R v Senaoana (CRI/T 25 of 90) [1991] LSCA 42 (12 April 1991)

C R I / T / 2 5 / 90 IN THE HIGH COURT OF LESOTHO In the m a t t er b e t w e e n :- R EX and MOTSOANE SENAOANA Accused HELD AT BUTHA BUTHE J U D G M E NT Delivered by the Honourable M r. Justice J. L. Kheola on the 12th d ay of A p r i l, 1991 The accused is charged with the m u r d er of 'Mapiti K h u m a lo on the 9th d ay of February, 1989 at Ha 'Makuini in t he d i s t r i ct of Butha Buthe. The d e f e n ce tendered a plea of guilty of culpable homicide which w as rejected by the C r o w n. P. W. I 'Mamakoanyane Loki testified that she lives in the same village with the accused. The deceased also lived in the same village. On the 9th February, 1989 she had invited her - - co-villagers to assist her to hoe her field. After they had finished hoeing they set down and drank some liquor. The accused and one Mabolloane, arrived and joined in the drinking. Having finished the liquor they went to her home where she gave them more liquor in a twenty - litre tin. The accused drank the liquor with the people who had been hoeing until late at night. The deceased had also joined the group although she had not gone to the fields. P. W.1 asked them to leave because she wanted to sleep. They complied with her request. Under cross-examination the witness denied that she knew of any relationship between the accused and the deceased. P. W.2 'Maqenehelo Sepetla testified that on the 9th February* 1989 she had brewed some liquor to celebrate the birthday of her child. The celebrations went on until very late at night. The accused and the deceased attended the celebrations b ut arrived at night and were already drunk. There were about seven people in the house. They were all drinking liquor and singing. They left one by one until only the accused and the deceased remained. Thereafter the deceased informed P. W.2 that she was leaving. P. W.2 said she should not go because it was too late. The deceased insisted that she was leaving and even asked P. W.2 to lend her a blanket because it w as cold. The accused said P. W.2 should let her go because he would accompany her. P. W.2 lent the deceased a blanket and she left with the accused. Some time after they had left she heard their voices at the forecourt of her house. She opened the door and found /3 -3- them at the f o r e c o u r t. S he again pleaded with the deceased to come into the house b e c a u se it w as too late f or her to go to her h o m e. S he refused. P. W.2 gave up and w e nt into her house and slept. A f t er some time the accused knocked at the d o or and asked P. W.2 to open for him. She refused. The accused said he had brought her parcel and dropped something at the d o o r. S he looked through the window and saw that the accused w as going away. S he opened the d o or and found the blanket which the deceased had borrowed. She took . it and again slept. The accused again returned and knocked at the d o or and asked . P. W.2 to open the d o or and allow him to come in because she did not know why she had come to her p l a c e. On t h is occasion she opened the d o or because she w as c u r i o us and wanted to know why he had brought back the blanket at that time of the n i g h t. The accused entered and sat d o w n. He asked her if she knew that the person with whom he left w as d e a d. He explained that he caught hold of her and choked her and she d i e d. He said he w as playing with her. Finally he warned her not to tell any- body b e c a u se he would turn against her. After that he w e nt away. P. W.2 reported the m a t t er to her m o t h e r - i n - l aw immediately after the d e p a r t u re of the a c c u s e d. On the following morning the deceased w as found dead near the a l o es near the c h i e f 's p l a c e. Under cross-examination P. W.2 denied that she w as in love with the accused. She said she did not know any relationship /4 -4- between t he accused and the d e c e a s e d. The rest of the d e p o s i t i o ns of the Crown w i t n e s s es at the preparatory examination w e re admitted by the d e f e n c e. They relate to the finding of the body of the deceased on the m o r n i ng of the 10th February, 1989 as well as the injuries it had, the confession m a de by the accused and the post-mortem examination report which w as handed in e v i d e n ce by agreement w i t h o ut calling the d o c t or w ho performed the post-mortem e x a m i n a t i o n. According to the post-mortem examination report the d e a th of the deceased w as d ue to intracerebral h a e m o r r h a ge and?? Hanging. Externally the deceased had b r u i s es on forehead ( r i g h t ), left cheek and jaw; Blood w as oozing from the m o u t h, e a rs and n o s t r i l s; the e y es and tongue w e re protruding; there w e re pressure m a r ks around the neck. Internally there w as linear f r a c t u re of the parietal bone and intracerebral haemorrhage. Both lungs w e re congested. In the confession the accused states that when he left 'Maqenehelo's place he accompanied the deceased w ho w as h is lover. On the way she requested her to accompany her to S a j e n e 's p l a c e. He said S a j e n e 's place w as too f ar and he could not reach it. He told her that he just wanted to have sexual intercourse with h e r. T he deceased said they should go on and m a ke p r e p a r a t i o ns later. When they came to the a l o es he again asked her to have sexual intercourse with him. S he refused. He caught her and threw her to the ground and had sexual intercourse with h e r. Because she w as refusing he strangled her and pressed her to the g r o u n d. He then dragged her o ut of the path and tried to raise her u p, he noticed that /5 - 5 - she w as numb and her neck was loose or unbalanced. He took the blanket she had borrowed from 'Maqenehelo and told her that his lover had died. At the preparatory examination the accused decided to m a ke a sworn statement after the Crown had closed its case. In that statement he states that he and one Sajene were the lovers of the deceased. She had warned him to respect Sajene because he was her first lover. On the 9th February, 1989 the deceased asked him (accused) to accompany her as Sajene had already left. He agreed. She borrowed a blanket from 'Maqenehelo. On the way he asked the deceased to have sexual intercourse with him. she refused. He threatened her, choked her and she d i e d. He went back to 'Maqenehelo and told her about the matter. In his testimony before this Court the accused deposed that when they left 'Maqenehelo's place the deceased said she w as going to Sajene's place. He did not approve of that and when she insisted that they should go there, he caught her and choked her. She fell down. He also fell down and they both rolled down the slope and over the barbed wire until they landed in a yard. He did not actually intend to strangle her but merely intended to frighten her so that she could stop insisting that they should go to Sajene's place. In the three statements made by the accused at various time he admits in no uncertain terms that he killed the deceased by strangulating her. The question is whether the killing can be regarded as justifiable homicide. The accused d o es not say that he / 6 . . . .. - 6 - killed the deceased in self-defence. In the c o n f e s s i on which he m a de to a m a g i s t r a te on the 14th February, 1989 he says he choked the deceased because he w as refusing to have sexual intercourse with him. He repeated the same story at the preparatory e x a m i- nation on the 8 th November, 1989. H o w e v e r, at t he trial he now says that he strangled her b e c a u se she insisted that they should go to S a j e n e 's p l a ce and that he had already heard sexual intercourse w h en he strangled her. I am of t he opinion that the accused is a lier and that in his testimony b e f o re t h is C o u rt he told a pack of lies. The truth is w h at he said in h is confession and in the statement he m a de at the preparatory examination that he strangled the deceased when she refused to h a ve sexual intercourse with him. He strangled the deceased and forced her to succumb to having sexual intercourse with him. In o t h er w o r ds he raped t he deceased and in the c o u r se of t h at he strangled her to d e a t h. There w as no provocation on the p a rt of the d e c e a s e d. S he w as entitled to refuse to h a ve sexual i n t e r c o u r se w i th the accused e v en if they w e re lovers b e c a u se she w as not h is w i f e. I have a very serious d o u bt t h at the deceased had any illicit love affair with the accused. The w i t n e s s es w ho g a ve evidence in t h is c a se w e re not aware of such a f f a i r. In addition to that the deceased behaved in a m a n n er which indicates that she w as not in love with the accused. The accused had to use very savage f o r ce in order to overpower her. T h is is an indication that she resisted very strongly and struggled with the accused b e f o re she w as killed. The injuries show clearly that the accused lied w h en -7- he said all he did w as to hold her at the throat and pressed hard. There w e re pressure m a r ks around the neck which even gave the the doctor impression that the deceased w as hanged. Something like a belt or rope m u st h a ve been used to cause the m a r ks around the n e c k. There w as a f r a c t u re of the parietal bone indicating t h at some hard o b j e ct m u st have been used to strike the d e c e a s e d. It is common cause that at the time of the commission of the o f f e n ce alleged against him the accused w as d r u n k. T he criminal liability of intoxicated p e r s o ns is clearly set o ut in section 2 (1) (2) of the Criminal Liability of Intoxicated P e r s o ns Proclamation N o. 60 of 1938 as f o l l o w s :- 2(1) (2) Save as provided in t h is section, intoxication shall not constitute a d e f e n ce to any criminal c h a r g e. Intoxication shall be a d e f e n ce to any criminal c h a r ge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission w as wrong or did not know what he w as d o i ng and - (a) (b) the state of intoxication w as caused w i t h o ut h is consent by the m a l i c i o us or negligent a ct of another person; or - the person charged w as by reason of intoxication insane, temporarily or o t h e r w i s e, at t he time of such act or omission. The accused in the instant c a se knew w h at he w as d o i ng and knew that it w as wrong. He described very well w h at he did although he sometimes distorted the f a c ts to suit h is p u r p o s e s. He knew that w h at he did w as wrong and immediately w e nt to 'Maqenehelo and told her w h at he had d o ne and strongly warned her not to tell any /8 - 8 - person that he had killed the d e c e a s e d. T h is is a c a se of voluntary intoxication and the accused w as not insane, temporarily or o t h e r w i s e. I found that the accused had the specific intent to kill the deceased in that the foresaw the d e a th of the deceased as a possibility d ue to h is assault b ut w as r e c k l e ss as to w h e t h er it occurred or n o t. I find him guilty of m u r d e r. My a s s e s s o rs a g r e e. J. L. KHEOLA JUDGE 12th A p r i l, 1991. - For Crown For Defence - Mr. Fosa. M r. Qhomane - 9 - EXTENUATING C I R C U M S T A N CE Extenuating circumstance became obvious d u r i ng the trial. They are that the accused w as d r u nk and that there w as no premeditation. I find that there are extenuating circumstances. SENTENCE: I took into account that the accused is a f i r st offender; he h as four m i n or children; he w as drunk when he committed the offence. However, the accused committed a very serious offence f or no apparent reason. I sentence him to seventeen (17) y e a r s' imprisonment. J. L. KHEOLA JUDGE 12th A p r i l, 1991. For Crown - M r. Qhomane For Defence - M r. Fosa.