R v Polaki (CRI/T 2 of 2001) [2001] LSCA 123 (1 October 2001)

CRI/T/2/2001 IN T HE H I GH C O U RT OF L E S O T HO In the matter between:- R EX vs TLOTLISO P O L A KI J U D G E M E NT Delivered by the Honourable Mrs. Justice K. Guni On 1st Day of October, 2001 T he accused in this case, is charged with the crime of A S S A U LT W I TH I N T E NT TO DO G R I E V O US B O D I LY H A R M. It is alleged that on 14th of July 2 0 00 and at or near T HE M A S E RU M A G I S T R A T ES C O U RT premises in the district of M A S E R U, the accused did unlawfully assault N I K I WE S E T S A BI by biting her and inflicting upon her certain injuries reflected in the medical reports, with the intention of causing her grievous bodily harm. The essential elements of the offence charged, are that (a) there must be an assault, (b) committed with intent to do grievous bodily harm. 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 R E, VOL.11 ( C o m m on Law Crimes) T H I RD E D I T I ON By JRL M I L T ON page 432. The crown led evidence from six witnesses. The facts as appear from the evidence of these witnesses are as follows: The alleged assault may be divided into three episodes. The first episode happened in the privacy of the complainant's office. During the lunch hour between one and two o'clock in the afternoon of the day in question, the complainant was in the P R O B A T I ON OFFICE. She was in the company of TSEPISO M A J O R O, SEITHATI M O T S A M AI A ND L I E K E T S E N G. They were having lunch therein when they heard a knock at the door. The person knocking at the door was invited in. The door opened and the accused entered. Without even greeting the occupants of the office she had just entered, the accused looking at the complainant, and obviously addressing her said, "I have come to your office". The complainant, who was looking down at that moment lifted her head and noticing that the accused is talking to her, she consulted her watch and replied, " I am still having my lunch" or it is still lunch hour" or words to that effect. The accused went on to explain to the complainant, that she has not come on official business. The complainant got up from her seat. The two, (complainant followed by the accused) left the P R O B A T I ON O F F I CE for the complainant's office. On arrival at the complainant's office, complainant went round her desk. She pulled out her chair and sat down. She offered the accused a chair. The accused declined the offer and remained standing right infront of the complainant, on the opposite site of her desk. T he accused told the complainant she has the information that the complainant insulted her husband (accused's h u s b a n d) w h en she w e nt to D o m i n ic to cleanse her family's n a m e. T he complainant asked the accused w ho told her that. T he accused pointed out to the complainant that, that is not the issue. But nevertheless she n a m ed the person w ho told her as one D o m i n i c. T he complainant admitted that she did talk to this D o m i n ic but she denied ever insulting the accused's husband during their discussion. T he accused quoted the w o r ds allegedly used by the complainant as "le Polaki oa satane o na le teng ha koranda li ngoloa - translated - even the satan Polaki w as present w h en the n e w s p a p er w as written or published" or w o r ds to that effect. According to the accused this D o m i n ic is related to her husband. She indicated to the complainant, that because of that relationship, she could not understand w hy D o m i n ic w o u ld lie. In response to this intimation the complainant enquired from the accused, if she then suspects that the complainant is a liar. This w as answered in the affirmative. This being the case, the complainant pointed out to the accused that she could therefore not convince her. T he best they could do is to confront this D o m i n ic together (that is, the accused and the complainant). T he accused said to the complainant that they are not the s a me and they will never ever be alike in their lives. W i th this intimation the complainant agreed completely. T he accused went on to say that the complainant is "sekatana" translated "worthless" w h e r e u p on the complainant exclaimed, "'na ? sekatana? translated m e? worthless?" T he accused answered in the affirmative. T he complainant laughed. She turned her head a w ay from facing the accused and looked outside through the w i n d ow behind her as she laughed. M ay be this gesture talked louder than any w o rd that w as ever uttered by the complainant at this point. M ay be the accused felt ridiculed. Her temper apparently snapped. W h en the accused arrived at the P R O B A T I ON O F F I CE earlier on that afternoon, w h en she called the complainant to her office she had a 1 3 5 ml bottle of G u a va juice in her hand. She w as still holding it as they talked in the complainant's office. W h en the complainant returned her face to look at the accused, she saw that bottle of g u a va juice c o me flying towards her face. She raised her hands to shield her face. T he bottle hit her on the hand and fell. T he juice w as splashed on the complainant overcoat, papers on her desk and the wall behind her. As she threw that bottle at the complainant the accused said, "uena satane tooe ea letekatse-translated-you satan bitch" T he complainant said she w as caught off guard. She hardly expected this sort of thing to happen. I should have mentioned earlier on that these t wo people are magistrates. T h ey w o rk as such on those M a s e ru Magistrates Court premises. T he complainant said she w as so shocked that it took s o me m o m e n ts to gather herself. W h en she did c o me round she asked, "Tlotliso u etsang? - translated - what are you doing". T he accused c a me round the desk towards the complainant. There w as a p u n ch on the desk. She tried to pick it up and hurl it towards the complainant, as she m o v ed closer towards her but it fell in the process. T he accused picked it up again. This time she had m o v ed closer to the complainant. She attempted hitting the complainant on the face with it. T he complainant had by then grabbed hold of the accused's hand that w as a r m ed with the punch. T he punch fell d o wn once again. T he complained picked up the telephone and tried to m a ke a call. She said she intended calling the Probation Officers next door. T he accused rushed to the complainant and grabbed the telephone from the complainant. She tried to hit her with that telephone. It fell. She picked it up again. This time she succeeded to hit the complainant with that telephone set on the chest just b e l ow her breast. During all this fighting the complainant kept asking the accused, "Tlotliso, what are you doing?" repeatedly. T he complainant told the court that she told the accused that she is aware this accused want a fight but she will not give her a fight. T he complainant ran towards the door. T he accused w ho w as still holding on to the complainant's hair ran along with her towards the door. T he complainant got hold of the door handle and turned it to open the door. T he accused pushed shut that door and got hold of the lock and tried to turn it in order to lock it. T he struggle ensued. This struggle for the possession and control of the door went on for s o m e t i m e. T he complainant w as trying to open it and the accused w as trying to shut it. W h i le they fought to o p en and close that door the complaint s aw and/or felt the accused take a bite at her left cheek, twice. T he complainant has sustained an open w o u nd on the cheek as a result. T he evidence of Dr. Maitin w ho testified at this trial is to the effect that that cut could have been m a de by teeth or nails. T he counsel for the defence put it to the complainant and the Dr. that the accused will say she caught with her nails the complainants' cheek w h en she tried to grab the complainant's hair. T he complainant claims that because she has such an oily skin on her face, the accused could not m a n a ge to grab hold of the flesh on her cheek. H er teeth slipped. While the struggle went on, s o m e h ow the complainant succeeded to open the door and ran out. As she ran back to the P R O B A T I ON O F F I C E, she heard the accused say, " T s oa ka hara lapa laka y ou bastard"- translated, - "Get out of my family or leave my family affairs you bastard!" or words to that effect. The complainant looked back and saw the accused threw an object at her. This object was the stapler. She lifted her overcoat to cover her head and quickly shut the door behind her, immediately after she re-entered into the P R O B A T I ON OFFICE. There was a loud bang "Qhuu" as the stapler smashed on that door and fell down. While on her way to take a seat, the complainant said, "Batho ba Molimo! Motho ke enoa a ntoantsa! Ha ke tsebe hobaneng. Ho 'me nkeke ka mo loantsa." Translated. People, here is someone fighting me. I do not know why. But I will not fight back". One of those probation officers therein asked, "what?" in apparent astonishment. The complainant replied, "Tlotliso is fighting me!" The complainant sat for a few moments. She got up again. This time Tsepiso and Seithati ((PW4 & 5) went out. The complainant followed them. The accused was standing outside the complainant's office. P W 4, 5 and the complainant went there. On their arrival P W4 asked, "what is the matter?" The question was directed to both the complainant and the accused. P W4 was pulling away from the complainant's office this accused. The accused was pulling herself away from P W4 who asked her "what are you doing?" Then the accused replied, "let me beat up or assault this prostitute." The accused succeeded to break free from P W4 and got to the complainant w h om she started assaulting by hitting her with fists. Seithati went between the accused and the complainant. P W4 got hold of the accused by her waist and dragged her away from the complainant. Seithati and Tsepiso escorted the accused away from the complainant's office. They pleaded with the accused to go to her own office. As I mentioned earlier on the accused and the complainant work as magistrate on these premises. The accused's office is upstairs. From the complainant's office, one can get to the accused's office upstairs by using a lift or a staircase. P W4 and 5 were escorting the accused in that direction, towards the lifts or staircase. The accused seems to suggest that she went to her office on her own volution and without an escort. While proceeding thus to her office, the accused indicated to P W4 & 5 that she was going back to the complainant's office to fetch her hat. P W4 suggested to her that P W5 will go and collect it on her behalf. The accused insisted that she was going herself. She broke free from PW4's grip and returned to the complainant's office. Meanwhile, the complainant had come to her desk and had sat down. She saw hanging from the open middle drawer of her desk, the accused's hat. At the time she rushed to the telephone to call the Probation Office and eventually ran out of her office after struggling with the accused, that hat was not there. I may just venture a suposition here, that this hat may have fallen there during the struggle for the possession of the punch and the telephone set. This appears to be the only time when the accused according to the evidence was on that side of the complainant's desk. As the accused re-entered the complainant's office, she said, " N I K I W E! give me my hat!" The complainant replied that it is evidence. As the accused came round the complainant's desk, the complainant stood up. P W4 & 5 were coming behind the accused in hot pursuit. Lieketseng was also present in that office this time and was the first person to go between the complainant and the accused as the accused attacked the complainant. This hat which was hanging on the open drawer was not within sight of P W 4, 5 and perhaps Lieketseng who were on the other side of the complainant's desk. It was put to the complainant that she attacked the accused when she returned to retrieve her hat. The compliant denied that accusation. She pointed out that the accused did not attempt to pick up her hat w h i ch w as still hanging on that open drawer. But she straightaway launched both physical and verbal attack u p on the complainant after d e m a n d i ng her hat from her. T h o se present in that office at the time also s aw the accused hit the complainant with the fist and the altercation ensuing therefrom. Lieketseng went b e t w e en the accused and the complainant and started to p u sh t h em apart. T he complainant retreated. T he accused kept advancing and hitting the complainant. T he attempt by Lieketseng to keep the accused and the complainant apart w as not successful. T he accused w as seen taking a bite at the complainant's forearm. T he complainant tried to push the accused a w ay from her forearm by pushing at the accused's forehead. That attempt failed. T he complainant with her left hand tried to r e m o ve the accused's head from her right forearm by pulling the accused by her hair. P W5 tried to pull the accused a w ay by her hand. According to the complainant the accused tightened her grip with her teeth on the complainant's flesh. T he complainant w as in pain. She kept crying, "let go". As the complainant cried out and pleading with the accused not to bite her, P W5 grabbed the accused by her waist and dragged her a w ay from the complainant. This time the accused let go with her teeth and spat out. After they had been successfully separated the accused bend d o wn and picked up her hat. T he complainant said to the accused, that w as her evidence. T he accused replied " To hell with your evidence". A nd she left with her hat. But on her w ay out of the complainant's office, the accused said she had not yet finished with the complainant. After retrieving her hat, the accused without m u ch difficulty left for her o wn office. T he medical evidence by Dr. Maitin s h o w ed this court that the complainant has sustained the following injuries:- 1. Puncture w o u nd middle of left cheek with surrounding induration due to infection. 2. R a g g ed laceration lower end of the right forearm. This w o u nd measures 3 x 4 cm with surrounding induration due to inflamation. 3. Sprain of the left t h u m b. 4. Tender bruise volar aspect of the right hand measuring 4 x 4 cm 5. M a r k ed tenderness of the 9th 10th and 11th ribs due to bruising. 6. Moderate tenderness of the left shoulder due to bruising - m o v e m e nt very tender. 7. Loss of hair on top of the skull. At the close of the c r o wn case, counsel for the accused indicated that he intends to m a ke an application for the discharge of the accused. This application is m a de in terms of Section 175 (3) C R I M I N AL P R O C E D U RE A ND E V I D E N CE A CT N O .9 of 1981. It provide, "(3) if, at the close of the case for the prosecution, the court considers that there is no evidence that the accused c o m m i t t ed the offence charged or any other offence of w h i ch he might be convicted thereon, the court m ay return a verdict of not guilty". ( my underlining) This section merely e m p o w e rs the court to consider returning the verdict of not guilty at this stage of the trial in the cases w h e re first of all there is no evidence, placed before that court, on which the accused might be convicted of the offence charged or might be found guilty of any c o m p e t e nt verdict under this particular charge. There is therefore a further requirement placed u p on this court by this section to e x a m i ne carefully, the evidence led before it and satisfy itself that there is no evidence on which this accused could be convicted of the office charged or any other offence under the s a me charge. In this particular case before m e. I am required in terms of the said section, to e x a m i ne carefully the evidence before me and determined in the light thereof, whether or not the accused might be convicted of the offence charged that of Assault W I TH I N T E NT TO DO G R I E V O US B O D I LY H A RM or A S S A U LT C O M M ON . There is evidence before this court w h i c h, if believed, might result in the conviction of the accused on the offence charged. This court is urged not to believe that evidence. T he defence counsel has submitted, that evidence led by the prosecution on the w h o le is so incredible, that it is not worthy of the court's consideration. R. V. M A T E TE and Others 1977 L LR page 262 w as cited as authority for the above submission. In this case M O F O K E NG J. (as he then w a s) decided that the c r o wn has failed (1) to adduced prima facie evidence to prove the elements it set out in the indicament and (2) in addition the evidence that the crown has adduced is "so patently unworthy of credit that a reasonable man acting carefully might not convict. (see page 281 R. V. M A T E TE Supra) (my underlining and numbering to highlight the salient point decided in that case). There was no evidence, that established a prima facie case against the accused in M A T E T E 'S case. Coupled with the absence of prima facie evidence, was the existence of evidence before that court that was so patently unworthy of credit that a reasonable man, acting carefully might not convict. Furthermore, that evidence did not disclose the commission of any other offence, of which the accused might be convicted. Pursuant to those findings, the court was entitled to discharge the accused at the close of the prosecution case. There is no law that obliges the court to discharge the accused at the close of the prosecution case. R e x. V . T H O B A LA 1981 (2) L L R 3 6 3. On that authority of R e x. V. Matete (Supra), it is clear that the evidence adduced by the prosecution must be essentially b e y o nd criticism. In our present case the proper analysis of the prosecution evidence, m a k es the criticism of its worth unjustified. For e x a m p l e; the evidence of the police office P W 2, w ho is the Investigating Officer of the case, s h o w ed this court that the papers and books were scattered on the desk and the floor in the complainant's office. This police officer visited the scene of the alleged crime (4) four days after the alleged assault had occurred. T he defence seemingly entertained the possibility of interference with the scene of the crime during the interviewing period before the Investigating Officer inspected it. T he doubt should have been put to rest by evidence of this witness to the effect that he gave specific instructions to the complainant, not to enter her office before it was inspected by him. In her evidence the complainant testified to the effect that she obeyed those instructions issued to her by the police office. While P W 3, the complainant, gave evidence, it was put to her that she deliberately shuffled the papers and books on her desk. It was put to her that she was annoyed by the accused when she (the accused) pointed out to her that she believes Dominic - the informer who allegedly informed the accused that the complainant insulted her husband. It was put to the complainant that she started shuffling papers and books on her desk as she expressly promised to bring a disaster upon the accused. The defence counsel seemed to suggest that the complainant deliberately scattered those papers and books on her desk and floor of her office. From these suggestions to the crown witnesses, the defence may seem to admit, in an oblique way, that the scene of the offence, (the complainant's office), appeared as if it had been hit by a mini earthquake or severe whirlwind. The splashes of that pink fruit juice on the coat and wall of the complainant's office, were according to both the complainant's and the defence counsel from that 135 ml bottle of guava juice which the accused was holding in her hand when she arrived at the P R O B A T I ON Office that afternoon, when she called the complainant to her office. The complainant told the court that the accused threw that bottle with content at her face. The suggestion made by the defence counsel is to the effect that the complainant is the one who threw that bottle at the accused. The medical report from Queen Elizabeth II Hospital by Dr. Marina Punnen was produced by consent of the parties. The injuries sustained by the complainant are described in this report as "Laceration on the left cheek and dorsum of the right forearm". The other medical report was made by Dr. Maitin. It was also produced by the said Dr. before this court. The injuries are descried therein as (i) Puncture wound middle of the left cheek. (ii) Ragged laceration lower case of the right forearm. (iii) Loss of hair causing mopecia areata. The accused does not deny causing the injuries described in the two medical reports, produced before this court. The challenge was made as regards what was used to cause the open wound on the complainant's left cheek. It was put to both the complainant and Dr. Maitin under cross- examination, that it was the accused's nails or nail, not teeth, which caused the open wound in the complainant's left cheek. The accused has admitted causing that injury. It is not very material whether it was by nail or teeth. As the complainant was about to re-enter the P R O B A T I ON OFFICE, she saw the accused threw the stapler at her. She thought she was going to be hit on the head. She raised her overcoat to cover her head. She also closed the door behind her immediately after making the entry. That stapler hit the door and fell down. The accused admit throwing the stapler but not with intent to assault the complainant. It is claimed on her behalf that she threw the stapler in frustration when the complainant left her behind. Those in the P R O B A T I ON O F F I CE testified, that they head the bang and saw the stapler fall. The complainant was seen re-entering that office with her head covered with her overcoat. It is an essential element of the crime of Assault with intent to cause grievous Bodily H a rm that, there should be an assault. T he crime of assault has in turn its essential elements. A m o n g st w h i ch there must be an inspiration of apprehension of fear that force is about to be applied u p on the victim's person. T he actions taken by the complainant in order to protect her head are indicative of her inspiration of apprehension of i m m i n a nt application of force upon her person. It is the complainant's evidence that she felt pain and she tried her level best to r e m o ve the accused's head by pulling it with the hair from her forearm. T he accused s e e ms to claim a right to bite the complainant w ho she accused of being in her w ay and preventing her from retrieving her hat. T he complainant did not have in her hands the accused's hat. It w as hanging on the open drawer of the complainant's desk. This is perhaps w h e re it fell during the previous scuffles between the parties. I do not accept that the accused had a right to bite her as a w ay to recover her hat under any circumstances. There is evidence before this court on which the accused might be convicted on this charge. T he prosecution has succeeded to establish a prima facie case for this accused to answer. There might be s o me m i n or discrepencies as the various witnesses observed different things or paid their attention on different aspects. This w as a fight and an allowance m u st be m a de for witnesses to miss out on s o me aspects. On the m a in the c r o wn witnesses corroborated each other's evidence on all material and relevant respects. This application for discharge of the accused must fail. It is therefore dismissed. J U D GE 1ST O C T O B E R, 01 For Crown: Mr. Lenono For Defence: M s. Teele 27