Lehloenya v R (CRI/A 28 of 99) [2000] LSCA 28 (8 February 2000)

CRI/A/28/99 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: T H O L A NG L E H L O E N YA A P P E L L A NT and R E X R E S P O N D E NT J U D G M E NT Delivered by the H o n o u r a b le M r. Justice G . N. M o f o lo on the 8th d ay of February. 2 0 00 T he appellant w as charged in the Subordinate C o u rt of the District of Leribe it being alleged that C o u nt 1 T he said a c c u s ed is c h a r g ed with attempted m u r d er in that u p on or a b o ut the 2 nd d ay of S e p t e m b e r, 1 9 94 near or at Ha Lejone. in the Leribe district the said a c c u s ed did unlawfully a nd acting unlawfully a nd with intent to kill did shoot at o ne Peter Titisi Sefali. C o u nt II T he said a c c u s ed is c h a r g ed with the offence of assault with intent to c a u se grievous bodily h a rm in that u p on or a b o ut the 2 nd d ay of S e p t e m b e r, 1 9 94 near or at Ha L e j o ne in the district of Leribe the said a c c u s ed did unlawfully a nd intentionally assault M o r e n e ne L e t h a ha w i th a blunt object on his b o dy with intent to c a u se h im grievous bodily h a r m. C o u nt III T he said accused is c h a r g ed with the offence of Assault with intent to do grievous bodily h a rm in that u p on or a b o ut the 2 nd d ay of S e p t e m b e r, 1 9 94 near or at Ha Lejone in the district of Leribe the said a c c u s ed did unlawfully a nd intentionally assault o ne L e h l o h o n o lo P h a k oe with fists on his b o dy with intent to c a u se h im grievous bodily h a r m. It is to be noted that the offences charged occurred at o ne place a nd on the s a me day. T he magistrate h ad convicted the a c c u s ed on all the three(3) counts a nd sentenced h im to 5 years i m p r i s o n m e n t, M 2 0 0 - 00 or 2 years i m p r i s o n m e nt a nd M 2 0 0 - 00 or 2 years i m p r i s o n m e nt respectively. It w as also ordered that sentences run consecutively. T he appellant h ad l o d g ed an appeal on g r o u n ds that: 1. T he learned magistrate misdirected herself in holding that the version of the prosecution outlining the m a n n er of the infliction of the injuries on c o m p l a i n a nt in the first c o u nt w as not challenged. 2. T he learned magistrate misdirected herself in rejecting the version of the a c c u s ed w h en s u ch version w as reasonably possibly true. 4. T he j u d g m e nt of the learned magistrate is against the w e i g ht of e v i d e n ce a nd b ad in law. 5. T he sentence of the magistrate is harsh a nd induces a sense of s h o c k. Before this court in a r g u m e nt M r. M a t h a f e ng for the appellant c o n c e r n i ng C o u nt I said it w o u ld s e em P . W .6 h ad rushed at the appellant to fight h im a nd w h i le P . W .6 w as e n g a g ed in a s c u f le w i th the appellant the latter h ad p r o d u c ed a g un a nd then there followed a struggle b e t w e en P . W .6 a nd the appellant for the control of the g u n. T h is struggle h ad attracted P . W .2 w h o, on a d v a n c i ng on the appellant a nd P . W .6 h ad b e en shot. M r. M a t h a f e ng has submitted it is w r o ng to say appellant shot P . W .2 for the shot w as discharged while appellant a nd P . W .6 w e re struggling for the possession of the g un a nd this v i e w ed f r om a ny angle it could not be said that the appellant had the necessary intention to shoot P . W . 2. As for P . W . 6, M r. M a t h a f e ng says it's true he w as injured but here again it w as in course of the fracas w h i ch h ad e n s u ed b e t w e en the appellant a nd P . W .6 a nd it cannot be said appellant h ad the intention to injure P . W . 6. He says in going off it is w r o ng to say the g un w as pointed in a particular direction or for that matter in P. W.2's direction as then the appellant had had no altercation with P . W .2 a nd h ad no reason to point a firearm at him. It w as also w r o ng to say that appellant discharged the shot that injured P . W .2 based on the inference by the court a quo that because the g un w as appellant's he must have pressed the button. M r. Mathafeng says facts as deposed to by P . W .2 are not in h a r m o ny with w h at actually h a p p e n ed for P . W .2 says he w as hardly 2 steps into investigating the squabble w h en he w as shot. He says w h e re there is no intention the law d o es not punish. He says w h e re a shot g o es off in a struggle for possession of the gun there can be no question of negligence. He says in struggling over the possession of the g un appellant w as defending himself and that to this extend appellant's version could reasonably be true. According to M r. Mathafeng. appellants story w as that he w as being attacked by P . W .6 a nd his fellow e m p l o y e es with sticks a nd knives a nd the appellant w as entitled to resort to m e a ns at his disposal to repel the attack. He says commensurability of w e a p o ns is not the n o rm for this w o u ld m a ke m o c k e ry of self- defence. He says an eye for an e ye has no r o om in the practice of law. He says in C o u nt I the version of the c r o wn is not consistent with probabilities nor is appellant's version so demonstrably false as to be rejected out of hand. He says the court a q uo failed to apply its m i nd to whether appellant's story could h a ve b e en reasonably true. As for C o u nt II M r. M a t h a f e ng has admitted that appellant b l u d g e o n ed P. W .5 with the g un in w a r d i ng off the attack by P . W .6 a nd his c o - e m p l o y e es a nd according to P. W.2's evidence this h ad occurred before P . W .2 w as shot. He says w h i le the assault is admitted it w as not unlawful for it w as in course of the appellant d e f e n d i ng himself f r om P . W .6 a nd his c o - e m p l o y e es attack a nd in the event appellant w as entitled to repel the attack. He says there's n e x us b e t w e en P . W .5 a nd P . W .6 for they w e re P. W.2's (Sekhele's) e m p l o y e e s. M r. M a t h a f e ng says the aggressor w as P . W 6 a nd but for his aggression the incidents w o u ld not h a ve materialised. M r. M a t h a f e ng says in C o u nt I & II there w as no corroboration. He says P . W .5 is the only witness of h ow he sustained his injury in C o u nt 11 while in C o u nt 3 P . W .6 is the only witness as to cause of the assault. He says p u n c h i ng or b o x i ng o ne c a n n ot a m o u nt to G r i e v o us Bodily H a r m. He says sentences w e re harsh considering complainants h a ve fully recovered. M r. Kotele for the c r o wn has submitted that the totality of e v i d e n ce before the court a q uo h ad s h o wn appellant to h a ve pointed a g un at P . W .2 - a fact testified to by P . W . 3, 5 & 6. He says no witness testified to appellant being attacked with sticks a nd knives nor has D . W. 1 supported appellant's story. W h i le agreeing it w as in a beerhall, M r. Kotele says there is no e v i d e n ce as to the state of d r u n k e n n e ss of the appellant. M r. Kotele says it w as in fighting with P . W .6 that P . W .5 in intervening P . W .5 sustained a scratch, a swollen right e ye a nd bled. He agrees offences c o m m i t t ed at the s a me time s o m e t i m e s, am concurrently. P . W .2 Peter Titisi Sefali's evidence is that he w as shot by the appellant to w h om he had previously s p o k en to. A c c o r d i ng to P . W . 2, he h ad a s k ed appellant to go to his office alternatively to h a nd o v er his g un to h im to k e ep a nd surrender the s a me the following d ay to appellant's office. A c c o r d i ng to the witness appellant h ad asked for pardon. W h en appellant h ad a s k ed P . W .2 to go outside a nd h a ve a chat, P . W .2 h ad declined the invitation saying he w as tired. Later P . W .2 h ad received a report relating to M o r e n e ne w ho h ad sustained a w o u nd a nd w as bleeding on his head. In trying to go to the appellant the latter h ad shot h i m, so said P . W . 2. He says w h en he w as shot by a c c u s ed no w o rd h ad b e en uttered b e t w e en the a c c u s ed a nd P . W . 2. In cross-examination P . W .2 h as denied that it w as while appellant w as fighting over the g un with P h a k o e, ( P . W . 6 ), M o r e n e ne ( P . W . 5) a nd other e m p l o y e es of S e k h e le ( P . W . 1) that that g un w e nt off. Actually question w a s, at p. 13 of the record: ' A c c u s ed will tell the court that at time he shot y o u, it w as an accident b e c a u se he w as fighting over the g un as P h a k o e, M o r e n e ne a nd other e m p l o y e es of S e k h e le w e re fighting for that g u n, is that s o ?' A n s w e r: T h at is not true. P W . 2 's evidence w as denial of an accident or that the appellant shot h im accidentally. A c c o r d i ng to P . W . 3, he h ad seen appellant a nd P h a k oe pulling e a ch other a nd did not k n ow if they w e re fighting. It w as P. W.3's e v i d e n ce that he h ad suggested P . W .2 talk to appellant a nd P h a k oe but e v en before P . W .2 did so he h ad seen appellant shoot at P . W . 2. A c c o r d i ng to P . W . 3, appellant w as holding his g un in his left h a nd w h en he shot at P . W . 2; according to the witness, the appellant a nd P h a k oe w e re standing close to e a ch other w h en appellant shot at P . W .2 a nd appellant a nd P h a k oe w e re not fighting. T he witness says appellant h ad pointed the g un at P . W . 2. In a n s w er to counsel for the defence, the witness testified that w h en P . W .2 w as shot P h a k oe a nd a c c u s ed h ad stopped pulling at e a ch other', see p a ge 16 of the record. T he witness a s k ed on p a ge 16 of the record w h at he said to P . W .2 replies on p. 17 by saying: A n s w e r: 'I said I s aw a c c u s ed w as pulling at P h a k oe a nd that 1 w as g o i ng to close d o wn the a c c o r d i on m u s ic so that P . W .2 could find out w h at they w e re fighting for a nd e v en before I did that 1 s aw accused pull out his g un by his left h a nd a nd shoot at P . W . 2 .' It w as also P. W.4's e v i d e n ce that a c c u s ed shot at P . W .2 w h i le the latter w as a d v a n c i ng t o w a r ds the appellant (see p a ge 20 of the record). P. W.4's evidence in material respects w as no different especially his reference to 'accused holding his g un with his left h a n d' a nd ' P . W .2 going t o w a r ds a c c u s e d / ( p a ge 20 of the record). Clearly, because P . W .2 w as going t o w a r ds the appellant the latter m u st h a ve figured that P . W .2 w as a threat to h i m. P. W.5's evidence w as to the effect that he h ad h e a rd a g un shot as a result of w h i ch P . W .2 fell. He h ad h ad a quarrel with appellant o v er fish; after o p e n i ng the tin offish appellant h ad taken it a nd eaten it. A c c u s ed h ad then taken out a g un a nd bruised the witness on the h e ad with it. He says before appellant assaulted h im he h ad not fought a c c u s ed in a ny w a y. He says w h en he h e a rd a g un report he h ad already sustained the injury. In cross-examination at p a g es 27 - 28 of the record this w as P. W.5's evidence: Q. A c c o r d i ng to y o ur evidence, the a c c u s ed assaulted y ou with a g u n, did y ou ever report y o ur case in relation to that incident to the police? A. N o. Q Do y ou agree with me that y ou h a ve b e en forced to c o me a nd say y ou w e re assaulted? A. I realised that. Despite the a n s w e r, notice that the witness insisted appellant hit h im with his g un causing the witness to run a w ay f r om appellant. A l so please notice a question a s k ed by counsel for appellant at p.31 of the record, n a m e l y: Q. A c c u s ed says he took out the g un a nd hit y ou with it as y ou fought h im for having eaten y o ur fish a nd he say y ou w e re a r m ed with a knife too? A. T h at is not so. Q, A. Q. He says he held o ne person w ho w as a r m ed with a knife a nd o ne of the people held his left h a nd in w h i ch he w as holding the g un with w h i ch he h ad assaulted y o u? T h at is not so. T h e re w e re only t wo of us w h en he hit me with his g un I did not see a n y b o dy hold accused's g u n. A c c u s ed tells me that it w as as that other person w as holding his g un that a bullet w as fired a nd that bullet hit the complainant out? A. I do not k n ow about that. A c c o r d i ng to P . W .6 appellant h ad a s k ed h im to b uy b e er for h im a nd w h en he said he h ad no m o n ey for beer a c c u s ed h ad said Tlale's driver's w e re selfish a nd h ad hit h im with a fist b e l ow his right e y e. He h ad then g o ne to a c c u s ed intending to fight b a ck a nd by putting his right h a nd by his wrist he k n ew appellant w as taking out a gun. He says he held to a c c u s e d 's right h a nd a nd a c c u s ed h ad taken out the g un with his left h a nd a nd as he did so he shot at P . W .2 w ho w as standing b e h i nd the counter (see p a ge 32 of the record). He says at the time appellant shot at P . W .2 no o ne w as fighting the a c c u s ed (see p.33 of the record). It will be s e en that in his allegations the appellant has no support f r om either the c r o wn witnesses or his o wn witness D . W . I. To be precise, according to D . W .1 T p r. Sefali, appellant w as fighting with P . W .5 a nd other people w e re intervening. A c c o r d i ng to the d e f e n ce witness, he h as not testified that there w as wrestling for the possession of the g un or appellant w as being fought by the host's (P. W.2's) e m p l o y e e s. Of i m p o r t a n ce is this testimony by D W.1 at p.39 of the record: Q. W h at h a p p e n ed to a c c u s ed after he shot at P . W . 2? A. I s aw h im running a w ay a nd p e o p le c h a s ed after h i m. In other w o r d s, D . W .1 admits that it is the appellant w ho shot at P . W .2 a nd ran a w ay after shooting at P . W . 2. If it w as not guilty k n o w l e d ge w h y, then, did the appellant run a w a y? Appellant has said that he w as defending himself a nd the question arises as f r om w h at he w as defending himself. F or eating P W . 5 's fish without authority a nd on b e i ng s t o p p ed by P . W .5 f r om hitting P . W .5 on the h e ad with his (appellant's) g u n? Or is it for P . W .6 refusing to b uy appellant beer a nd protesting he h ad no m o n ey that earned P . W .6 to be p u n c h e d? It w o u ld s e em the appellant w a n t ed e v e r y b o dy to do his bidding lest all suffer. F or all these w r o n g f ul acts appellant says he w as d e f e n d i ng himself. Visser a nd M a r e' in their G e n e r al Principles of Criminal L aw through the cases - 3 rd E d. at p. 181 say to give rise to a situation warranting action in private d e f e n ce or as it w e re self-defence, there m u st be an unlawful attack, w h i ch h as c o m m e n c ed or is imminent, u p on a person's legal interests. T he attacked p e r s on m ay in s u ch a case w a rd off the attack by reasonable m e a ns directed at the attacker. In the first place, no unlawful attack w as directed at the appellant, it is the appellant w ho initiated the attacks. T h e re w as no legal interest the appellant w as protecting a nd the m e a ns he u s ed w e re unreasonable in the circumstances. R . v . Z i k a l a l a . 1 9 53 (2) S. A 508 is illustrative of the c o n c e pt of self: defence. In this case in a c r o w d ed hall the d e c e a s ed s u p p o r t ed by a n u m b er of friends m a de a m u r d e r o us attack u p on the appellant with a businesslike knife. T he appellant a v o i d ed t wo thrusts by d o d g i ng a nd j u m p i ng o v er a b e n c h. To repel further attack, he o p e n ed a small pocket knife then in his possession a nd s t a b b ed the d e c e a s e d. He w as charged with m u r d er a nd he raised private defence. T he trial court thinking the appellant h ad ' g o ne too far' convicted h im as, according to the court, he should h a ve kept on j u m p i ng f r om b e n ch to b e n ch to thwart d e c e a s e d 's attacks. In upholding the appeal, the Appellate Division h ad reiterated attitudes of eminent writers in R o m a n - D u t ch L aw like M a t h a e ns (48 5 3 7 ), M o o r m an (2 2 12) a nd V an der Linden a m o n g st others w ho said w h e re a m an c an save himself by flight he should flee rather than kill his assailant. D a m h o n d er with his ideas of defence against honour is s h o wn as expressing a different viewpoint for, according to him, no one can be expected to take to flight to avoid an attack, if flight d o es not afford h im a safe w ay of escape in that a m an is not b o u nd to e x p o se himself to the risk of a stab w o u ld in the back, w h en by killing his assailant he can secure his o wn safety - see also M o o r m an (2 2 12). As we h a ve seen, in the instant case there w as no unlawful attack u p on the appellant; on the contrary, he deliberately p r o v o k ed P . W .5 a nd P . W .6 a nd having d o ne so assaulted them. T he appellant in the instant case w o u ld h a ve this court believe the appellant w as subject-matter of an attack by P . W .5 a nd his co-workers, a fact w h i ch is not borne out by facts in the case a nd w as denied by prosecution witnesses. It follows that appellant's version of w h at took place cannot be reasonably true and the court a q uo w as justified in believing the prosecution witnesses a nd rejecting the defence version. Courts are creatures of evidence a nd w h e re there is direct evidence as w as the case in the instant appeal, this is to be preferred than engaging in unnecessary speculation and inferences in direct conflict with tendered evidence. This court has read the learned magistrate's j u d g m e nt a nd found she has not, in material respects, misdirected herself. A c c o r d i n g l y, t he a p p e al against convictions is dismissed a nd the convictions are c o n f i r m e d. On sentence, it h as variously b e en pressed h o me that it is better if doctors give e v i d e n ce in support of their m e d i c al reports b u sy as doctors are. T he a d v a n t a ge of doctors giving e v i d e n ce is that they are able to amplify their reports a nd bring the court on b o a rd to appreciate the n u a c es of m e d i c al e x a m i n a t i o n. In this c a s e, the m e d i c al reports are clear a nd the d e f e n ce freely a d m i t t ed their production a nd c o n s e q u e n t ly there is no prejudice. En the result the a p p e al on sentence is also dismissed a nd the sentences are c o n f i r m e d. By reason, h o w e v e r, of the offences h a v i ng occurred at the s a me t i me a nd place, it is o r d e r ed that sentences on the three ( 3) c o u n ts run concurrently. G . N . M O F O LO J U D GE 24th J a n u a r y, 2 0 0 0. For the Applicant: M r. M a t h a f e ng For the C r o w n: M r. Kotele