Director of Public Prosecutor v Mosae (C of A (CRI) 2 of 9) [2009] LSCA 28 (23 October 2009)

IN THE COURT OF APPEAL OF LESOTHO HELD AT MASERU In the matter between :- THE DIRECTOR OF PUBLIC PROSECUTIONS And C of A CRI N ( ) 0.2/09 APPELLANT ‘MALIAKO MOSAE RESPONDENT CORAM : RAMODIBEDI P , GROSSKOPF JA , SCOTT JA , HEARD DELIVERED : : OCTOBER 2009 OCTOBER 2009 SUMMARY – – Criminal Law Crown appealing against conviction of culpable homicide on the ground that the correct verdict should have been murder Distinction between dolus directus and dolus eventualis – Held that the respondent was correctly convicted of culpable homicide on the ground that she ought reasonably to have foreseen that death would ensue from her stabbing of the deceased with a knife Appealaccordinglydismissed . – JUDGMENT RAMODIBEDI P , [1] In this appeal the Crown is aggrieved by the decision of the High Court Peete J convicting the respondent of culpable ) ( homicide The Crown contends that the proper verdict on the . established facts should have been murder . [2] The respondent was indicted in the High Court on a single count of murder . It was alleged that upon or about January 5 2005, and at or near Noka Ntš , o Mpharane in Mohale’shoek - district the respondent unlawfully and intentionally killed one Puleng Mohlouoa “the deceased” ( ). [3] As indicated above the respondent was convicted of culpable homicide She was sentenced to ten . (10) years imprisonment or M 10,000.00, half of which was conditionally suspended for three years . [4] It is useful to commence this judgment with the respondent’s own version that trouble between the deceased and herself started on the previous day to the deceased’s killing . She testified that on that day she had an altercation with the deceased She said that the deceased hit her and also tore her . skipper . [5] Insofar as the events of the fateful day of January 2005 are 5 concerned , the Crown called two eyewitnesses , namely , Khauhelo Lesia PW and Puseletso Lesia PW both of whom 2) 1) ( ( were next door neighbours to the deceased . The two witnesses were sisters . [6] PW testified that the respondent’s elder sister Mahase came , , with a dog to the place where PW was sitting in the company of the deceased . The respondent accused the deceased of having hit the dog in question . She also made threatening remarks at the deceased . It is not disputed that nasty words were exchanged between Mahase and the deceased Mahase . called the deceased “insane” The latter in turn responded by . calling Mahase “thin” Hence the stage was set for a physical . confrontation between the two girls And so it occurred . . [7] It was the evidence of PW that she saw the deceased and Mahase grapple with each other They were hitting each other . . At that stage one Jacinta also joined the fight on the side of the respondent She used a stick on the deceased . . [8] PW testified that while she and others were busy trying to separate the fighting girls she saw the respondent standing , next to her and “throwing something like a fist and yet I realized that it was by the time that she was stabbing ausi Puleng thedeceased withaknife” . ) ( PW testified that she saw the knife which she described as a “Rambo” knife with a wooden handle . [9] The evidence of PW was that she heard the deceased exclaim that the respondent had stabbed her with a knife . She , however saw when the respondent stabbed the deceased for , the “last time” . It was her evidence that “Mahase and Jacinta were overpowering Puleng” the deceased ( ). [10] To the extent that the respondent relied on private defence it is necessary to mention at this stage that Mahase had admittedly lost weight PW frankly described her as weak The deceased . . on the other hand had a mental problem . [11] The post mortem report which was handed in by consent - revealed that the deceased had sustained two lacerations one , on the left arm and another one penetrating the left lung She . also had one open wound on the head which was most probably caused by her fall to the ground after she was stabbed The cause of death was due to shock . . [12] In her evidence the respondent sought to raise private defence . Firstly she said she stabbed the deceased on the arm because , she was assaulting Mahase who was weak . Secondly she , testified that the deceased turned on her She was all over her , . assaulting her This despite the fact that it was never put to . , the Crown witnesses that the deceased assaulted her at all . Nonetheless she said that the deceased was bigger She then . stabbed her in the chest as she was “gigantic” and was about to assault her . She did not know what else to do . She admitted under cross examination however that the deceased , , - was unarmed . [13] In his judgment the learned trial judge appears to have been largely influenced by his finding that there was no direct evidence to the stabbing of the deceased I regret that I am . unable to agree The learned Judge either overlooked or failed . , to give sufficient consideration to the evidence of PW and PW 1 as fully set out above . Such evidence as can be seen , , constituted direct evidence I have come to the inescapable . conclusion therefore that the trial court’s finding in this regard , , amounted to a misdirection entitling this court to consider the facts afresh In adopting this approach I draw comfort from , . the fact that the learned Judge a quo made no credibility findings against PW and PW 2. But first the law on self - defence . [14] As this Court said in Serame Linake v Rex C of A CRI N ) 0. ( 10/08 the principles applicable in self defence are well - – established in this jurisdiction following the case of R v Attwood 1946 AD 331 . The essential requirement which must be established for a successful defence of self defence is that it - must appear as a reasonable possibility on the evidence that :- (1) theaccusedhadbeenunlawfullyattackedand hadreasonablegroundsforthinkingthathewas indangerofdeathorseriousinjuryatthehands ofhisattacker ; themeansheusedindefendinghimselfwere (2) notexcessiveinrelationtothedanger and ; themeansheusedindefendinghimselfwere (3) theonlyorleastdangerousmeanswherebyhe couldhaveavoidedthedanger . [15] On a proper appraisal of the undisputed facts as fully highlighted above there can be no doubt in my mind that the , respondent’s fatal stabbing of the deceased fails to pass muster on any of the three requirements necessary for a successful plea of self defence - It was not disputed for that matter that . the respondent stabbed the deceased two times with a knife . This in circumstances where the deceased was unarmed and , obviously posed no threat to her . [16] On the other hand this Court reminds itself that the onus was on the Crown to prove its case beyond reasonable doubt . It is a significant factor against the Crown that not a single question was put to the respondent that in stabbing the deceased with a knife she must have foreseen the possibility that the deceased would die This naturally means that she was never given an . opportunity of dealing with that crucial aspect of the case . In fairness to him Adv Mokorosi for the Crown very properly in , . , my view conceded this point , . [17] Equally of importance in my view is the fact that at the time of , , the alleged commission of the offence the respondent was a young girl of 17 years of age . Her acts must therefore be judged against the fact that she was immature . In fact in terms of s of the Children’s Protection Act 2 1980 she was still a child Furthermore it is a fundamental principle that the court . , should not adopt the role of an armchair critic of being wise , after the event As was correctly said by Holmes JA in S v De . Bruyn en’n Ander 1968 (4) SA 498 ( at A ) 507:- “Whatisneededinthesecasesisdown to earthreasoningwith - - aviewtoascertainingwhatwasgoingoninthemindsofthe appellants Thisinvolveslookingatallthefacts ontheground , . asitwere andallowingforhumanfactorssuchastherobust , truismthat whenthebloodisup reasonisapttorecede or ; , , thehumanfrailtythat whenintoxicatingliquorhasbeenimbibed , toofreely sensitivityisapttobecomeblunted sothatamanmay , , dothingswhichsoberhewouldnotdo Onemusteschewany . tendencytowardlegalisticarmchairreasoning leadingfacilely , tothesuperficialconclusionthattheaccused‘musthaveforeseen’ the possibility of resultant death And one must avoid any . hindsight tendencytodrawtheinferenceinquestionfromthefact ofdeath Onemustalsobecarefulaboutapplyingthe . rubber stampmaximthat‘apersonispresumedtointend - thenaturalandprobableconsequencesofhisact’ Forone . thing themaximcontainsadeceptiveblendingofthe , subjectiveandtheobjective Howfaristheforeseeablethe . testoftheforeseen Foranotherthing thisCourthasbeen ? , movingawayfromthenotionofso calledpresumptions - arisingfromselectedfacts becausetheyinvolvepiecemeal , processesofreasoningandrebuttal see . . atp H and . . S v Snyman . 569 , . 589p H. ; SA , 1968 (2) . . 582 ( . .) TheCourtpreferstolookatallthefacts andfrom , AD at S v Sighwala supra , thattotalitytoascertainwhethertheinferenceinquestioncan bedrawn” . [18] It is necessary to digress here and address a statement which the learned Judge made in paragraph [11] of his judgment He . said this :- “ Theprinciplesofourcriminallawhaveneverdemarcated [11] any‘brightlines’markingacleardistinctionbetweenthe crime of culpablehomicideandofmurderwithextenuating [ ] circumstances” . I consider it to be settled law however , that the true test is , whether in assaulting the deceased the accused foresaw the possibility of resultant death and nevertheless persisted regardless whether it ensued or not . If so he is guilty of , murder . If on the other hand he ought reasonably to have foreseen the possibility of resultant death and such death ensued he is guilty of culpable homicide See for example , . , , S v Ntuli 1975 (1) SA 429 ( A at 437; ) R v Selibo And Others 2000 – 2004 LAC 977 at 979 – 980. Indeed this Court held in Phumo v Rex 1990 – 1994 LAC 146 at 149 and it bears repeating that :- thedistinctionbetweensubjectiveforesightand “ ……. objectiveforeseeabilitymustnotbecomeblurred . The factumprobandum isdolus, twodifferentconceptsnevercoincide” notculpa These . . [19] In summary the relevant , facts show that the respondent rushed to the defence of her frail and ailing sister She had in . her possession a knife which she had been using at the material time to cut vegetables Naturally her blood must have . , been up more especially considering her , tender age . I consider that the respondent , in her immaturity did not have , time to weigh up the consequences of her actions Crucially it . , was never suggested to her in cross examination that she did . - It follows from these considerations in my view that the Crown , , failed to prove beyond reasonable doubt that the respondent had the necessary intention to kill either in the form of direct , intention dolus directus) ( or in the form of an indirect intention dolus eventualis ( ). The latter situation would obtain if she foresaw the possibility of resultant death but was reckless whether or not it ensued . Having said that however , there cannot be any slightest doubt in my mind on the totality of the , evidence that , the respondent ought reasonably to have foreseen the possibility of resultant death in the circumstances . S v Ntuli . ) . ( supra She was therefore correctly found guilty of , . , culpable homicide . [20] In the result the appeal is dismissed . __________________________ . M M RAMODIBEDI PRESIDENT OF THE COURT OF APPEAL . I agree : _________________________ . . F H GROSSKOPF JUSTICE OF APPEAL I agree : __________________________ . D G SCOTT JUSTICE OF APPEAL . For Appellant For Respondent : : Adv L L Mokorosi . . . Adv L A Mofilikoane . . .