R v Tlali (CRI/T 55 of 88) [1990] LSCA 54 (16 February 1990)

C R I / T / 5 5 / 88 IN T HE HIGH C O U RT OF L E S O T HO In t he Matter of : REX v THABO MAFATLE TLALI J U D G M E NT Delivered by t he H o n. M r. Justice B. K. Molai on the 16th d ay of February, 1 9 9 0. Held at Butha-Buthe The accused is charged with t he c r i me of m u r d e r i ng M p ho M o s a e, it being alleged t h at on or about 31st O c t o b e r, 1987 and at or near Ha Tjopa in t he d i s t r i ct of l e r i be he unlawfully a nd inten- t i o n a l ly killed t he deceased,, When t he charge w as p ut to h im t he accused pleaded guilty to C u l p a b le H o m i c i de but n ot m u r d e r. M r. Kolisang, w ho represents the accused in this m a t t e r, informed t he court that t he plea w as in a c c o r d a n ce w i th h is instructions. H o w e v e r, M r. M o k h o b o, counsel f or t he c r o w n, told t he court t h at t he c r o wn w o u ld n ot accept t he plea of guilty to C u l p a b le Homicide tendered by t he accused p e r s o n. T he plea of n ot guilty w as consequently e n t e r e d. It m ay be m e n t i o n ed from t he word go t h at at t he c o m m e n c e- m e nt of this trial M r. M o k h o b o, f or t he c r o wn accepted t he admissions m a de by M r. Kolisang, on b e h a lf of t he accused person t h at t he defence w o u ld n ot d i s p u te t he d e p o s i t i o ns of Fani M o s a e, D/L/Sgt Mahase and 'Mamosuoane Rantuba w ho w e r e, respectively P. W. I, 3 a nd 5 at t he 2/proceedings - 2- proceedings of the Preparatory Examination. In terms of the provisions of 5.273 of the Criminal Procedure and Evidence Act, 1981 the deposi- tions of P. W.1, 3 and 5 at the Preparatory Examination proceedings were admitted in evidence. It w a s, therefore, unnecessary to call the deponents as witnesses in this trial. It is further worth mentioning that the post-mortem Examination Report w a s, by the consent of both counsels, handed in from the bar as Exhibit A. It was likewise not necessary to call the medical doctor who performed the autopsy as a witness in this trial. Now, very briefly stated the evidence of D/L/Sgt Mahase was that she was stationed at Peka police post. On 1st November, 1987 she received a certain report following which she proceeded to the village of Ha Tjopa where she found the dead body of the deceased. She exa- mined the body for injuries and found that it had sustained a single stab wound below the left breast she caused the body to be conveyed to Hlotse hospital. According to the police officer before she left the village a knife was handed to her by the chieftainess of the area. That was confirmed by Mamosuoane Rantuba who told the court that she was the chieftainess in the village of Ha Tjopa. Following the death of the deceased she searched the accused's home and found the knife between parcels of maize and suit cases. Because it had blood stains on it she took possession of the knife and handed it to the police o f f i c e r. She testified that she had seen the accused when he returned from HLotse and assured the court that the accused had no wounds on him although he appeared to be limping as he walked. In her testimony D/L/Sgt Mahase further told the court that when it was handed to her,she took possession of the knife 3/ which she -3- which she handed in as Exh 1. When she returned to t he police post she found t he accused and showed h im Exh. 1. Following h is e x p l a n a- t i on about t he knife she cautioned and charged t he accused as a f o r e- m e n t i o n e d. According to t he Post-mortem Examination - Exh A - t he autopsy w a s, on 6 th N o v e m b e r, 1 9 8 7, performed by a medical doctor at t he mortuary of Hlotse h o s p i t a l. T he body was identified as that, of t he d e c e a s ed by Fani M o s a e, That w as confirmed by Fani M o s ae w ho told the court that t he d e c e a s ed w as h is o wn son. On 31st O c t o b e r, 1987 t h e re w as a p a r ty at his h o m e. Later on t h at day he left h o me for his place of e m p l o y- m e nt w h e re he w o r k ed as a n i g h t w a t c h m a n. Early in t he m o r n i ng of the following day he received a report as a result of w h i ch he w as rushed h o me where he learned t h at his s o n, t he d e c e a s e d, w as lying dead in the street next to 'Mapakiso's h o m e. He went to t he spot and, indeed, found the deceased dead. He confirmed t he e v i d e n ce of O/L/Sgt Mahase that the body of t he d e c e a s ed had a single wound on the breast. According to Fani Mosae he w as one of t he p e o p le w ho accompanied t he b o dy of t he deceased to the m o r t u a ry at Hlotse h o s p i t a l. It sustained no additional injuries whilst it w as being t r a n s p o r t ed from the village of Ha Tjopa to t he m o r t u a r y. The findings of t he medical doctor w e re t h at the P o s t- Mortem Examination revealed a 10cm long stab w o u nd which had p e n e- trated into t he pericardial sac c a u s i ng m a s s i ve b l e e d i n g. In t he o p i n i on of t he medical d o c t or a s h a rp instrument could h a ve been used to inflict the stab w o u nd on t he d e c e a s ed and death w as d ue to e x c e s s i ve loss of blood from t he injury. 4/ I can -4- I can think of no good reasons why the findings of the medical doctor that the deceased's death was due to excessive loss of blood resulting from the stab wound that had penetrated into his pericardial sac should be doubted. That being s o, the salient question for the determination of the court is whether or not the accused is the person who has inflicted the stab wound and, therefore, brought about the death of the deceased. The accused conceded that he was the person who had inflicted the fatal injury upon t he deceased and therefore brought about his death. He, however, contended that he had no intention to kill the deceased. It is common cause that on the night of the day in question 31st October, 1987, the accused attended the party that was held at the home of t he deceased. When he left t he party at about 12 midnight he was in the company of P. W. I, Simon Mokhoabane and one Boy Boy. According to the accused, as they left the party, they were followed by a group of people amongst whom he identified the deceased, Kajang and Lipholo. They were apparently in a fighting mood. The accused, therefore took a knife from P. W. I so that he could defend himself. After he had parted company with P. W.1 and Boy Boy the deceased and his party t h r ew stones at and chased him. He ran into the yard of one 'Mapakiso and around her house with his assailants still in hot pursuit. As he ran out of 'Mapakiso's premises the accused noticed the deceased waiting outside the gate. The deceased who was holding a knife raised his hand and told him to hand o v er his knife. As he was about to run passed him the deceased stabbed him on the right cheek. However, t he accused later changed his story and told the court that as he went through the gate of Mapakiso's premises he had the occasion to look back and Kajang, one of the people who were chasing him, stabbed him with a knife on the right cheek. It was only after Kajang, had stabbed 5/ him that - 5- him that the accused noticed the deceased who was holding a knife and raising up his hand outside the gate leading from 'Mapakiso's premises. As he ran passed the deceased the accused drew out his knife and stabbed him. Assuming the correctness of his story that he was being hotly pursuit by a group of people who had been throwing stones at him; he had just been stabbed with a knife on the cheek and regard being had to the fact that it was at night, I must say I find it hard to believe that the accused who admittedly had a lot to drink at the party could have clearly seen that the deceased was holding a knife as he waited outside the gate of ' M a p a k i s o 's premises. In my view when he stabbed the deceased with a knife the accused was not under the apprehension that the former was threatening his life in the manner he wants this court to believe. The evidence of P. W. 1 was not very helpful in as much as he told the court that after h e, the accused and Boy Boy had left the party he parted their company before there was any fighting between the accused and the people who were following them. He did not therefore, know how the deceased had sustained the injury that brought about his death. It may perhaps be convenient to mention at this juncture that although he had testified as P. W.2 at the Preparatory Examination proceedings it was common cause that Lipholo Tsehlo had since died. It w a s, therefore, a physical impossibility to compel him to testify in this trial. In terms of the provisions of S.227 (1)(a)(i) read with (3) of the Criminal Procedure and Evidence A c t, 1981 his depositions at the Preparatory Examination proceedings were admitted and read as evidence in this trial. 6/ In as far as -6- In as far as it is relevant, the evidence of Lipholo was to the effect that on the night of the day in question, 31st October, 1987 he too attended the party which was held at the home of the deceased. According to Lipholo when he left the party the accused was walking with the deceased. They were in fact not in the best of moods as the accused had assaulted him (Lipholo) and the deceased was demanding an explanation for it. Shortly Se f o re the deceased walked away with accused, Lipholo had ellegedly noticed one Boy Boy arming the accused with a knife a fact which was, however, denied by both the accused and P. W.1 according to whom the latter was the p e r s on who had given the knife to the former. Be that as it may Lipholo testified that as the deceased walked away in the company of the accused he drew the attention of Kajang to the fact that t he accused had been armed with a knife. They then decided to follow the deceased and the accused so as to see what would happen. It was then that they noticed the deceased suddenly coming back and screaming that he had been stubbed by the accused. Lipholo and Kajang ran to and found the deceased injured. He had been fatally stabbed a wound below and the accused had ran away. They raised the alarm as a result of which many people including the chieftainess of the ares came to the scene of crime Lipholo confirmed that on the following day the body of the deceased was conveyed to the mortuary. As it has already been pointed out earlier, Lipholo has since died. For that reason his evidence could not to subjected to cross- person. examination. It has, therefore, less value than that of the accused 7/ I have, -7- I h a v e, h o w e v e r, found that on his own e v i d e n ce t he accused stabbed t he d e c e a s ed t he fatal injury. The q u e s t i on I have e a r l i er posted v i z. w h e t h er or not t he accused is t he p e r s on w ho had inflicted u p on t he deceased t he stab wound a n d , t h e r e f o r e, b r o u g ht about his death m u st be a n s w e r ed in t he a f f i r m a t i v e. Assuming t he c o r r e c t n e ss of my f i n d i n g, e a r l i er in t h is j u d g m e n t, t h at at t he t i me t he accused stabbed t he deceased t he former did not apprehend that his life was s e r i o u s ly e n d a n g e r ed by t he latter, it seems to me self d e f e n ce could not avail him. H o w e v e r, regard been had to t he fact t h at t he accused stabbed t he deceased in t he c o u r se of a fight I am not convinced that he could h a ve formed t he r e q u i s i te s u b j e c t i ve intention to k i l l. I must say in f a i r n e ss to him M r. M o k h o b o, counsel for t he c r o w n , c o n c e d ed to t h i s. In t he c i r c u m s t a n c e s, I h a ve no a l t e r n a t i ve but to c o me to the c o n c l u s i on that t he accused is guilty of c u l p a b le H o m i c i de and he is a c c o r d i n g ly c o n v i c t e d. Both my a s s e s s o rs a g r ee w i th t h is f i n d i n g. B. K. M O L AI JUDGE 16th F e b r u a r y, 1990. For Crown : M r. M o k h o bo For Defence : M r . K o l i s a n g, -8- S E N T E N CE CRI/T/55/S3 It has b e en r e m a r k ed by t he d e f e n ce counsel t h at t he q u e s t i on of s e n t e n ce is a l w a ys d i f f i c u lt b e c a u se no t wo cases can o v er h a ve t he same f a c t s. I e n t i r e ly a g r e e. The q u e s t i on of s e n t e n ce is a l so a d i f f i c u lt p a rt of a criminal trial b e c a u se t he Law g i v es us no d i r e c t i o n s. It is left e n t i r e ly in t he d i s c r e t i on of t he Judicial O f f i c e r. For o v i o us r e a s o ns t he s e n t e n c es will a l w a ys d i f f er a c c o r d i ng to t he d i s c r e t i o ns of d i f f e r e nt Judicial officers., For t he b e n e f it of t he a c c u s ed p e r s on I shall t a ke into a c c o u nt t he f a ct t h at Mr. M o k h o bo (for t he C r o w n) h as t o ld t he court t h at t he a c c u s ed has no p r e v i o us c o n v i c t i o ns - he i s, t h e r e f o r e, a first o f f e n d e r. In p u n i s h i ng h im t he c o u rt b e ar in m i nd t h at t h e re is no e v i d e n ce or i n d i c a t i on t h at t he a c c u s ed is a heart-hardened c r i m i n a l. I h a ve a l so b e en invited by M r. K o l i s a ng to c o n s i d er a n u m b er of f a c t o rs on b e h a lf of t he a c c u s ed p e r s o n. He h as e l o q u e n t ly t a b u l a t ed t h e m, and I find no n e ed to go o v er t h em a g a i n. I s h a l l, h o w e v e r, not t u rn a blind e ye to t he fact t h at the o f f e n ce with which t he a c c u s ed p e r s on has b e en c o n v i c t ed is a s e r i o us o ne c a l l i ng f or a c o m m e n s u r a t e ly s e r i o us s e n t e n c e. No m an h as a right to d e p r i ve h is f e l l ow h u m an of h is life. T he r e a s on is very s i m p le - t he life of a h u m an b e i ng is G o d - g i v en and for t h at r e a s on s a c r e d. This court t a k es a r a t h er d im view of p e o p le w ho lightly t a ke t he lives of o t h er h u m a n s. If t he a c c u s ed f e lt t h at t he d e c e a s ed had w r o n g ed him, he should h a ve t a k en h im to court and avoid t a k i ng t he law into h is o wn h a n d s. All in a l l, I c o n s i d er it n e c e s s a ry t h at t he a c c u s ed should be g i v en a s e n t e n ce t h at will s e r ve as a d e t e r r e nt - a s e n t e n ce 9 / w h i ch will -9- which will serve as a lesson to people of accused's mind that the courts of law do not encourage the sort of a thing that the accused person has been found guilty of It is for those reasons that I have come to the conclusion that the sentence that is appropriate for the accused person is that he goes to prison for five years, of which two years will be suspended for three years on conditions that the accused is not con- victed of any offence involving violence on other people, during the period of suspension, and following which conviction he is sentenced to serve a terra of imprisonment with no option of a fine i.e. the suspended sentence will only fall upon the accused if during the three years he were found guilty of killing or assaulting a person and the court, in sentencing him, does not give him a fine. In other words, he will have committed an offence as serious as the one I have con- victed him of today. I accordingly sentence the accused. B. K. MOLAI JUDGE. 16th February, 1990. For Crown : Mr. Mekhobo, For Defence : Mr. Kolisang.