R v Tsosane (CRI/T 46 of 96) [1998] LSCA 11 (3 February 1998)

1 C R I / T / 4 6 / 96 IN T HE H I GH C O U RT OF L E S O T HO In the matter b e t w e e n: R E X vs. M O L I B E LI T Š O S A NE J U D G M E NT To be delivered by the H o n o u r a b le M r. Justice G . N. M o f o lo on the 3 rd d ay of F e b r u a r y. 1 9 9 8. T he a c c u s ed M o l i b e li T © o s a ne w as c h a r g ed of m u r d er in that:- C o u nt 1 U p on or about the 14th d ay of D e c e m b e r, 1 9 94 a nd at or n e ar T h a b o ng in the District of M a s e r u, the said a c c u s ed unlawfully a nd intentionally killed ' M a s e l l o a ne T š o s a n e' C o u nt II ' U p on or a b o ut the 14th d ay of D e c e m b e r, 1 9 94 a nd at near T h a b o ng in the District of M a s e r u, the said a c c u s ed unlawfully a nd intentionally killed L e j o e t s a m a ng N k i a n e .' T he c h a r ge b e i ng r e ad to the a c c u s ed he h ad p l e a d ed not guilty. P . W .1 L e t h u s a ng M o l e fe (P. W.1 at the P. E.) s w o rn h ad stated that he w as 23 years old. He w as not e m p l o y ed then. He h ad attended school t h o u gh he h ad not g o ne b e y o nd standard V1 w h i ch he h ad p a s s e d. He w as literate in S e s o t ho but k n ew v e ry little English. He k n ew the t wo d e c e a s ed p e r s o ns but especially ' M a s e l l o a ne Tšosane w ho w as his m o t h e r. He h ad s e en L e j o e t s a m a ng before t h o u gh he did not quite k n ow h i m. He b o re his present s u r n a me b e c a u se he w as b om of a different m an b ut he h ad later j o i n ed the late ' M a s e l l o a ne T š o s a n e. He k n ew the a c c u s ed w ho w as Molibeli Tšosane a nd w as also called J e r e m i a h. A c c u s e d 's s u r n a me w as the s a me as his m o t h e r 's for his m o t h er w as m a r r i ed to accused's y o u n g er brother. H is late father a nd his m o t h er stayed at T h a b o ng n e ar Masithela's. He h ad stayed with t h e m. H is m o t h er h ad died on 13 N o v e m b e r, 1 9 9 4. On 13 N o v e m b er he w as g o i ng to w o rk a nd called at his m o t h e r 's p l a ce to s ay he w as g o i ng to w o r k. He h ad f o u nd the d o or ajar a nd he h ad s e en b l o od e v e r y w h e re - on the floor a nd s o me spluttered on the walls a nd he h ad f o u nd t wo people dead. He h ad rushed to the police. He h ad not k n o wn the other p e r s on w ho died w i th his m o t h er b ut got to k n ow that it w as N k i a n e. He h ad n ot l o o k ed at the d e ad p e r s o ns closely. He h ad h o w e v er o b s e r v ed w o u n ds on t h em a nd spent cartridges on the floor. On his m o t h er w e re three w o u n ds on h er chin, n e ck a nd breast w h e re a bullet w as lodged. S he w as n a k e d. S he w as on the b ed w i th h er feet h a n g i ng a nd lying on h er b a c k. As for N k i a ne he w as lying on the b ed a nd h ad a w o u nd on the a rm penetrating into the armpit. He w as also n a k e d. He h ad t o u c h ed the cartridges on the b ed on w h i ch they w e re lying. He h ad c l o s ed the d o or a nd w e nt to the police. T he police f r om T h a m ae h ad c o me a nd o p e n ed the d o o r. T h r ee p o l i c e m en h ad c o me on the s c e ne - 2 p o l i c e m en a nd a p o l i c e w o m a n. T he witness further testified b e f o re his m o t h er died s he h ad no quarrel w i th a n y b o dy s a ve a c c u s ed w ho a c c u s ed his m o t h er of all sorts of things like spilling w a t er at the gate. He also c o m p l a i n ed a b o ut the flats. H is m o t h er a nd a c c u s ed w e re next d o or neighbours. H is m o t h er h ad w on her c a se against the a c c u s ed c o n c e r n i ng the flats t h o u gh he h ad not b e en in court w h en the matter w as d i s p o s ed of. A c c u s ed a nd his m o t h er w e re s a y i ng t h ey did n ot k n ow his m o t h e r; t h ey w e re s a y i ng his m o t h er should vacate the flats b e c a u se s he w as a prostitute. He w o u ld n ot s ay h ow long his m o t h er h ad lived w i th h er h u s b a nd L e fa t h o u gh they h ad a child attending school. He w as present w h en her m o t h er w as buried a nd she h ad b e en b u r i ed in h er yard. A c c u s ed h ad refused to h a ve his m o t h er b u r i ed in a c c u s e d 's y a rd w h e re the Tšosane's are buried. A c c u s e d, his m o t h er a nd other relatives w a n t ed the b o dy e x h u m e d. T he Tšosane family h ad neither a t t e n d ed the s c e ne or burial. S i n ce the burial there w e re tenants in the flats a nd the late Lefa's child w as staying in the flats. All the tenants b ad since b e en expelled by the a c c u s ed w ho threatened to s h o ot t h em for, afterall, they h ad learned the o w n er of the flats w as shot. A c a se w as p e n d i ng b e t w e en h im a nd a c c u s e d. C r o s s - e x a m i n ed by M r. N t l h o ki for the d e f e n ce the w i t n e ss testified he h ad lost the c a se at the Magistrate's court a nd he h ad a p p e a l ed to the H i gh C o u r t. N o b o dy h ad attacked h im so far. It w as the s a me site hotly d i s p u t ed b e t w e en his m o t h e r, a c c u s ed a nd a c c u s e d 's m o t h e r. He a g r e es an Indian h ad s u ed his late m o t h er alleging the latter w a n t ed to eject the Indian. He c o u ld n ot s ay w h e t h er his late m o t h er w as s u ed jointly w i th the late L e f a. L e fa h a d, h o w e v e r, w on the c a se against the Indian. He s a ys he d o es n ot k n ow that there w e re several p e o p le disputing the site. He h ad stayed in the s a me y a rd a nd flat w i th his late m o t h er a nd they w e re separated by r o o m s. T he night his m o t h er w as killed he h ad h e a rd no g un report a nd he h ad c o me h o me a b o ut 3 a.m. as he w as on night shift. He h ad not raised an a l a rm although the police post is n e a r b y. He c o u ld n ot raise an a l a rm b e c a u se he s u s p e c t ed the a c c u s ed to be the culprit. Police h ad a s k ed h im w ho he suspected a nd he h ad said a c c u s ed on a c c o u nt of h a v i ng a dispute w i th his m o t h e r. H is suspicion w as b a s ed on the fact that his m o t h er h ad w on the case. T he police h ad not a s k ed h im a b o ut the m an killed w i th his m o t h e r. As far as he w as c o n c e r n ed a c c u s ed killed N k i a ne to a v o id identification or for fear that N k i a ne w o u ld assault h i m. He s a ys he k n o ws that a c c u s ed is a soldier. He s a ys w h en the a l a rm w as raised t h ey c o u ld s ee the a c c u s ed for he w as present. T he police h ad raised the alarm on c o m i ng to the s c e n e. He d o es n ot think a ny other p e r s on w o u ld h a ve killed his m o t h er b e c a u se w h e n e v er a c c u s ed quarrelled w i th his m o t h er he threatened her w i th death. P ut to h im a c c u s ed m a de no s u ch threats he says he did a nd h ad g o ne further to say his m o t h er h ad sold stones t h o u gh c a s es w e re d e c i d ed in h er favour. T he witness a g r e es he is a b r a ve p e r s o n. He s a ys he is n ot p r o ne to m a ke quick decisions or to arrive at such conclusions. He h ad not t a k en kindly to a c c u s ed a nd his m o t h er not attending the funeral. B e er at the flats w as sold o n ly during the d a y. He agrees there w e re m a ny p e o p le during the d ay b ut n ot at nighttime. In a n s w er to questions by an A s s e s s or he s a ys the t wo d e c e a s ed w e re f o u nd on the s a me b ed a nd their h e a ds w e re facing the s a me direction. H is m o t h er w as not lying with the d e c e a s ed m a n. A c c u s ed h ad a firearm a nd he h ad s e en it; they w e re a big a nd a small gun. A big g un w as taken a w ay by the soldiers. He s a ys b e t w e en 9th - 13th N o v e m b e r, 1 9 94 there w as a quarrel b e t w e en his m o t h er a nd a c c u s e d. In m e a s u r i ng the site a c c u s ed a nd his sister h ad c o me on the s c e ne a nd insulted his m o t h e r. As he c a me into the r o om d e c e a s e d s' clothing w as nicely p ut on a chair. In s e e m ed like they w e re sleeping together. P . W .2 T p r. P a n e ng ( P . W .7 at the P. E.) s w o rn stated: He w as a m e m b er of the L . M . P. a nd in 1 9 94 he h ad w o r k ed at T h a m a e 's police post. He k n ew the a c c u s ed b e f o re court. He h ad m et h im in c o u r se of his duties in 1 9 9 4. He h ad m e et h im at T h a m a e ' s. It w as in D e c e m b e r, 1 9 9 4. He s a ys what happened is that accused came to him while he was on duty. He reported he had a dispute with some person though he could not remember the name. The nature of the dispute w as w i th a lady w ho w a n t ed to sell a site a nd he ( a c c u s e d) disputed this a nd w a n t ed police advise lest he s h o u ld go w r o ng as the m a t t er w as in court. He h ad not told h im the nature of m i s t a k es he (the a c c u s e d) m i g ht c o m m i t. A c c u s ed w as o t h e r w i se n o r m a l. He s a ys he w as s e e k i ng a d v i ce f r om h im a nd he told a c c u s ed the best c o u r se w as to go to court. T he c a s e, a c c o r d i ng to the witness, w as lying at M a t a la L o c al C o u r t. He h ad n ot r e d u c ed the explanation to writing. He h ad heard nothing thereafter a nd h ad not m et a c c u s ed to date. A c c u s ed h ad said the site w as at T h a b o n g, M a s e r u. He h ad h e a rd of fatalities at T h a b o ng three- four d a ys a c c u s ed h ad b e en to h i m. T he deaths h ad o c c u r r ed on the s a me site a c c u s ed h ad described to h i m. C r o s s - e x a m i n ed by M r. N t l h o ki the w i t n e ss testified the a d v i se a c c u s ed s o u g ht a nd the advise he h ad g i v en w e re of no c o n c e rn to h i m. No re-examination by C r o w n. P . W .3 T p r. M o l oi ( P . W .4 at the P. E.) s w o rn stated at present s he w as stationed in M o k h o t l o ng a nd in 1 9 94 s he h ad b e en stationed at T h a m a e 's Police Station a nd so w as the c a se in D e c e m b e r, 1 9 9 4. S he k n ew the a c c u s ed before court. S he h ad attended the s c e ne of c r i me on 15 N o v e m b e r, 1 9 9 4. S he c a me to k n ow of the matter for P . W . I h ad c o me to the police to m a ke a report - s he points at P . W. 1. T he report w as that his m o t h er a nd a m a le friend h ad b e en killed a nd they h ad g o ne to the scene. S he h ad b e en w i th 2 nd Lt. Seutloali, Sgt. R a b o qa w ho are senior police officers. F i ve p o l i c e m en h ad g o ne to the s c e n e. T h ey w e nt to deceased's h o me at a place near Masithela's. P . W. 1 h ad a c c o m p a n i ed t h em to the place. T he place faces E a st a nd there is a r o om facing the m a in r o ad b e i ng w h e re the d e c e a s ed w a s; on arrival a shell w as f o u nd n e ar the d o o r; it l o o k ed like the d o or h ad b e en forced o p en - the r e a s on b e i ng that the lock w as d a m a g e d. T h e re w as a b ed n e xt to the d o or a nd on the b ed w e re t wo d e ad p e o p le - a m a le a nd a f e m a l e. T he female h ad b e en left n a k ed a nd s he w as lying on the b e d; s he w as lying on her b a ck facing the wall a nd her feet w e re on the floor. S he w as b l e e d i ng t h r o u gh the nose. S he h ad a g u n s h ot w o u nd on her right c h e e k; there w as a n o t h er w o u nd on the chest a nd on the right breast; there w e re no other w o u n d s. N e ar the pots w as another shell. As for the m a le p e r s o n, he w as lying on the b ed n a k ed lying on his s t o m a ch w i th o ne leg stretched on the b ed a nd a n o t h er leg on d e c e a s e d 's t u m m y; he w as facing the wall. He h ad o ne w o u nd on the chest. All w o u n ds w e re g un shots a c c o r d i ng to her observation as a p o l i c e w o m a n. S he says there w as a shell w h e re the p o ts w e re - it w as a d e ad shell, a 9 mm shell; there w as another o ne near the b ed a nd w as also a shell. S he s a ys the o ne s he f o u nd on entering w as also a 9 mm calibre shell. W h en r e m o v i ng the c o r p s es f r om the b ed they h ad also f o u nd a bullet - a 9 mm o ne f o u nd on the b e d. T h e re w as also h o me b r e w ed b e er in a d r um a nd there w as also b l o od on the b e d. T h ey h ad r e m o v ed the c o r p s es a nd taken t h em to the m o r t u a ry for p o s t m o r t em e x a m i n a t i o n. This h ad not b e en the e nd of her investigation for after their investigation they h ad g o ne to the a c c u s ed w ho h ad surrendered h i m s e lf to T p r. Putsoa. T h o u gh s he h ad m et a c c u s ed before, she h ad not m et h im again. S he h ad m et the a c c u s ed b e f o re the fatalities at T h a m ae Police Station. ' M a s e l l o a ne ( d e c e a s e d) w as c o m p l a i n i ng saying a c c u s ed says s he ( a c c u s e d) s h o u ld leave a site left her by h er late h u s b a n d. A c c u s ed h ad t h en b e en c o n f r o n t ed w i th d e c e a s e d. A c c u s ed w as s a y i ng d e c e a s ed h ad no right to o c c u py the site for the d e c e a s ed w as n ot m a r r i ed a nd t h ey h ad b e en a d v i s ed to go to court. ' M a s e l l o a ne ( d e c e a s e d) h ad said s he h ad a m a r r i a ge certificate a nd I h ad a d v i s ed h er to t a ke it to court b ut a c c u s ed w as not satisfied w i th o ur ruling thinking we w e re taking sides w i th the d e c e a s e d. T h ey h a d, h o w e v e r, insisted the matter h ad n o t h i ng to do w i th the police a nd b e i ng a civil c a se h ad to go to M a t a la L o c al C o u r t. T h ey h ad k e pt the shells as exhibits a nd w h en s he left T h a m ae Police Station on 15 S e p t e m b e r, 1 9 97 the shells w e re still at T h a m ae P o l i ce Station. T he d e ad bullet h ad also b e en sent to ballistic e x p e r ts a nd returned to the station. Sgt. L e c h e sa h ad d i ed in 1 9 96 a nd b e f o re t h en h ad b e en in c h a r ge of the C. I. D, d e p a r t m e n t. Sgt. L e c h e sa h ad participated in the investigations h a v i ng g o ne to M a k o a n y a ne in c o n n e c t i on w i th the a c c u s e d. S he s a ys after d e c e a s e d 's d e a th i.e. ' M a s e l l o a ne s he h ad noticed that the m a t t er h ad g o ne to court h a v i ng learned this f r om P . W . 1. T h o u gh s he h ad s e en no p a p e rs s he h ad l e a r n ed that there h ad b e en a dispute. C r o s s - e x a m i n ed by M r. Ntlhoki for the d e f e n ce the w i t n e ss testified that s he w as a w a re there h ad b e en a P . E. in this m a t t er a nd s he h ad n ot k n o wn w h at the result of the civil dispute w a s. S he s a ys e v en if s he w as a m e m b er of an investigating t e am o ne m ay not k n ow everything b e c a u se duties a s s i g n ed are n ot the s a m e. S he s a ys s he w as n ot a s k ed at the P . E. w h e t h er s he w as part of the investigating t e am it is only n ow a nd h e n ce h er a n s w e r. Put to her h er story that a c c u s ed c a me to h er w as n ot part of h er t e s t i m o ny at the P. E., s he s a ys s he h as c o me by the story as a result of the question s he w as asked. S he says s he is an e x p e r i e n c ed p o l i c e w o m an t h o u gh s he h as n ot g i v en m u ch e v i d e n ce in courts of l a w. S he h ad disclosed e v e r y t h i ng a nd left nothing. S he h ad not said d e c e a s ed b l ed t h o u gh her nostrils at the P . E. b e c a u se s he h ad not b e en a s k ed this; this m i g ht h a ve e s c a p ed h er m i nd to m e n t i on at the P . E. P ut to her at the P. E. s he h ad not m e n t i o n ed b l o od on the b ed or a n y w h e re s he agrees s a y i ng s he w as m e n t i o n i ng the fact f o l l o w i ng q u e s t i o ns put to her. T he w i t n e ss g o es on to s ay s he h ad no m e a ns of telling w h at e v i d e n ce w as required of h er at the P . E. Put to h er a c c u s e d 's attitude as portrayed by h er c a n n ot be true s he s a ys s he can't s ay w h a t 's not true. It c o u ld w e ll be true a c c u s ed w as not at T h a m a e 's in 1 9 94 for there h ad b e en a long p a s s a ge of t i me for hers w as only an estimation t h o u g h, w h en s he c a me to the flats p e o p le w e re already there. No p o l i c e m an h ad raised an alarm. S he s a ys s he is c o n c e r n ed m o re w i th her e v i d e n ce than other p e o p l e 's e v i d e n c e. A s k ed w h e t h er P . W . I h ad told her he h ad t o u c h ed s o me of the exhibits s he s a ys P . W. 1 h ad said nothing a b o ut this. S he s a ys w h en t h ey c a me on the s c e ne the d o or w as ajar. P . W. 1 h ad told t h em he h ad f o u nd his m o t h er a nd a c o m p a n i on d e a d. S he c o u ld not s ay w h e t h er a ny other p e r s on h ad c o me on the s c e n e. P . W . I h ad n ot said to the police w ho he s u s p e c t ed a nd the r e a s o ns thereof. S he d e n i es police h ad s i m p ly f o l l o w ed P. W.1's report. S he c o u ld not tell w h e t h er P . W . I s u s p e c t ed a c c u s ed b e c a u se of the civil dispute with P . W . 1 's m o t h e r. S he d o es n ot k n ow w h e t h er t he s a me d ay P . W .1 m a de a report to T h a m ae police the police c o n t a c t ed a c c u s ed at M a k o a n y a ne b a r r a c k s. S he denies this w as the o n ly investigation the police m a de relating to accused. S he says other than ballistic tests n o t h i ng m o re w as d o n e. S he s a ys w h en s he c o n f r o n t ed a c c u s ed w i th the Indian it h ad n ot b e en said that there w as a p e n d i ng c a se b e t w e en d e c e a s ed ' M a s e l l o a ne a nd the I n d i an n or h ad the Indian said he w as ejecting ' M a s e l l o a ne f r om the site. P ut to h er there w as no c a se b e t w e en a c c u s ed a nd ' M a s e l l o a ne the c a se h a v i ng b e en b e t w e en ' M a s e l l o a ne a nd the Indian s he s a ys a c c o r d i ng to p a p e rs filed in the d o c k et there w as s u ch a case. P ut to her a c c u s ed h ad not surrendered h i m s e lf b ut h ad r e s p o n d ed to a call to report himself at the police station s he says as s he w a s n 't there herself s he h as no a r g u m e nt w i th w h e t h er or n ot a c c u s ed s u r r e n d e r ed h i m s e lf S he further s a ys it c an be no surprise for a c c u s ed to h a ve b e en called to the police post at T h a m a e 's especially in v i ew of the fact that if he h ad b e en called there c o u ld be n o t h i ng surprising as he h ad b e en called there by police before. In a n s w er to an assessor the w i t n e ss said t h ey c o n f e r r ed in c o u r se of an investigation a nd s he h ad not hinted s he h ad c o n f r o n t ed ' M a s e l l o a ne w i th a c c u s e d. P . W .4 D / T r p. P u t s oa ( P . W .6 at the P. E.) s w o rn h ad testified he w as stationed at T h a m ae police station. He h ad w o r k ed there f r om 1 9 93 a nd k n ew P . W .3 herein with w h om he w o r k ed at T h a m ae Police station. He also k n ew D / S g t. L e c h e sa w ho w as late. W h en D / S g t. L e c h e sa p a s s ed a w ay he ( D / S g t. L e c h e s a) w as stationed at M a k o a n y a n e. In 1 9 94 D / S g t. L e c h e sa w as at T h a m a e ' s. He h ad left T h a m a e 's police station in 1 9 9 6. He k n ew a c c u s ed b e f o re court. He h ad s e en h im at T h a m a e 's Police Post. He h ad w a n t ed h im for interrogation relating to the d e a th of t wo p e o p le - ' M a s e l l o a ne Tšosane a nd L e j o e t s a m a ng N k i a n e. He thinks it w as 5 January, 1 9 9 5. On arrival he h ad told a c c u s ed he w as s u s p e c t ed of killings a nd an explanation h ad b e en r e q u e s t ed f r om h i m. He h ad b e en told he w as free to m a ke an e x p l a n a t i on but that if he did it m i g ht be u s ed in his f a v o ur or against h i m. A c c u s ed h ad also b e en a s k ed as to the t y pe of g un he w as using b e i ng entitled to the entitled to the u se of an official g u n. He h ad said he h ad a 9 mm calibre - an a u to pistol. He h ad then g i v en h im a c h a r g e. He h ad b e en a s k ed to l e a ve the g un to enable investigations a nd he h ad left it. He s a ys he sees the tab w h i ch w as written by h i m. He h ad put the tab i m m e d i a t e ly a c c u s ed h ad left. He h ad put the tab i m m e d i a t e ly a c c u s ed h ad left. He h ad written on it ' R . L . M . P. 3 9' Exhibit label a nd E x h. N o. 1 2 / 97 - Station T h a m a e; c h a r g e: M u r d er - R ex v. O. Tšosane; also P . B. N o. 3/1/95 w i th serial N o . 3 4 7 0 8. He s a ys this is a Parabella pistol calibre 9 m m. He h ad t h en g i v en the g un to Sgt. L e c h e sa for c u s t o dy a nd carrying out investigations. W h en the g un w as returned to t h em he h ad s e en it. He h ad also s e en the g un at the P. E. He h ad taken the g un at a t i me Sgt. L e c h e sa h ad a l r e a dy p a s s ed a w a y. T he g un h ad b e en t a k en to M a k o a n y a ne for tests. W h en a c c u s ed a p p e a r ed b e f o re h im he h ad s e e m ed agitated. On parting a c c u s ed h ad said n o t h i ng to h i m. Several m e s s a g es h ad b e en m a de to h im to report to t h e m. W h en a m e m b er of the military force is w a n t ed is he c o n t a c t ed t h r o u gh a delegation w o r k i ng w i th the police. T he delegation is a s k ed to bring the s u s p e ct or to h a ve h im report. He h a n ds in the g un w h i ch is m a r k ed E x h. 1. C r o s s - e x a m i n ed by M r. Ntlhoki for the d e f e n ce the w i t n e ss a g r e es the d e l ay in reporting by a c c u s ed w as c a u s ed by faulty c o m m u n i c a t i on b e t w e en the police a nd the special liaison military unit. It w as true certain p r o c e d u r es w e re to be f o l l o w ed before confronting a soldier for t h ey are g i v en special treatment. He c o u ld n ot s ay w h e re a c c u s ed w as on 14 D e c e m b e r, 1 9 94 n or c an he s ay w h e re the p r e v i o us d ay being 13 D e c e m b er 1 9 94 he w a s. E x h. 1 h ad at all material t i m es b e en safely k e pt at T h a m ae police station. He h ad k n o wn the g un w as g o i ng to be u s ed as an exhibit. He h ad b e en authorised to k e ep the g un t h o u gh he h ad h a n d ed it o v er to Sgt. L e c h e sa for safe keeping. He h ad said after seizing the g un he h a n d ed s a me to Sgt. L e c h e s a. He says it is correct to s ay at all material t i m es the g un w as in c u s t o dy of Sgt. L e c h e s a. He says he h ad not spelled out the serial n u m b e r s. He s a ys o w i ng to a m i s u n d e r s t a n d i ng he h ad not reflected the serial n u m b e r. P ut to h im the serial n u m b er is inaccurate he s a ys that m ay a p p e ar so as he g a ve the serial no as 3 4 7 08 w h e r e as the b o t t om o ne is B 3 4 7 0 8. He s a ys the serial n o. he g a ve court d o es h a ve a " B ". P ut to h im the g un he t o ok f r om a c c u s ed did n ot h a ve a " B" he agrees. He nevertheless denies he is talking a b o ut t wo g u n s. He s a ys the serial n o. on the tag h as no " B ". He h ad m a de a statement at the P. E. He a g r e es he h ad n ot told the court at the P. E. he h ad taken a g un w i th an e m p ty m a g a z i n e. P ut to h im the police at T h a m a e 's h ad taken accused's g un he agrees. As to the n u m b er of m a g a z i n es the witness says a c c u s ed h ad said he h ad t w o. He says he h ad n ot a s k ed a c c u s ed a b o ut m a g a z i n e s. T h at a c c u s ed h ad a m a g a z i ne w i th life bullets the w i t n e ss s a ys he did n ot see t wo l o a d ed m a g a z i n e s. T he w i t n e ss denies a c c u s ed g a ve h im t wo l o a d ed m a g a z i n es @ 15 r o u n d s. T he w i t n e ss a g r e es he said he w as n ot interested in life bullets h e n ce w hy the w i t n e ss g a ve a c c u s ed life bullets. P ut to the w i t n e ss the m a g a z i ne before court is not a c c u s e d 's for a c c u s ed h as t wo life l o a d ed m a g a z i n es he d o e s n 't quite d e ny t h o u gh he s a ys the m a g a z i ne b e f o re court is o ne of the m a g a z i n e s. T he witness d e n i es there is anything strange in giving b a ck life r o u n ds to the a c c u s e d. He could n ot r e m e m b er h ow m a ny r o u n ds he g a ve to a c c u s ed - c o u ld h a ve b e en five but certainly not fifteen. He s a ys it c a n n ot a p p e ar a nd there is nothing to s h ow w h en shells are fired f r om a g u n. T he w i t n e ss w e nt on to s ay he s aw o n ly o ne m a g a z i n e. He s a ys he d o e s n 't k n ow w h e t h er a c c u s ed h as t wo m a g a z i n es for a c c u s ed s h o w ed h im only o ne m a g a z i n e. He says he is trained in the use of firearms. He could not d e ny he h ad not d e m a n d ed a licence. He says if he h ad m ay be the licence w o u ld s h ow the n u m b er of r o u n ds he w as entitled to per year for a licence reflects the n u m b er of rounds he is entitled to though not necessarily the n u m b er he has. He says he cannot d e ny that the t wo m a g a z i n es h ad 30 bullets plus an extra 2 0. T h at he should h a ve taken stock of accused's a m m u n i t i on to determine the n u m b er spent he says these w e re not important issues so far as the case w as concerned. He says the investigations suggested w e re worthless for all he w a n t ed w as w h e t h er accused's g un h ad a m m u n i t i on Put to the witness a c c u s ed h ad b e en r e n e w i ng his licence because the g un w as at all times with accused, the witness says he cannot d e ny for in order to r e n ew a licence o ne m u st p r o d u ce the licence along with the g u n. T he witness g o es on to say o ne m ay r e n ew o n es licence without a g un so long as the authorities k n ow the whereabouts of the g u n. T he witness says he w o u ld d e ny that accused's licence authorised h im to h a ve 50 r o u n ds of a m m u n i t i o n. He could not d e ny a c c u s ed w as licensed for the y e ar 1 9 95 - 1 9 9 7. T h at the C o m m i s s i o n er of Police w as satisfied accused h ad not b r e a c h ed conditions of the licence the witness says he could well h a ve though the g un in a ny event is a c o m m on o n e. T he witness agrees a m m u n i t i on for the g un c an be u s ed in a ny other g u n. He says a c c u s ed did s e em worried t h o u gh it could h a ve b e en for other reasons. R e - e x a m i n e d. T he witness testified a licence is issued automatically so long as o ne is able to h a nd in the g un a nd licence. He says it is n e v er c h e c k ed w h e t h er previous a m m u n i t i on is exhausted. He agrees the licence is conditional in that o ne c a n n ot shoot without g o od cause. He thinks a person is to account for u s ed ammunition. He had not c o me across firearms with similar serial n u m b e r s. He says there are t wo serial n u m b e rs on o ne side. O ne serial n u m b er w as preceded by the latter " B" and the other serial n u m b er h ad no n u m b er a nd the n u m b e rs w e re on the s a me side of the firearm. He says the charge he g a ve accused and the licence w e re not related. W h en an exhibit is seized by police it is given to a senior officer for custody. He says he seized the g un for the sake of sending s a me for ballistic tests. In answer to an assessor's questions he says w h en he s aw accused on the d ay he reported to h im he w as seeing him for the first time. T h ey h ad m et subsequently but nothing h ad transpired. H is pocket diary w as lost. He could not tell any physical differences in accused b e t w e en the d ay he m et h im for the first time and n ow because then accused w as talking a nd he is silent n o w. He says according to w h at he w as taught the n u m b er nearer the gun's bolt is the o ne to quote. By Court: T he witness testified he took the g un before court from accused. He says the accused acknowledged the g un as his. He h ad not satisfied himself that it w as accused's gun. He says a licence is given t wo magazines. He h ad not asked accused h ow m a ny bullets he had used. He says a licence c an be re-issued without a g un so long as o ne has no criminal conviction. He says while a matter is under investigation a licensing authority is not stopped from issuing a licence. He says he had not reported to the licensing authority that a case involving accused's g un w as being investigated. He h ad not alerted the licensing authority not to re-issue accused's licence for this w as for his senior officer to take up. He says it does h a p p en to report to the C o m m i s s i o n er that such a matter is under investigation. C r o wn Counsel applies that the late D/Sgt. Lechesa's deposition be admitted in evidence. A l t h o u gh he d o es n ot a d m it the truth of the d e p o s i t i on M r. N t l h o ki for the d e f e n ce h as no objection the deposition b e i ng a d m i t t e d. T he deposition b e i ng a d m i t t ed as e v i d e n ce it is r e ad into the record. M r. S a k o a ne applies to h a ve P . W .3 recalled. P . W .3 recalled s w o rn states s he f o u nd 3 shells in d e c e a s e d 's h o m e. S he h ad h a n d ed the shells to D / S g t. L e c h e sa for ballistic e x a m i n a t i o n. T h ey h ad b e en returned to h im f r om the late Sgt. L e c h e s a. S he h ad k e pt t h em in the exhibit r o o m. T h ey w e re still in the exhibit r o om in a w h i te e n v e l o p e. At the P . E. they h ad b e en exhibited. S he h ad t h em w i th h er a nd w e re c o n t a i n ed in a w h i te e n v e l o p e. T he e n v e l o pe h ad a description on it. T he h a n d w r i t i ng t h e r e on w as W a r r a nt Seutloali's w ho w as in c h a r ge at the t i me at T h a m a e 's police station. T he other h a n d w r i t i ng w as hers, s he h ad written E x h. No 1 3 2 / 94 on the e n v e l o p e. 1 32 w as serial n o. a nd 94 w as the year. S he h ad also written R. v. Tšosane. A f t er the exhibits returned f r om ballistic tests s he h ad p ut t h em in the e n v e l o p e. S he s a ys w h en s he p ut t h em in the e n v e l op s he at the s a me t i me w r o te on the e n v e l o p e. T he w i t n e ss s a ys the original e n v e l o pe w as b r o w n. S he s a ys s he identifies the shells by their n u m b e r s. E x h. 1 3 2 / 94 w as also reflected in the exhibit register as w e ll as the n a me of the suspect. S he s h o ws the 3 shells a nd o ne d e ad bullet b e i ng the o n es s he f o u nd on the scene. T h ey are h a n d ed in as exhibits a nd collectively m a r k ed E x h. 2. C r o s s - e x a m i n ed by M r. N t l h o ki the w i t n e ss s a ys s he h ad n ot forgotten to bring the exhibits the other d ay s he g a ve e v i d e n c e. S he s a ys the exhibits w e re still with her a nd s he h ad not p r o d u c ed t h em b e c a u se s he h ad n ot b e en led to the effect. S he says w h en she w as a s k ed w h e t h er she h ad left anything s he h ad agreed b e c a u se she did not k n ow w h at w as in the counsel's m i n d. In connection with the e n v e l o pe all s he w a n t ed to say w as it w as an airmail e n v e l o p e. S he did not think there w as a ny other thing. S he says she h ad not disclosed the OB b e c a u se s he w as not a s k ed a b o ut it. T he last line on the e n v e l o pe w as 'Exhibits' but it w as W a r r a nt Officer Seutloali's handwriting. T h at W a r r a nt Officer Seutloali h ad written 3 d e ad shells only a nd not a d e ad shell w as an error. S he h ad fetched the bullets. Shells a nd bullets w e re w r a p p ed in a toilet p a p er a nd the toilet p a p er d o es not f o rm part of the exhibits. S he disagrees that the e v i d e n ce is p a t c h ed u p. S he says there is no significance for time on the exhibit w h i ch could h a ve b e en written for the fun of it. T he b r o wn e n v e l o pe w as not important a nd s he h ad w a n t ed to k e ep the exhibits in the aerial envelope. Part of the e v i d e n ce w as the shells a nd a d e ad bullet. S he disagrees she h as t h r o wn a w ay the evidence. S he says the b r o wn e n v e l o pe w as torn a nd she w a n t ed to replace it. S he says she w a s n 't a w a re the criminal record w o u ld be w a n t ed in court t h o u gh if necessary she c o u ld h a ve it p r o d u c e d. S he s a ys the writing thereon is hers. S he denies the writing is not hers or that it could h a ve b e en a n y b o d y 's writing or that there is anything suspicious a b o ut the exhibits. S he says it is up to counsel to require a re-examination of the exhibits. S he says the e n v e l o pe is not a s e m b l a n ce of officialdom in that it is police property. S he says police stationary d o es not h a ve to b e ar police label or s t a m p. In re-examination the witness says W a r r a nt Officer Seutloali h ad died in 1 9 9 5. By an A s s e s s or the witness said s he h ad joined the force in 1 9 8 2. S he h ad b e en attached to the C. I. D. since 1 9 9 3. S he h ad no e x p e r i e n ce of ballistic tests t h o u gh she h ad p a s s ed s o me exhibits for tests. T h e re w e re identifying m a r ks t h o u gh these w e re k n o ws to officer T e l u k h u n o a n a. S he s a ys exhibits labels w e re the o n ly m a r ks by w h i ch s he c o u ld identify the exhibits. P . W .5 ' M a m o t l a t si Tšosane ( P . W .2 at the P. E.) s w o rn h ad stated that s he lived at U p p er T h a m a e. S he k n ew a place called T h a b o ng n e xt to L e k h a l o a n e n g. S he w as married in 1 9 6 0. S he k n ew the a c c u s ed as Molibeli Tšosane. T h ey w e re related. He w as related to her h u s b a n d. H is father a nd her h u s b a n d 's m o t h er w e re bom of the same parents. Upper Thamae was not far from Thabong. Could be ½ kilo m e t re f r om the c o u r t r o o m. S he k n ew ' M a s e l l o a ne Tšosane in h er lifetime. T h ey w e re related by marriage. ' M a s e l l o a ne w as m a r r i ed to L e fa Tšosane w ho is a c c u s e d 's y o u n g er brother. S he c o u ld not r e m e m b er w h en t h ey w e re m a r r i ed t h o u gh she w as married after herself M a r r i a ge b e t w e en L e fa a nd ' M a s e l l o a ne w as solemnized in church t h o u gh she w as not present w h en it t o ok place. M a r r i a ge h ad been solemnized when they were already staying together. W h en ' M a s e l l o a ne died in N o v e m b e r, 1 9 94 s he h ad a c a se w i th a c c u s ed disputing o v er rented flats. ' M a s e l l o a ne leased s o me flats a nd stayed in o n e. B e f o re L e fa died these flats w e re leased by L e fa w h i le staying w i th ' M a s e l l o a n e. B e f o re L e fa died there w as no quarrel b e t w e en L e fa a nd a c c u s e d. T he c a se b e t w e en a c c u s ed a nd ' M a s e l l o a ne w e nt to court. T he family h a d n 't dealt w i th the matter. S he h ad attended the magistrate's court here. It c o u ld h a ve b e en in 1 9 9 4. S he k n ew a c a se at M a t a la L o c al C o u rt w h i ch c o n c e r n ed the flats. A c c u s ed w as suing ' M a s e l l o a ne but she h ad not attended. S he k n ew of s u ch a c a se before ' M a s e l l o a ne died. A f t er suing ' M a s e l l o a ne a c c u s ed w as n ot s p e a k i ng to her. S he h ad d o ne Standard VI at school a nd c an count. C a s es w o u ld h a ve started in 1 9 9 4. A c c u s e d 's m o t h er w as n ot talking to her either. S he h ad g i v en no e v i d e n ce in a ny of the cases. As far as she w as c o n c e r n ed b e t w e en a c c u s ed a nd his m o t h er on the o ne h a nd a nd ' M a s e l l o a ne on the other, ' M a s e l l o a ne is entitled to the flats as the flats w e re the p r o p e r ty of h er h u s b a n d. A c c u s ed lived in his o wn h o u s e. B e f o re ' M a s e l l o a n e 's d e a th a c c u s ed a nd ' M a s e l l o a ne h ad a c a se b ut on the d e a th of ' M a s e l l o a ne a c c u s ed a nd his m o t h er h ad n ot a t t e n d ed the funeral. W h en L e fa died a c c u s ed a nd his m o t h er h ad attended the funeral a nd p e r f o r m ed all n e c e s s a ry rituals. W h en ' M a s e l l o a ne d i ed s he h ad s e en a c c u s ed at his h o me p e e r i ng t h r o u gh a w i n d o w. C r o s s - e x a m i n ed by M r. Ntlhoki for the d e f e n ce the w i t n e ss d e n i es there w as no case b e t w e en a c c u s ed a nd ' M a s e l l o a ne w h en the latter d i ed in 1 9 9 4. S he d e n i es a p e n d i ng c a se w as b e t w e en ' M a s e l l o a ne a nd an Indian. S he d e n i es C . C . 9 4 2 / 88 in the S u b o r d i n a te C o u rt w as ' M a s e l l o a n e 's case. S he c o u ld n ot tell w h e t h er the Indian w a n t ed to eject ' M a s e l l o a ne a nd a c c u s e d 's m o t h e r. S he s a ys the Indian h ad a c a se against ' M a s e l l o a n e. S he s a ys the Indian c a se h ad e n d ed during L e f a 's lifetime. T he dispute b e t w e en the Indian a nd L e fa affected the flats. S he says the c a se at M a t a la L o c al C o u rt w as a criminal case. S he d e n i es s he d o es not like a c c u s e d 's m o t h er w ho is the oldest m e m b er of the family a nd r e g a r d ed as o ne of several in-laws. S he agrees she h ad marital p r o b l e ms a nd agrees they are n ow living apart w i th her h u s b a n d. S he disagrees a c c u s e d 's m o t h er tried to reconcile t h e m. S he denies s he w as the guilty party in h er quarrel w i th h er h u s b a n d. S he s a ys s he h as n e v er s h a r ed her marital p r o b l e ms w i th a c c u s ed a nd his m o t h e r. S he d e n i es a c c u s ed h as h ad a n y t h i ng to do w i th h er children or family p r o b l e m s. S he s a ys it is untrue s he h as a c c u s ed M o t š o a ri Tšosane for m e d d l i ng in h er family affairs. S he agrees n ot all m e m b e rs of the Tšosane family h ad a t t e n d ed ' M a s e l l o a n e 's funeral. S he disagrees ' M a s e l l o a ne h ad a grave p r e p a r ed for h er at the c o m m u n al g r a v e y a r ds a nd d e n i es all s u ch a r r a n g e m e n ts w e re m a de by a c c u s e d. S he s a ys the chief of Q o a l i ng w o u ld be surprised to h e ar that ' M a s e l l o a n e 's g r a ve at the c o m m u n al c e m e t e ry h ad b e en filled b e c a u se P . W . I o b j e c t ed to h er b e i ng buried there. P ut to her b e c a u se the family w as split c o n c e r n i ng ' M a s e l l o a n e 's burial a nd others h ad w a t c h ed f r om the sidelines s he s a ys that w as a c c u s e d 's c h o i c e. S he d e n i es a c c u s ed w as in a ny w ay responsible for placing ' M a s e l l o a ne at the m o r t u a ry for this w as d o ne by the police a nd all s he k n ew w as that a c c u s ed t o ok the responsibility of expelling p e o p le w ho w e re d i g g i ng the g r a ve n e xt to ' M a s e l l o a n e 's h u s b a n d. T he witness insists on 14 D e c e m b e r, 1 9 94 a c c u s ed w as not at M a k o a n y a ne b a r r a c ks b ut p e e p i ng through his w i n d o w. S he denies a c c u s ed w as fetched f r om the b a r r a c ks by T h a b e l a ng Tšosane. S he d e n i es h er e v i d e n ce r e v o l v es on hatred a nd ill-feeling. R e - e x a m i n ed the w i t n e ss s a ys the d ay d e c e a s ed w e nt to the m o r t u a ry is the d ay a c c u s ed h ad p e e p ed through the w i n d o w. T h e re h ad b e en m a ny p e o p le a r o u nd a nd d e c e a s e d 's h o u se w as o p e n. In a n s w er to an assessor's question the witness s a ys a c c u s ed is a soldier. He h ad not s e en h im driving a nd a c c u s ed is not entitled to d e c e a s e d 's childrens' rights. S he h ad f o u nd police on the s c e ne a nd did not k n ow w h e t h er cattle h ad b e en p a id for ' M a s e l l o a n e. W h en L e fa died ' M a s e l l o a ne h ad w o rn a m o u r n i ng cloth. By C o u rt the witness testified in his lifetime L e fa h ad leased the flats a nd rent w as p a id to h i m. ' M a s e l l o a ne h ad lived w i th L e fa for a v e ry l o ng t i m e. T h ey h ad a girl Selloane. T h e re w e re m o re t h an five r o o m s. L e f a 's brothers w e re a c c u s ed a nd T u m i s a n g. A c c u s ed w as older t h an L e f a. A c c u s ed lived on his o wn site. P . W .6 Lt. C o l. J o hn T e l u k h u n o a na ( P . W .3 at the P. E.) s w o rn stated that his j ob w as that of a r ms a nd a m m u n i t i on e x a m i n a t i on in s u s p e c t ed of c r i m e. He h ad b e en d o i ng this j ob for a l m o st 11 y e a rs n o w. He h ad b e en giving e v i d e n ce relating to a r ms a nd a m m u n i t i on in Subordinate C o u r ts a nd the H i gh C o u r t. He r e m e m b e r ed the y e ar 1 9 9 4. He h ad r e c e i v ed i t e ms f r om T h a m ae Police Station. He applies to refresh his m e m o ry a nd the request b e i ng granted he s a ys w h en i t e ms c o me f r om the stations e a ch item is a c c o m p a n i ed by a s u b m i s s i on f o rm a nd the presenter signs for the i t e ms a nd the recipient also signs. T he d u ty station is also indicated on the report. W h en e x a m i n i ng e a ch i t em he l o o k ed at the condition a nd the label a nd in the c a se of a firearm if it is in g o od condition, he did the test firing. In c a se of cartridges a nd bullets he g a ve identity m a r k s. M o st bullets a nd cartridges that c a me to h im w e re those that h ad b e en fired a nd there w as therefore no n e ed to e x a m i ne t h em for potency. T he test c a s es w e re t h en c o m p a r ed w i th exhibit c a s es a nd n o t es w e re taken. C o m p a r i s o ns w e re noted. At the e nd of the e x a m i n a t i on a report w as t h en m a de a nd he h ad p r e p a r ed s u ch a report. G e n e r a l l y, the report c o v e r ed activities a nd findings of a ny e x a m i n a t i o n. T he report w as t h en sent to the police station c o n c e r n ed a nd police stations c o n c e r n ed collected the exhibits. T h o se w ho collected the reports a nd exhibits s i g n ed the file a nd register for the p u r p o s e. In conducting tests sometime he took pictures in order to buttress his findings. He h ad his report with him. He h ad received a 9 mm pistol serial n o. B 3 4 7 0 8; 3 x9 mm cartridges for 9 mm and 9 mm fired bullet f r om D/Sgt. Lechesa. W h en he received t h em he could not recall in w h at they w e re contained. He h ad then subjected the exhibits to the procedure he had described. He h ad also taken pictures. H is findings w e re the following: the 3 cartridge pieces w e re Bred from the pistol brought with the cartridges i.e. o ne bearing serial no. B 3 4 7 08 a 9 mm pistol. D ue to d a m a g ed m a r ks on the dead bullet the result w as negative. This, h o w e v e r, did not m e an the bullet w as not fired from the pistol - it is that it w as d a m a g e d. W h en m a k i ng the comparison one examined the m a r ks left in the cartridge and the m a r ks are so small o ne can see t h em with a n a k ed eye though a microscope is u s ed to pick t h em up. T he c o m p a r i s on and identification is m a de because e a ch g un has its o wn characteristics. T he m a r ks w e re because of the manufacturing process a nd w e ar and tear. This m ay be c o m p a r ed to fingerprints. In demonstration he says he looks at the base a nd circumference of the cylinder of the cartridge case. W h e re position m a r ks being breech face m a r ks are found on the base it w as there that he took the photograph w h i ch s h o ws the m a r ks he h ad identified. He s h o ws the court base of the cartridge base. Microscopically the picture s h o ws the exhibit case a nd in the centre is a black line dividing the test case a nd exhibit case. L o o k i ng at the cartridge case there w e re striations m a de by the breech of the firearm going though the dividing line into the other case. A c c o r d i ng to the witness, this is an illustration of a positive match. T he defence counsel w as also s h o wn the m o v e m e n ts explained. According to the witness, if the m a r ks did not m a t ch the m a r ks on each case they w o u ld be different from those of the chart/test case. T he bullets could be used on a ny 9 mm calibre pistol. Inside the glass, t h o u g h, there w e re individual characteristics peculiar to the firearm e v en if cartridges m ay be fired f r om the s a me g un or m ay fit a ny 9 mm pistol. A ny other a m m u n i t i on w o u ld n ot b e ar the s a me characteristics. E v en w e re the a m m u n i t i on m i x e d, he w o u ld still be able to s ay s u c h - a n d - s u ch a m m u n i t i on is fired f r om this or that firearm. Life bullets w o u ld not be n e c e s s a ry to be tested w h e t h er t h ey w e re fired f r om the g un for he b u ys a m m u n i t i on for test cases. A d a m a g ed bullet w as a difficult test c a se a nd it c o u ld not be said it w as fired f r om a particular g u n. T he result, c o n c e r n i ng a d e ad bullet, is that it c a n n ot be said it is either positive or negative. Exhibits h ad b e en fetched f r om h im by Sgt. L e c h e s a. E x h i b i ts h ad c o me to h im on 05 M a y, 1 9 95 a nd w e re collected on 17 S e p t e m b e r, 1 9 96 by D / S g t. L e c h e s a. C r o s s - e x a m i n ed by M r. N t l h o ki for the d e f e n ce the w i t n e ss testified the process w as not so c o m p l i c a t ed especially to t h o se w ho d e al w i th it on daily basis. A postulate that the police c o u ld h a ve fired the w e a p on ( E x h . l) at T h a m ae Police Station the witness says he could not e x c l u de the possibility. As to w hy the w e a p on h a v i ng b e en seized in January, 1 9 95 it w as s u b m i t t ed for tests on 5 M a y, 1 9 9 5, the w i t n e ss s a ys s o me police officers are n ot a w a re exhibits s h o u ld be s u b m i t t ed promptly; they investigate first a nd s u b m it exhibits later. H e, h o w e v e r, c o u ld o n ly d e t e r m i ne that a w e a p on w as fired, for the p e r i od w as irrelevant. Irrespective of w h en a w e a p on w as fired, his conclusion w o u ld be the s a me irrespective of w h e t h er a w e a p on w as s u b m i t t ed for tests expeditiously or belatedly. H is i n f o r m a t i on e m a n a t ed f r om s u b m i s s i o ns by the police a nd other than this he k n ew nothing. He h ad fired t wo cartridges. P ut to h im although he fired the cartridges they w e re not part of the evidence he says test cases are n e v er part of the evidence. T he d e f e n c e, if it d o u b t ed his evidence, w as entitled to sent exhibits to an expert of its choice. He s a ys test cartridges are a l w a ys available if n e e d e d. P ut to the w i t n e ss he did not receive E x h. 1 he says e v i d e n ce d o es not disclose w h e t h er w h en he received E x h. 1 it w as with m a g a z i n e. He says the items he received do not s h ow w h e t h er the g un h ad a m a g a z i n e. He disagrees his e v i d e n ce h as no b a ck up material. T h at his e v i d e n ce is only o ne long narrative the w i t n e ss s a ys there is o ne m a j or tool - a c o m p a r i s on m i c r o s c o pe - w o r ld a c c l a i m e d, fail-safe a nd w i th no m a r g in of error e x c e pt h u m an error. He s a ys his expertise c an be m e a s u r ed by taking a look at cases in w h i ch he g a ve evidence a nd a c c o m p a n y i ng credibility. P ut to h im the evidence he h as tendered is unreliable the witness disagrees saying it h as necessary support. He also disagrees that the conclusions he h as arrived at are unreliable for they are b a s ed on scientific p r o of besides, as he s a y s, they are b a s ed on s o u nd logic. Put to h im the only identifying m a r ks w e re p a p er labels he agrees t h o u gh he says the firearm h ad its o wn serial n o. A l so put to h im s u ch p a p er labels w e re transferable, while the witness agrees, he nevertheless s a ys these w e re distinctive m a r k s. Put to h im he did not indicate the class a nd individual characteristics of the firearm he says he s h o w ed the individual characteristics of the firearm. He s a ys the examination starts with the class characteristics a nd if the characteristics are similar o ne proceess to individual characteristics. He h ad e x a m i n ed class characteristics a nd w h en he f o u nd they w e re the s a me he p r o c e e d ed to e x a m i ne the individual characteristics. Put to h im there is no e v i d e n ce of class characteristics, he s a ys the p r o c e d u re is that only individual characteristics are e x a m i n e d. T h e se w e re p h o t o g r a p h ed w h en there w as positive identification f r om the exhibits. He s a ys he said type firearm b o re s a me class characteristics. He s a ys he h as already said that class characteristics are not p h o t o g r a p h ed but only individual characteristics the r e a s on b e i ng that it is impossible for t wo firearms to h a ve m a t c h i ng individual characteristics. He says class, s h a pe a nd size also reveal the position of the firing pin. As for individual characteristics, m a r ks f o u nd inside the firing strata i m p r e s s i on pin will leave o wn individual m a r ks t h o u gh the firing pin, size, s h a pe will be the s a me for the m o d el firearm. Inside the i m p r e s s i on will b e ar s a me individual characteristics peculiar to the firing pin b e i ng the result of m a n u f a c t u r i ng p r o c e ss a nd w e ar a nd tear. In m a n u f a c t u r i ng h a rd steel w as u s ed to cut the h a rd m e t a l; d u r i ng the cutting p r o c e ss the metal u s ed w o re off a nd the n e xt cut w o u ld consequently leave different m a r ks f r om the o n es it left previously. B e c a u se of this a nd the w e ar a nd tear the m a r ks left by the cutting m e t a l, individual characteristics will be left. Put to h im if an instalment is u s ed a nd leaves certain characteristics a nd the s a me instrument is u s ed on another setting or object it w o u ld leave s a me class a nd individual characteristics size a nd specifications b e i ng the s a me he s a ys the a n s w er is no b e c a u se at a ny stage w h e n e v er t wo metals c o me into contact w i th e a ch other there will be friction w h i ch c h a n g es individual characteristics afterall, individual characteristics on the surface of a g un w e re different. He says the three shells bear the s a me characteristics w i th the test c a se ( E xh " A ") T he p h o t o g r a ph represented o ne shell ( t h o u gh he could not s ay w h i c h ). He a g r e es o ne shell represents characteristics of other shells. He s a ys as the result w o u ld in any event h a ve been the s a me it w as not necessary to subject all the shells to a test. He says that is w hy he used only o ne test shell. T h at a pair of scissors w as used to bring the test case to size he agrees saying its b e c a u se the m o d el w as uneven notwithstanding that the shell is itself round. He says the t wo cutting cases are m o u n t ed on t wo different microscopes brought together by a bridge. T he E x h. C a se w as only of the vision a nd the entire figure appeared on the photograph. A photograph w as normally cut to fit the area. Scissors if u s ed w as merely to cut the photograph and not the E x h. Case. He says the purpose w as not to p r o d u ce the case but to bring to the fore individual characteristics. He says a test shell is the longest part of the photograph. T he test case h ad a face impression. A c c o r d i ng to him, the photograph did not s h ow the firing pin impression. Suggested the converse ought to be the case the witness disagrees saying it d e p e n ds on individual characteristics. Put to h im he found it difficult if not rather impossible to m a t ch the test shell to the exhibit shell to an extend w h e re the only w ay to get closer h as b e en to adjust or alter, adjust, cutting and trimming a nd re-aligning the test shell to the exhibit a nd h e n ce the cuttings a nd adjustments, the witness says he has not d o ne anything as suggested for he h ad already demonstrated that the cutting w as d o ne to the photograph a nd not to the test case - the only adjustment having b e en to bring the t wo to match. He says he has already explained that the test case d o es not appear in its entirety for the test case is larger than the exhibit case. He says the lens took only w h at he w as interested in i.e. the individual characteristics being e d g es of the prima that black m a r ks do not match. He says the black lines do not synchronise. T he matching of the primus w as according to the witness not important for m a r ks are not m a de by the cartridge case. He says the w h i te rings do not synchronise but diverge. W h at the e x a m i n er looks at w as m a r ks m a de by the firearm n ot m a r ks on the cartridge before it is fired. He says all he did w as to m a t ch the positive characteristics. M a r ks h ad to be b r o u g ht out so as to be m a de familiar to a l a y m a n. In reacting to a demonstration by counsel holding E x h. " A ", the witness says scientifically this is positively in the m a t c h i ng of positive identifications. He says the significance of the figures on the Exhibit c a se is to identify the calibre or manufacture. He says he n e v er signs on the p h o t o g r a ph but on the report. R e - e x a m i n e d: He says w h e n e v er a firearm is fired there are noticeable m a r k s. Although the manufacturer m ay be o ne characteristics are different m u ch the s a me as twins h a ve different fingerprints. In a n s w er to an assessor he says exhibits c a me to h im late as a result of the delay by the investigating officer. Cartridges u s ed w e re of the s a me m a ke but different calibres. M r. S a k o a ne applies that m e d i c al e v i d e n ce a nd the p o s t m o r t em report be admitted as the doctor is untraceable. T h e re b e i ng no objection to the reports b e i ng h a n d ed in they are read into the record a nd m a r k ed Exhibits " B" a nd " C" respectively. T he C r o wn h ad closed its case. M r. N t l h o ki for the d e f e n ce also closes the d e f e n ce c a s e. In addresses M r. S a k o a ne for the C r o wn h as submitted that the C r o w n 's c a se h i n g ed on circumstantial e v i d e n c e. T he court h ad h e a rd e v i d e n ce that a c c u s ed h ad a p p r o a c h ed P . W .2 a police officer f r om w h om he s o u g ht g u i d a n ce lest he s h o u ld go w r o ng a nd no s o o n er h ad P . W .2 proffered advise for a c c u s ed to go to court t h an the d e c e a s ed a l o ng w i th h er c o m p a n i on w e re m u r d e r e d. E v i d e n ce h ad b e en to the effect that a c c u s ed feared ' M a s e l l o a ne ( d e c e a s ed in C o u nt 1) w o u ld sell the site a nd flats thereon. C o u n s el says according to c r o wn e v i d e n ce a c c u s ed h ad s o u g ht a d v i se f r om t wo i n d e p e n d e nt police o f B c e rs n a m e l y, P . W .2 a nd P . W . 3. N o t i c e a b l y, the t wo p o l i c e m en w e re not related to either P . W. 1 or P . W .5 a nd c o u ld h a ve no m o t i ve for implicating the a c c u s ed falsely. A n o t h er factor to be t a k en into a c c o u nt w as that a c c u s ed t h o u gh closely related to d e c e a s ed in c o u nt 1 h ad n ot a t t e n d ed the funeral a nd h ad b e en s e en by P . W .5 to be p e e p i ng t h o u gh his w i n d o w. C o u n s el h as also d r a wn the courts attention to the fact that t h o u gh a c c u s ed h ad an official issue, he h ad h a n d ed in his g un w h i ch w as n e v er c l a i m ed to h a ve b e en lost. He s a ys at all material t i m es the g un w as in c u s t o dy a nd p o s s e s s i on of a c c u s e d. If forensic evidence w as accepted the o n ly p e r s on to a n s w er for the s h o o t i ng w as the a c c u s ed person. A c c o r d i ng to h i m, c r o wn e v i d e n ce h ad n ot b e en tarnished or c h a l l e n g ed n or c an it be said it w as unreliable. Several c a s es w e re q u o t ed in support. M r. Ntlhoki for the d e f e n ce h as said that it w as w r o ng for C r o wn C o u n s el to h a ve s u b m i t t ed that c r o s s - e x a m i n a t i on w as no d e f e n ce for in several c a s es the appeal court has held cross-examination w as evidence. He says e v en w e re the court to arrive at its conclusion by reason of cumulative facts or all the circumstances taken together cumulative facts w e re no m o re than p r o v ed facts a nd there w e re n o ne in this case. He says there w as no evidence that the fatal shots w e re fired by the accused. T he c r o wn should also h a ve p r o v ed that at the material time a c c u s ed w as in possession of the firearm a nd it w as up to the c r o wn to p r o ve possession or loss of the firearm. He says the police did not investigate the c a se at all h a v i ng contented themselves with spurious claims of there h a v i ng b e en a c a se b e t w e en ' M a s e l l o a ne (deceased in C o u nt 1) a nd a c c u s ed a nd b e c a u se of the so called hostility b e t w e en the t wo having j u m p ed to the only conclusion that it is n o b o dy but a c c u s ed w ho m u r d e r ed the deceased. T he area b e i ng a built up area a nd liquor being sold in the premises people other than the a c c u s ed could h a ve c o m m i t t ed the crime. N o ne of the tenants h ad b e en called in evidence to testify w h e t h er they h e a rd the s o u nd of a g un N o b o dy h as testified to seeing a c c u s ed in the n e i g h b o u r h o od of w h e re the crime w as committed. He also says accused's m o v e m e n ts h ad not b e en a c c o u n t ed for on 13 N o v e m b e r, 1 9 9 4. If the accused's g un h ad a silencer this should h a ve b e en investigated. He says police did nothing following P. W.1's suspicions for finger-prints could h a ve b e en taken of spent shells a nd r o u n ds returned to accused. He says e v en the g un w as not fingerprinted to determine w h e t h er the a c c u s ed h ad t o u c h ed it. He says that a c c u s ed p e e p ed through the w i n d ow could h a ve b e en for several reasons. It w as up to P . W .5 to h a ve alerted a c c u s ed of w h at w as h a p p e n i ng a nd to h a ve noted accused's reaction. He says a m o t i ve should h a ve b e en p r o v ed in respect of the d e c e a s ed in C o u nt II. C o u n s el w as up in a r ms regarding identification of exhibits as a better a nd m o re lasting m e a ns s u ch as paint c o u ld h a ve b e en u s ed a nd it c o u ld n ot be ruled o ut that the p o or m e t h od of identification left the d o or w i de o p en for fiddling w i th the exhibits. He s a ys neither the police n or the expert P . W .6 c an be said to h a ve b e en in a position to identify the shells positively. W h at P . W .3 r e ad f r om the e n v e l o pe w as n ot w h at w as on the e n v e l o p e. He s a ys the exhibit register w as deliberately left b e h i nd a nd there w e re all sorts of possibilities w hy it w as left b e h i nd e.g. c o u ld b e l o ng to a n o t h er firearm. T he police d id n ot s ay w hy t h ey h u ng on to the exhibits for f o ur m o n t hs n or w as an e m p ty m a g a z i ne m e n t i o n ed by D / S g t. L e c h e sa a nd P . W . 6. Exhibits s h o u ld h a ve b e en s u b m i t t ed t i m e o u s ly for ballistic tests. He s a ys the ballistic e v i d e n ce is no e v i d e n ce at all b e i ng a m e re narration of events; he s a ys he d o es n ot d o u bt the colonel's qualifications s a ve that there w as n ot e n o u gh data to b a ck up his findings. He s a ys the p h o t o g r a p hs w e re p o or quality a nd w e re i n t e r f e r ed w i th by t r i m m i ng a nd cutting - a g r o t e s q ue exercise a c c o r d i ng to h i m. He s a ys the result w as to s y n c h r o n i se the o t h e r w i se d i v e r g e nt p h o t o g r a p hs to p r o d u ce a h a r m o n i o us effect. He s a ys the f l aw in the e x e r c i se w as the so-called class a nd individual characteristics. He s a ys P . W .6 c o u ld n ot s ay w h at individual characteristics of the w e a p on w e re that m a de it different f r om a ny o t h er w e a p o n. He should h a ve displayed the different characteristics in the f o rm of a chart spelling out the individual characteristics. So far as the picture w as c o n c e r n e d, it c o u ld be the p r i m er of a ny g un n ot particularly E x h. 1. He s a ys there w as no c o r r o b o r a t i o n. He s a ys the expert's e v i d e n ce h as led the c o u nt to a d e ad e n d. He s a ys the e v i d e n ce w o u ld h a ve h ad a sting o n ly if there w e re c o m p a r a b le projections. He s a ys the C o l o n el h ad n ot g o ne far e n o u gh for he s h o u ld h a ve tested the c o m m on reaction of g u ns of the s a me calibre a nd p r o d u c ed t wo instead of o ne s p e c i m e n. Several cases w e re also q u o t ed in support. As for M r. S a k o a n e 's s u b m i s s i o n s, the d a n g er is that this court w o u ld h a ve to d r aw inferences f r om the set of circumstances outlined. It could well be a c c u s ed s o u g ht advise f r om the police b e c a u se he w as c o n c e r n ed lest he should c o m m it a crime because of his u n h a p py relationship with the d e c e a s ed in C o u nt I or b e c a u se he w a n t ed to avoid s u ch an ugly situation developing. As for a c c u s ed not attending a funeral of a close relative, here again it is a matter of inference for it could well be that a c c u s ed hated ' M a s e l l o a ne to an extend w h e re he could not identify with h er p r o b l e ms or did not go to a v o id the embarrassing situation he w o u ld find himself. T h e re are too m a ny possibilities; n or do I think the fact that the a c c u s ed merely pipped at a w i n d ow takes the case a ny stage further. This line of reasoning worries this court for it w as not s h o wn that a c c u s ed is a notorious t r o u b l e m a k er a nd h as a t e n d e n cy to fight his relatives. T h at accused w h en a s k ed to h a nd in his g un surrendered his personal w e a p on is hardly surprising for he could h a ve understood his personal w e a p on as the w a n t ed one. In a ny event in h a n d i ng in E x h. 1 it c a n n ot be said that a c c u s ed h ad anything to hide; on the contrary, it s h o ws he h ad nothing to hide. W e re p r o b l e ms encountered in h a n d i ng in the g u n, an adverse inference w o u ld rightly be d r a wn unfavourable to the accused. As for Mr. Ntlhoki's submissions, it is an accused's common law and constitutional right to remain silent for it is up to the Crown to prove its case beyond reasonable doubt. Most evidence against accused as the Crown Counsel correctly conceded was circumstantial the question being whether accused was obliged, in the circumstances, to defend himself. The question indeed as Mr. Ntlhoki submitted was whether there were any proved facts requiring accused to answer. Mr. Ntlhoki says the case was not investigated at all the police having jumped to the conclusion that because there was hostility between 'Maselloane and the accused the latter must have killed the deceased. It is true there were tenants and they were not called and the reason for their non-calling was not explained nor, indeed, were accused's movements of 13 November, 1994 accounted for. Also, nobody appears to have heard a gun shot sound and moreover the court was not told whether accused's gun had a silencer. Fingerprints were not taken either. It is also true the exhibits were submitted to the ballistic expert rather late and no cogent reason was given for the delay. Identification of exhibits left much to be desired so far as Mr. Ntlhoki is concerned. He has also criticised P. W.6 the expert's findings. Nicholas in some 'Aspects of Opinion Evidence ' in Kahns Ed. Fiat Justicia: Essays in Memory of Oliver Deneys Schreiner (1983) 225 says: Legal proceedings are concerned with facts not ' with beliefs of witnesses as to the existence of facts ' Evidence of P. W. I, P. W.2 to some extend P. W.3 and P. W.5 was largely based on the witnesses beliefs and accused's purported motivations. These beliefs were not, in the view of this court, based on solid existence of facts justifying unfavourable inferences to be drawn against accused - the more so because taking into account what was said in R. v. Blom, 1939 AD 188, 202 - 3 that:- 'The first rule is that the inference sought to be drawn must be consistent with all the proved facts; if it is not, the inference cannot be drawn;' The second - that the proved facts should be such that they exclude every reasonable inference from them save the one sought to be drawn: if these proved facts do not exclude all other reasonable inferences, then there must be a doubt whether the inference sought to be drawn is correct.' So far as this court is concerned, the only proved acts were that 'Maselloane and her companion were found shot dead with spent cartridges lying around plus bloodstains spluttered all over. There are therefore no proved facts from which the court can draw inferences unfavourable to the accused. Regarding the second requirement, I repeat there are no proved facts and consequently there is no question of proved facts excluding any reasonable inference and here again no inferences can be drawn. Accused person at the end of Crown case elected not to go into the box and as I have said he was only exercising his common law and constitutional right. The question is whether the expert evidence of P. W.6. the police ballistic expert, has proved a case against the accused. Schwikkard - Principles of Evidence, 1997 Ed. P.87 says there are requisites for the acceptance of such evidence, namely:- '(a) ( b) © ( d) T he o p i n i on of an e x p e rt is r e c e i v ed w h e n e v er his skill is greater that of the court t he true criterion is w h e t h er the court c an r e c e i ve a p p r e c i a b le h e lp f r om the o p i n i on of the w i t n e ss w h en the issue is o ne of s c i e n ce or skill the e x p e rt c an be a s k ed the v e ry q u e s t i on w h i ch the court h as to d e c i d e. F or the e x p e rt witness's e v i d e n ce to be a c c e p t a b le he m u s t :- (a) ( b) © N ot or will n ot e x p r e ss an o p i n i on on hypothetical facts, that is, facts w h i ch h a ve no b e a r i ng on the c a se or w h i ch c a n n ot be r e c o n c i l ed w i th all o t h er e v i d e n ce in the c a s e. S c h w i k k a rd in his Principles of Evidence (1997 Ed) h as g i v en an e x h a u s t i ve c a se history of the d e v e l o p m e nt of principles appertaining to identification of f i r e a r m s. T he subject is said to h a ve a p p e a r ed in print in A m e r i ca in a b o ut J u n e, 1 9 60 a l t h o u gh its p r o g e n i t o rs c o n s u l t ed w i d e ly a nd particularly in E u r o p e. In the b e g i n n i ng it s e e m ed as if there w as a b r e a k t h r o u gh b ut as a l w a ys the early e x p e r i m e n ts h ad f l o u n d e r e d. T he publicity g e n e r a t ed by the St. V a l e n t i ne D ay M a s s a c re h a d, h o w e v e r, d r a wn the attention of identification laboratories r e g a r d i ng the c o m p a r i s on t e c h n i q ue utilised by D r. G o d d a r d. It is particularly to be noted that, like the instant case, these techniques were resorted to where people were shot dead and there were no clues as to who the culprits were. In South Africa during March, 1931 an article titled 'Cartridges and bullets in murder cases' appeared in the South African Police Magazine Nongqai written by Captain and later Major M. S. Barradough. Major Barradough was an inspector of small arms and machine guns in the Defence Force and is generally credited with being the founder of arms identification in South Africa. While in the beginning Col. Goddard titled his first article 'Forensic Ballistics :finding the title inappropriate in that ballistics dealt with motion of projected and dead fired shells in a state of rest, he changed the term to the simpler 'firearm identification. It is said the term 'forensic ballistic' was intended to indicate that the expert's ballistic evidence was concerned with matters involved in legal procedures and court trials. It is also said it is common cause that firearms experts are trained to examine and give testimony on the whole spectrum of the science ballistics. Van der Westhuizen in his Forensic Criminalistics (2nd Ed.) at p.290 says:- 'It is the barrel of a gun that leaves significant markings on a projectile. On p.292 van der Westhuizen says microscopic examination of the cutting e d ge w o u ld reveal the part that the e d ge is n ot truly s m o o th a nd w o u ld h a ve n i c ks in it. T he serrated cutting e d g es resulted in serrations a nd ridges b e i ng f o r m ed in me surface m a de by the cutter. A l s o, tiny c h i ps of m e t al f r om the cutting o p e r a t i on m ay p r o d u ce inequalities in the action of the cutter, giving individuality to the surface b e i ng cut. A p p a r e n t l y, t o o, the steel u s ed in barrels is n ot absolutely h o m o g e n o us a nd there will be s o me areas of the s u r f a ce w h i ch will be h a r d er t h an others. T he cutter is said n ot to act in the s a me w ay on t h e se a r e as resulting in inequalities in the surface. M o r e o v e r, at it is said, in spite of a l a p p i n g' o p e r a t i o n, after the g r o o v es h a ve b e en cut, individuality will exist b e c a u se all the scars a nd imperfections on the inside of the barrel are n ot r e m o v e d. T he a b o ve w as the general, if globular a c c o u nt of w h at P . W .6 Lt. C o l. T e l u k h u n o a na g a ve of the surface of the barrel of a g u n. Van der Westhuizen gives several m e t h o ds u s ed that m a ke the surface of a g un e.g. H o ok - cutter m e t h o d, scape-cutter m e t h o d, B r o a c h i ng m e t h o d, s w a g g i ng m e t h o d, H a m m e r i ng M e t h od a nd P o l y g o n al B o r i ng M e t h o d. As I h a ve said, Lt. C o l. T e l u k h u n o a na ( P . W . 6) h as m e r e ly referred to these m e t h o ds in a globular f a s h i on a nd this c o u rt d o es n ot think that b e c a u se he h as n ot singled out or identified the m e t h o ds this m a k es his e v i d e n ce fall short on this aspect by r e a s on of t he fact that like v an d er W e s t h u i z e n, the w i t n e ss P . W .6 h as s p o k en of the inequalities a nd i m p e r f e c t i o ns on the surface of the barrel of a g un thus giving it individuality. I h a ve a l r e a dy referred to m e t h o ds that g i ve g u ns their individual characteristics t h o u gh I s e em to h a ve b e en attracted by P o l y g o n al b o r i ng m e t h o d, G e r m an in origin a nd rather u n c o n v e n t i o n a l. It is n o t ed in this m e t h od that the characteristics are on bullets fired t h r o u gh firearms w h i ch l e a ve identifying m a r k i ng on fired cartridge c a s e s. A t t e n t i on is a l so d r a wn to the fact that since a cartridge c a se is f o r c ed to the rear w i th the s a me p r e s s u re as that e x e r t ed on the bullet w h en a g un is fired, the p r i m er a nd often the b r a s s h e ad h ad a c q u i r es an i m p r e s s i on of the i m p e r f e c t i o ns on the w e a p o n 's b r e e ch h e a d. It is also to be n o t ed that t he b r e e ch b l o ck of a w e a p on is usually surface finished by a milling tool or file, w h i ch l e a v es tiny s k r e t c h es that are distinctive to that w e a p on on t he surface of the b l o c k. In addition, it is also said that to b r e e ch f a ce m a r k i n g s, extractors, ejectors a nd firing pins often b e ar c h a r a c t e rs scars accidentally p r o d u c ed in m a c h i n i ng or h a nd finishing m e t h o d s. T he surface i m p e r f e c t i o ns v a r i ed f r om g un to g un a nd it c o u ld be said that no t wo g u ns will l e a ve the s a me m a r k i ng on fired c a s e s. C o m p a r i s on of these m a r k i n gs is the m e a ns of d e t e r m i n i ng w h e t h er or n ot a particular cartridge w as fired in a particular g u n. ( My underlining). A c c o r d i ng to v on d er W e s t h u i z en (p 2 9 4 ), w h en a bullet is fired d o wn a rifled barrel, t he rifling i m p a r ts a n u m b er of m a r k i n gs on t he bullet that a re called 'class characteristics T h e se m a r k i n gs m ay indicate the m o d el a nd m a ke of the g un f r om w h i ch t he bullet h as b e en fired. Van d er Westhuizen s a ys this results f r om the specifications of the rifling as laid d o wn by the m a n u f a c t u r e r. S e v e r al characteristics are given. It is said in addition to t h e se class characteristics, imperfections on the surfaces of t he l a n ds a nd g r o o v es s c o re the bullets, p r o d u c i ng individual characteristics. T he individual characteristics are peculiar to the particular firearm that fired the bullet a nd to no others. A c c o r d i ng to the a u t h o r, no t wo barrels, e v en those m a de consecutively by the s a me tools will p r o d u ce the s a me m a r k i n gs on the bullet. T h ey are as individual a nd u n i q ue as fingerprints. T h u s, w h i le the class characteristics m ay be identical on bullets fired by t wo different w e a p o ns of the s a me m a k e, the individual characteristics will be different. It is said w h en a bullet a nd firearm are submitted for examination the question to be a n s w e r ed is w h e t h er the bullet w as fired by the s u s p e c t ed g u n. T he a n s w er is said to be obtained by detailed c o m p a r i s on of m a r k i n gs on the e v i d e n ce bullet with c o r r e s p o n d i ng m a r ks on the test bullets fired t h r o u gh the suspect g u n. A p p a r e n t ly test bullets are obtained by firing the s u s p e c t ed w e a p on into a special w a t er tank to avoid bullets b e i ng d a m a g ed or loss of fine m a r k s. It is said this facilitates the task of identification. A c o m p a r i s on m i c r o s c o pe is then u s ed for e x a m i n a t i on of striated m a r k i n g. T he m i c r o s c o pe is so constructed that it a l l o ws a critical c o m p a r i s on b e t w e en t wo separate s p e c i m e n s. A true identification is said to be a c h i e v ed w h en the t wo s p e c i m en a p p e ar as if they are o n e. T h e re has to be rotation of the t wo bullets in the s a me direction allowing individual strae a nd strated areas to be c o m p a r ed throughout the periphery to e n s u re that all the strae m a t c h. On p . 2 95 van der Westhuizen h as g i v en a configuration of m a r k i n gs on the evidence bullet. It has, a m o ng other things, a reference n u m b e r, s h o ws i m p r e s s i o ns c a u s ed by the g r o o v ed barrel of a firearm a nd m a r k i n gs u s ed for identification p u r p o s e s. On p . 2 96 he also gives a graphic representation of c o n t o ur height of ridges a nd d e p th of valleys f o r m ed by striations. R e g a r d i ng d a m a g ed bullets, it is said the entire c o n c l u s i on m u st be b a s ed on a fraction of the total lines w h i ch c o u ld a p p e ar on the bullet for, w i th sufficient similarity a perfectly valid c o n c l u s i on c an result, similar to fingerprints, w h e re a fraction of a fingerprint f o u nd on the s c e ne of c r i me c an l e ad to a perfect a nd valid identification. M r. N t l h o ki for the d e f e n ce h as said there w e re no t wo separate, distinct s p e c i m e n. P . W .6 h as said his m i c r o s c o p ic representation reflects m a r k i n gs on the e v i d e n ce bullet w i th c o r r e s p o n d i ng m a r ks on the test bullets a nd that the strae m a t ch although he did not m e n t i on that there w as rotation a nd c o m p a r i s on t h r o u g h o ut the p e r i p h e r y. T he m a r k i n gs on the e v i d e n ce bullet are n ot as p r o n o u n c ed as t h o se r e p r e s e n t ed by v an der Westhuizen, E x h. " A" h as no r e f e r e n ce n u m b er a nd the m a r k i ng are indistiguishable f r om other figures on E x h. " A" T he court w as n ot a b le to say w h at i m p r e s s i o ns w e re on the e v i d e n ce bullet a nd test bullet. P . W .6 instead of m a k i ng do w i th a fraction of lines on the d a m a g ed bullet c h o se to gloss o v er the inquiry thus rendering his test incomplete. T he C o l o n e l 's assertion that it is difficult to test c a se a d a m a g ed bullet is h a r d ly a c c e p t a b le in t he light of van der Westhuizen's convictions. As he said c r o s s - e x a m i n ed by the d e f e n ce it c o u ld w e ll be that the d a m a g ed bullet w as n ot fired f r om the suspect's g u n. If s o, it c an be s e en h ow w i de o p en the p r o s e c u t i on c a se h as b e en m a d e. N or is this c o u rt in the least i m p r e s s ed by the C o l o n e l 's t e s t i m o ny that the result of t he d e ad bullet c a n n ot be said to be positive or negative. S h a v i ng m a r ks on the f o r w a rd s h o u l d er of the bullet w h e re lead h as b e en s c r a p ed off by the b r e e ch of the barrel d e p e n d i ng on the t y pe of the g un w e re not investigated n or w e re firing pin i m p r e s s i o ns often identified w i th the w e a p on in w h i ch firing t o ok place. I am n ot a w a re that extractors a nd ejectors - an i m p o r t a nt c o m p o n e nt of a u t o m a t ic w e a p o n s, w e re e x a m i n e d. A l t h o u gh the field of firearm identification is at t i m es c o m p a r ed to that of fingerprints, unlike the field of fingerprints c o m p a r i s o n, it is said there is no n u m b er of characteristics r e q u i r ed for positive identification of a tool m a r k, It is also said m o st i m p r e s s i on m a r ks represent a c o m b i n a t i on of class characteristics a nd individual characteristics like s a y, a footprint. As I h a ve indicated, in identifying the i m p r e s s i on t wo b a s ic m e t h o ds are generally f o l l o w ed b e i ng c o m p a r i s on b e t w e en the i m p r e s s i on a nd t he tool itself; a c o m p a r i s on c an also be m a de b e t w e en the i m p r e s s i on in e v i d e n ce a nd a test i m p r e s s i on m a de by t he s u s p e c t ed tool. T e st m a r ks are m a de w i th the s u s p e c t ed w e a p on on a s u b s t a n ce r e s e m b l i ng t he e v i d e n ce material as closely as possible. T h e re h as to be simulation of original e v i d e n ce m a r ks a nd a n u m b er of tests are m a de to m a t ch the a n g le of application. R e p r e s e n t a t i on of e v i d e n ce is also said to be similar to the t e c h n i q ue e m p l o y ed in fingerprints c a s es w h e re lines are d r a wn on the p h o t o g r a ph of test a nd e v i d e n ce m a r ks pointing out characteristics a nd configurations. As m o st of t he tools u s ed in criminal c a s es are h a n d - m a d e, it is said a n u m b er of tests h a ve to be a p p l i ed to an object o v er a w i de r a n ge of a n g u l ar applications w i th v a r y i ng p r e s s u r es resulting in a t r e m e n d o us variety of m a r ks by the tool. F i r ed bullets, striated tool m a r k s, e v i d e n ce a nd test s p e c i m en are c o m p a r ed t h r o u gh a m i c r o s c o pe as to r e g a r ds height, w i d th a nd d e p th of certain features as w e ll as the c o n t o ur of striations. On pp. 298 - 9 van der Westhuizen says the interpretation of these marks must be considered together with marks made by the firing pin and breech face to determine if a cartridge case was fired in a suspected gun and so are breech-block markings on a cartridge case - said to be the largest on a casing and forming most valuable identification characteristics and these to be compared with tests from the same weapon. To be included are magazines markings and chamber marks - all these necessary exercises not gone into by P. W.6. For these omissions the witness was subjected to relentless and withering attack by the defence counsel. There were no lines drawn on the photograph of test evidence nor were there evidence marks pointing out characteristics and configurations. Although a comparison microscope was used, it did not reflect all necessary characteristics. On judgments in court cases van der Westhuizen says courts generally accept the evidence of an expert. He also says that because of the pioneering spirit of Major Barraglough, in South Africa firearm evidence is accepted on the same basis as that of fingerprints. According to van der Westhuizen (p.306), whether an individual has fired a firearm is determined by 'paraffin' 'Deremal Nitrate5 or 'diphenylamine' test. The process consists of subjecting the individual suspected of firing the gun to these tests which will disclose debris or gunpowder on hands that have fired the suspected weapon. The tests are highly sophisticated although it is said the paraffin test is in fact non-specific and of no use scientifically. Concerning footprints or shoe prints, as the aggressor has to walk to and away from the scene of crime, it is said foot and shoe prints are among important varieties of physical evidence to be gathered by an investigator; and so is the e v i d e n ce of fingerprints on fired bullets a nd shells as M r. N t l h o ki for the d e f e n ce h as represented. T he three tests referred a b o ve to d e t e r m i ne w ho fired the g un are strictly b a s ed on t i me factor w h o se o b s e r v a n ce w as so painfully l a c k i ng in this c a s e. T he s u s p e ct in this c a se w as belatedly c o n f r o n t ed a nd the c o n f r o n t a t i on w as d o ne on routine a nd m o re t h an friendly basis as if a c r i me h ad n ot b e en c o m m i t t e d. O ne of the w e a k e st features of this c a se reflecting the tardiness a nd flat f b o t e d n e ss of the police w as the u n r e a s o n a b le d e l ay to set in m o t i on investigative p r o c e d u r e s. T h is c an be s u m m ed up as l a ck of will on the part of the p o l i ce a nd their r e l u c t a n ce to close nets a nd a p p r e h e nd s u s p e c ts t i m e o u s l y. A l t h o u gh P . W .6 testified the several inordinate d e l a ys in investigation a nd s u b m i s s i on of tools for ballistic test h ad n ot affected the result of his tests, the fact that materials for test w e re n ot s u b m i t t ed expeditiously certainly a d v e r s e ly affected the result of his tests. H ow c o u ld P . W .6 test either the g un or the suspect for g u n p o w d er several m o n t hs after t he firing? T he delay in submitting the s u s p e c t ed w e a p on for tests is p r o b a b ly the r e a s on P . W .6 d id not c o n d u ct all n e c e s s a ry tests. T e s ts c o n d u c t ed by P . W .6 c a n n ot be said to be far- r e a c h i ng a nd placing the e v i d e n ce b e y o nd r e p r o a ch or suspicion. As M r. N t l h o ki h as p r o p e r ly s u b m i t t e d, P . W . 6 's e v i d e n ce lacking, as did, b a ck up material in the f o rm of physical e v i d e n ce w h i ch w as available b ut n ot utilised, it c a n n ot be said the C o l o n e l 's e v i d e n ce h as d i s c l o s ed sufficient material to justify a c o n v i c t i o n. T he d e f e n ce h as n ot c h a l l e n g ed P . W . 6 's qualifications n or h as this court d o u b t ed the qualifications especially in the light of P . W . 6 's l o n g - c o n t i n u ed e x p e r i e n ce in the trade. Suffice it to s ay that as h as b e en said w i th r e g a rd to a fingerprint expert, the attitude that a question concerning the history of fingerprints or a technical aspect has no bearing on the case need not be applied for, if the witness fails to answer the question this tends to encourage the defence to further discredit the witness. As I have said, P. W.6 was caught by the defence on several occasions in this regard and particularly regarding flaws and omissions concealing Exh "A" which, amongst other things, bore no reference number and could easily be mixed up with other exhibits. . This court aligns itself with what was said by van der Westhuizen at p. 280 that: It is imperative that experts extend their knowledge through research and keep abreast with new methods. ' In S. v. Harris, 1965 (4) S. A. 340 (A) 365 B - C Ogilvie Thompson, J. A. is quoted as saying: In the ultimate analysis, the crucial issue of appellant's criminal responsibility for his actions at the relevant time is a matter to be determined not by the psychiatrist, but by the court itself. In determining that issue the court - initially the trial court, and, on appeal, this court to the expert medical evidence but also to all the other facts of the case, including proven actions throughout the relevant period. ' Must of necessity have regard not only And the nature of his This court endorses the above finding and would substitute 'psychiatrist' for 'firearm' and 'ballistic' expert and 'medical' for 'ballistic' In this case ballistic evidence is the one and only court's anchor; to lean on it unreservedly it must give sufficient leverage and be able to withstand all pressures. The evidence given does not withstand such pressures; actually, it has lacked sufficiency and wilted for lack of necessary support. The evidence as presented is so precarious this court would be doing itself an injustice to rely on it. As was said in R. v. Nat Bell Liquor Ltd. (1922) 2 AC 128 at 159, the evidence as it stands is no more than 'the inscrutable face of the sphinx.' This court will treat ballistic evidence on the same footing as fingerprint evidence if all necessary tests have been performed and markings on evidence and test tools are clearly discernible and have been so represented by an expert and the testimony has the support of other physical evidence so ably advocated for and propounded by van der Westhuizen and other eminent forensic and ballistic authors. The court wishes to extend its heart-felt thanks to Mr. Sakoane for the Crown who, because of his undying search for justice has made the two works referred to above available to this court. The two works are so invaluable they are a must for all those involved in ballistic and forensic criminalistics. As it cannot be said that the Crown has proved its case beyond reasonable doubt, the court finds accused not guilty of the offence of which he is charged and accordingly he is acquitted and discharged of the crime of murder. My assessors agree. J U D GE 15th J a n u a r y, 1 9 9 8. F or the Applicant: M r. Ntlhoki M r. S a k o a ne F or the C r o w n: