ng b e t w e en the t w o, c o me u p on C a nd e a ch inflicts injuries f r om w h i ch C dies, then it c an be inferred f r om the individual acts of e a ch participant that they m u st h a ve conspired before-hand to e m b a rk on the u n l a w f ul a nd w r o n g f ul enterprise in pursuit w h e r e of death resulted. T he t wo accused w e re hard put to it to furnish a ny reason w hy P W1 w o u ld c o me a nd falsely implicate t h em in this trial. T h ey a c k n o w l e d g ed that there h as n e v er b e en history of previous existence of b ad b l o od b e t w e en either of t h em a nd P W 1. H er story w as supported to a large m e a s u re by that of another eye-witness the late M o l u la P W2 s a ve in the m i n or respect that while M o l u la says a c c u s ed 2 u s ed the h o m e - m a de s w o rd t h r o u g h o ut P W1 says a c c u s ed 2 started off using a stick but e n d ed w i th using this h o m e - m a de s w o r d. I w o u ld resolve this discrepancy in favour of P W 1 's version w h i ch w as subjected to probing by cross-examination w h i le that of P W2 e n j o y ed no s u ch test. M o r e o v er as I stated earlier P W 1 's quality of delivery of her tale, her d e m e a n o r, c o m p o s u re a nd lack of bias in favour of either side to the dispute inspired this C o u rt w i th confidence that her testimony is credit w o r t h y. S he indicated that the d e c e a s ed w as no friend of hers a nd o w es h im or his m e m o ry no favour. In the s a me breath she bore neither of the accused a ny g r u d g e. T he fact also that after c o m m i t t i ng this c r i me a c c u s ed 2 w e nt a w ay for close to a year fully a w a re that the deceased could n ot h a ve survived the injuries he sustained indicates that he w as fleeing f r om his crime. I reject his story that he w as not a w a re w h at could h a ve befallen the deceased w h en he parted w i th the latter. In fact h a v i ng stated that the deceased w as m u ch feared by chiefs a nd police alike, a factor again w h i ch w as n e v er put to the C r o wn witnesses, a c c u s ed 2 g a ve an inkling of his attitude w h en he c o n c e d ed hat a n y o ne fighting with a m an of the description he vividly painted as feared w o u ld be put u n d er the necessity not to spare s u ch a m an a ny quarter w h en fighting h i m. T h is attitude m ay well a c c o u nt for the multiple s a v a ge injuries the d e c e a s ed sustained before a nd no d o u bt e v en long after he h ad died. A c c u s ed 2 said the fight lasted about thirty minutes. P W1 places the duration of the attack on deceased as lasting about an hour. I accept therefore that the assault on the deceased before and after he h ad died w e nt on for no less than thirty minutes. In a vain attempt to persuade the Court that he h ad b e en p r o v o k ed by the deceased's conduct towards his wife accused 2 m a de so bold as to say under oath that he caught the deceased in bed with his wife years before this incident. T he a m a z i ng thing about this story is that accused 2 did nothing about such a provocative challenge to the integrity of his marital rights. This is an afterthought a nd fabrication indulged in in an attempt to give substance to the r u m o ur w h i ch credible evidence s h o w ed h ad no substance. N o ne of the C r o wn witnesses w as told that accused 2 caught his wife in b ed with the deceased. M o r e o v er the fact that years passed without accused doing anything about it is a further indication that there w as no substance in the alleged incident. F or the a b o ve reasons this Court is satisfied that the C r o wn has proved b e y o nd doubt that the t wo accused are guilty of m u r d e r; and I so find. My assessors agree. J U D GE 27th M a r c h, 2 0 00 E X T E N U A T I ON Extenuating circumstances h a ve variously b e en described as factors w h i ch if proved should r e d o u nd to an accused person's benefit. T he benefit w h i ch the a c c u s ed p e r s on derives f r om extenuating circumstances, if established, is that instead of suffering the ultimate penalty he will o n ly serve a term of i m p r i s o n m e n t. To this extent extenuating circumstances palliate the m o r al b l a m e w o r t h i n e ss of the a c c u s ed convicted of a capital offence. T he o n us to establish the existence of extenuating circumstances is on the a c c u s ed on a b a l a n ce of probabilities; a nd the test is subjective. T he j u d g m e nt that a Court m a k es w h en presiding on the instant phase of trial is a moral one. In going about this task the Court is enjoined to take into account any factor w h i ch is not too remotely related to the alleged extenuating circumstances raised on behalf of the accused. S u ch factors m ay consist individually o f- (1) (2) (3) (4) (5) youthfulness - or immaturity drunkenness provocation lack of premeditation or even at times the fact that the form of intent proved is dolus eventualis as opposed to dolus directus. T he list is not exhaustive. H o w e v er it is distressing to note that the authority of Naro Lefaso vs Rex C. of A ( C R I) N o .7 of 1989 on extenuation (unreported) from p a ge 11 to p a ge 12 has b e en overlooked or ignored, w h i ch expressed in the w o r ds of Schutz P is to the effect that: " I w o u ld stress that in a matter as vitally important as extenuation, if the defence counsel wishes to rely on an ex parte statement not based on s w o rn evidence he should ascertain clearly whether the C r o wn admits its factual correctness. If the C r o wn does not, defence counsel m u st consider whether he will lead evidence or not. Needless to say I am not referring to an argument w h i ch seeks to derive inferences (that extenuate) f r om p r o v ed facts, but an a r g u m e nt that asserts facts as facts without p r o of of t h em themselves". N e e d l e ss to say in the instant case respective C o u n s el for the a c c u s ed i n f o r m ed C o u rt that they didn't ascertain f r om the C r o wn if the latter accepted their ex parte oratory as factually correct. T he C r o wn insisted therefore that no extenuating circumstances exist in this case. T he C r o wn in the s a me breath c o n c e d ed that a c c u s ed 2's e v i d e n ce that w h en he left his h o me he h ad taken beer to w h i ch he h ad b e en treated by his w i fe w as not gainsaid. F u r t h e r m o re the fact that there w as this r u m o ur of illicit love affair b e t w e en his w i fe a nd the deceased e v en if w h en taken in isolation is worthless, the cumulative effect of this factor taken in conjunction w i th drink is a factor w h i ch a b o ut fits the bill. In this sense the C o u rt accepts that a c o m b i n a t i on of these factors h ad a bearing in r e d u c i ng his m o r al b l a m e w o r t h i n e s s. T he t wo factors w o r k i ng on e a ch other w e re c a p a b le of e g g i ng a c c u s ed 2 on to e m b a rk on rash action at the m e re sight of the d e c e a s ed w h om he perceived as responsible for causing his discomfort a nd souring his marital life. A l t h o u gh not m u ch g o es for a c c u s ed 1 on the d a m n i ng e v i d e n ce that w e nt against h im in the m a in trial a nd hardly anything g o es in his f a v o ur at this p h a se of the p r o c e e d i ng yet if o ne considers a nd accepts that his w as a lesser role p l a y ed in the execution of this sordid act, v i e w ed f r om the angle that a m an w ho w o u ld in the circumstances u se brutish force as an " a g g r i e v e d" a nd d r u n k en party w o u ld be a c c u s ed 2; t h en it stands to r e a s on that a c c u s ed 1 could not h a ve in the circumstances e x c e e d ed the self-deluded a nd so-called " w r o n g ed party" in executing this s a v a ge attack on an innocent m a n. F or the a b o ve reasons the C o u rt finds that extenuating circumstances exist in respect of a c c u s ed 2. In respect of accused 1 the C o u rt very v e ry reluctantly finds o n ly barely that he s h o u ld benefit f r om the highly strained a nd e x t e n d ed logic expressed a b o ve in order for h im to e s c a pe the ultimate penalty. C O U R T 'S R U L I NG ON P L E AS IN M I T I G A T I ON My assessors a nd I h a ve h e a rd the pleas in mitigation a d v a n c ed on y o ur b e h a lf by y o ur respective C o u n s e l. T h ey very correctly indicated that in respect of a c c u s ed 1 that he is a first offender a nd regard being taken of the fact that he is a fairly a g ed m a n, it stands to his credit that he h as h a d, so to speak, a clean slate of existence up to n o w. I am told that he is a peasant farmer, supports a wife a nd children a nd of course I take it that it is true that he s h o w ed remorse in this Court as I observed h im during this trial. I am also told he is senile. In respect of accused 2 likewise I am told he has no previous convictions and that he supports an old a nd sickly mother, a nd that this is true in respect of both accused - the long wait to date has b e en very stressful. I did indicate in the m a in trial that it is regrettable that u p w a r ds of ten years h a ve b e en spent before this matter could c o me to trial today. Apparently this m u st h a ve influenced Mr M a s i p h o le very negatively because he asked me if I understood that this matter has taken such a long time. I h a ve no q u a l ms in assuring the learned Counsel that without any p r o m p t i ng I took that into account. H a v i ng said all these, the Court will be failing in its duty if it could regard m u r d er of a savage nature like this o ne as anything other than o ne that merits a proper r e m e d y. W i th respect to accused 1 w ho w as a chief, the fact that he participated in this savage attack on his subject, a nd accused 2 for no reason whatsoever did this savage act on a fellow being are matters of grave concern a nd total unacceptability. T he deceased w as given no opportunity to answer for himself, while the t wo accused are standing here a nd h a ve been given an opportunity to a n s w er for themselves. T he chief a nd accused 2 constituted themselves prosecutor, judge a nd executioner, all w r a p p ed in one; with the result that the p o or victim didn't survive. W e ll he also h ad next-of-kin. I am told o ne of y ou has got a wife a nd the other aged mother and so forth. I stress that the deceased also has got next-of-kin. N ow the least sentence I can impose on accused 1 is o ne of fourteen years' imprisonment a nd in respect of accused 2 fifteen years' imprisonment. My assessors agree. J U D GE 27th March, 2000 For C r o wn : Ms Mofilikoane For Accused 1 : Mr M p a ka For Accused 2 : Mr Masiphole