R v Poosa (CRI/A 93 of 90) [1994] LSCA 48 (11 March 1994)

1 CRI/A/93/90 IN THE HIGH COURT OF LESOTHO In the Matter of. TANKISO POSSA Appellant R E X Respondent J U D G M E NT Delivered by the"Hon Mr Justice W. C M Maqutu. Acting Judge on the 11th day of March. This is an appeal against the judgment of the Magistrate for the district of Mafeteng dated 14th December, 1987 In that case accused was found guilty of Attempted Murder following a shooting incident in which Appellant shot Lebamang Moeketsi on the chest The shooting is not disputed nor is it disputed that the complainant Lebamang Moeketsi was shot on the chest Why did he do it? In Gardiner and Landsdown South African Criminal Law and Procedure, Fifth Edition Volume II at page 1417, the following summary of old English law is made "It is impossible to explore the recesses of a criminal's mind, and consequently the law says that a person must be presumed to intend the reasonable consequences of his acts " We are dealing here with attempted murder In this crime the only complete element is intention or mens rea The act or actus reus is incomplete in that something prevented the result intended from taking place To convict the appellant of attempted murder, the mens rea of murder has to be fully established It is certainly not our law in respect of murder that in establishing intention we use the standard of a reasonable man For a conviction for murder to be correctly made, the Crown must prove that the accused subjectively intended to kill deceased In S. v Sigwahla 1967(4) S. A 566 at 570D Holmes J. A says "The distinction must be observed between what actually went on in the mind of the accused and what would have gone on in the mind of a bonus paterfamilias in the In other words, position of the accused the distinction between subjective foresight and objective foreseeability must not become blurred," The learned magistrate failed to observe this distinction If he had he would not have convicted the appellant of attempted murder. The Magistrate did not give his reasons for his conviction but his very light sentence of M100.00 or 6 months' imprisonment half of which is conditionally suspended gives an indication that he did consider the accused a murderer. In other words the Magistrate was not certain that Appellant had done all he could to bring about the death of deceased, but fortunately deceased was saved by outside or divine intervention. P W 1 the complainant says Appellant for no apparent reason was carrying a fire-arm and said "one line" as he pointed a gun in their direction and just then he fired and he, the complainant was hit It is common cause that the fire-arm used was a 303 rifle. It is also common cause that the accused was a policeman, P W 3 Seutloali, Appellant's fellow policeman and companion, says he heard a report from a woman 'Mabulara P W 4 and he went out and found Appellant with a rifle He rushed at the accused and accused pointed the gun at him and cocked it P W.3 took cover by lying on the ground and Appellant's gun was fired He disarmed accused immediately P. W.4 says accused ran to the police post and after a few minutes came back carrying a fire arm P. W.4 says P W 3 came out of the house followed by the complainant P W 1 Accused pointed a gun at P W,3, just as the gun was about to be fired P W.3 went to the ground and the bullet hit P. W 1 behind him. There seems to have been something that agitated Appellant He claims some villagers had threatened him for having arrested their colleague in the course of duty He decided to come armed in order to come and protect P. W 3 There is evidence that these events took place at a drinking party where alcohol was being taken Appellant took a drink before going out to pass water That is when he was threatened Appellant rushed to his residence came back armed and wild That is why he almost shot his friend and colleague. His story that he fired to the side away from the people who had gathered threateningly is uncorroborated and is not convincing His self- mduced panicky behaviour does not on the face of things disclose that he ever encompassed the death of anybody What the evidence discloses is that he became a danger to himself, his friends and the general public He wounded a fellow human being badly. Instead of telling the truth, he lied and said he was scarring the people by firing to the side It is known that a 303 rifle has a range of at least five kilometres. If we accept what he said, he put the lives of people between where the complainant (P W 1) was shoot and five kilometres away at risk. Should Appellant go scot-free because there is no attempted culpable homicide It seems tome there was no specific intent here Therefore, he cannot be guilty of assault with intent to do grievous bodily harm Assault is a very broad offence but it has intention as an ingredient. Is subjective intent of the time we have in murder an essential of assault common? Our present crime of assault derives from English law See R v Jolly & Another 1923 AD 178 at Kotze J A , therefore, concluded' "We can, therefore, have no hesitation in following the principles, of English Jurisprudence in regard to the question of assault " Although we are inclined by tradition to follow trends South African law in the law concerning assault, we should never forget that it originates from English Law Furthermore, it professes to follow English Law on this subject How the subjective test came to apply to the mens rea of assault remains unclear The purpose of doing so is even more obsecure In R v. Daniel 1926(2) PHH 109 a boy fired at birds in a built up area He had been warned he might injure neighbours An hour later the bullet hit a little girl across the road. The Magistrate convicted the boy but on appeal conviction of assault was set- aside on the grounds that the boy had no intention to assault or injure the girl. Nevertheless if we take the case of R v Nkosi 1928 AD 488 we find the Appellant in the instant casemight have been found guilty of assault even before the complainant came to the scene because Innes C. J at page 489 said' "The intentional pointing of a rifle at the man whose presence annoyed the accused was a threat to employ force, and was therefore an assault." It seems Appellant in this case went for his service rifle because some villagers had complained of the arrest of their mate and threatened revenge Once he was armed with a rifle everybody who came to his view on the way to the party was treated as an enemy as subjected to violence through the pointing of a gun at him It seems, therefore, assault common was committed any way. In English Law if we take the definition in Halsbury's Law of England Third Edition Volume 10 at page 740 it becomes clear that assault was more a crime that deals with prevention rather than actual commission That is why Assault is defined as. an offer or attempt to apply force or violence to the person of another in an angry or hostile manner; and if force is actually applied directly or indirectly , , and in an angry, rude, revengeful or violent manner, the assault becomes a battery Every however, slight the force may be battery includes an assault " We know in our law assault and battery are fused together into one offence which we generally call Assault Common Harris in Criminal Law 20th Edition at page 253 makes assault an offence which a person can rarely attempt because "if A throws a stone at B and hits him it is battery, if he misses him it is assault common " I have difficulty with the line of South African authorities that lay down that the mens rea or intention that the Crown must prove the accused to have possessed is subjective. In relation to assault it becomes all the more puzzling when Kenny's Outline of Criminal Law 17th Edition at page 195 to 196 has this to say about the mens rea of assault. "In other words, the actus reus consists of the effect on the victim's mind which the threat creates " "The mena rea is constituted by the threatener's intention to produce the expectation on the victim's mind. It is thus irrelevant that the threatener bad no intention or even the ability to inflict the contact which he had induced the victim to expect." Kenny's 17th Edition of the book was written in 1954 Russell on Crime 12th Edition Vol. 1 by Turner was written in 1964. In it the mens rea of assault that is expected of the perpetrator fits the objective standard rather than the subjective test At page 652 it is put as follows. "The mens rea consists in the realisation that his demeanour will produce that expectation " Realisation is a great distance from actually subjectively intending something The English Court of Appeal in R v. Venna {1975} 3 All E R 788 at 793 held "The element of mens rea consists in the offence of battery is satisfied by proof that defendant either intentionally or recklessly applied force to the person of another." According to Smith and Hogan Criminal Law 6th Edition published in 1988 at page 378 The recklessness that the English Courts have is not of a malicious kind but rather one of the kind where a person knowing lashes out with his foot "knowing that by lashing out he will probably or is likely to kick somebody". At page 794A of R v Venna James L. J clarifies the borderline nature of the recklessness he has in mind by saying "In many cases, the dividing line betwen intention and recklessness is barely distinguishable This such a case " It seems to me here that the Test that is being applied is the objective one not the subjective one. There is a tendency to blur th distinction between the two by avoiding the term objective even where it is appropriate, The mens rea for assault is not the stringent one which the term subjective imports into human behaviour The crime of assault common is meant to punish acts of aggression at their inception to prevent serious acts of violence. It is really intended to prevent serious breaches of the peace Therefore, its intention ought to be objectively determined not proved by trying to determine the offenders subjective intent If we follow the principles of "English Jurisprudence in regard to the question of assault" as Kotze J A. in R, v Jolly said test of mens rea in assault common is an objective one not a subjective one Once this hurdle is overcome then the species of assault that obliges the Crown to prove specific intent can logically be deemed to be one that requires mens area of a subjective type such as assault with intent to do grievous bodily harm or attempted murder It follows, therefore, that in this case appellant is not guilty of attempted murder because, for that to hold, Appellant would subjectively have intended to kill P W.1, the complainant If the same test has to be applied even for assault common then appellant might not be guilty of any crime at all I have already held that accused is guilty of assault common The grievous injury that Appellant inflicted on P W 1, the complainant occurred at the time or at a stage accused by pointing a gun to all and sundry and had committted an act of aggression. It followed that he could have expect defensive measures which did not materialise Nevertheless, appellant developed irrational fear and panic This overcame him so much that he could not distinguish between friend and foe. We should accept what P. W 4 'Mabulara said that Appellant became angry because he could not find his stick and rushed to his residence or office for his service rifle Appellant can be said to have made, "an offer or attempt to apply force or violence to the person of another in an angry and hostile manner; and if the force is applied directly or indirectly .. and in rude, vengeful or violent manner " The appellant is guilty of assult common See Halsburgy's Law of England 3rd Edition Volume 10 at page 740 What Appellant did when he pointed a gun and ordered at gun point the people who were at a party to go to one side or to form a line was to assault the entire lot Although accused has been found guilty or a minor offence, for purposes of punishment he deserves far more serous punishment than he actually got The consequences of fetching a gun and pointing it to all and sundry is that he almost killed P. W 1 (the complainant) The public were enjoying their beer at a party The police who are protectors of the public and have been armed for that purpose have to be deterred from misusing their weapons The Appellant lied at the trial and showed no remorse After getting a lenient sentence he has appealed as if what he did was what he was entitled to do Because this crime occurred a long time ago, I will no increase the sentence Nevertheless, let it be a warning to all who take fire arms without having carefully weighed the pros and cons that this Court will not treat them with limency This is particularly so where they wound members of the public in circumstances such as these ones I have decided to quash the verdict of attempted murder and substitute that of assault common The sentence of M100 00 or 6 months imprisonment half of which is suspended for three years on condition that accused is not found guilty of a crime involving violence on another person is reinstated. The appeal is otherwise dismissed W C M. MAQUTU ACTING JUDGE. 11th March, 1994 For Appellant : Mr For Respondent Mda