IN THE COURT OF APPEAL OF LESOTHO
C OF A (CRI) 9/09
In the matter between:
M. SCOUT APPELLANT
Heard : 8 APRIL 2010
Delivered: 23 APRIL 2010
Appeal against conviction on two counts of murder – Defence of temporary non-pathological incapacity raised – Onus on Crown to disprove – Approach to be followed in evaluating such defence – Consideration of evidence – Held appellant did not suffer from criminal incapacity – Appellant correctly convicted on both murder counts – Further appeal against sentence successful – Sentence reduced.
 The appellant was charged in the High Court with two counts of murder (counts 1 and 2) and two counts of attempted murder (counts 3 and 4). It is common cause that on 22 August 2003 at or near Ha Peete in the district of Quthing the appellant shot and killed the late Liqabang Mohlerepe (“the first deceased”) and Mothebesoane Nkoho (“the second deceased”), to whom counts 1 and 2 respectively relate. It is also common cause that on the same date and at the same place he shot and wounded the complainants in respect of counts 3 and 4. The appellant pleaded not guilty to all four counts. He raised the defence of temporary non-pathological criminal incapacity as a consequence of extreme emotional stress coupled with an excessive intake of alcohol. The trial judge (Majara J) rejected his defence in respect of counts 1 and 2 and convicted him of murder in respect of those counts; she upheld the defence in respect of counts 3 and 4 and acquitted the appellant on those counts. The learned trial judge held that extenuating circumstances were present in relation to counts 1 and 2 and sentenced the appellant to 15 and 12 years imprisonment respectively on those counts, the sentences to run concurrently. The present appeal is directed against the appellant’s convictions and sentences on those counts.
 At the time of the shooting the appellant was a member of the Lesotho Defence Force (“the LDF”). So too were the two deceased and the two complainants. It is common cause that on the night in question they, together with the appellant and other members of the LDF, were drinking at a beer hall generally referred to in evidence as “Mr. Ntho’s place”. There were also a number of villagers present. According to the Crown witnesses, the appellant was somewhat under the influence of liquor and behaving in an argumentative and aggressive manner. Some of his fellow soldiers tried to calm him down, but in vain. The second deceased, who was a sergeant, and the appellant’s immediate superior, also tried to intervene, but equally to no avail. His attempted intervention was met with the retort from the appellant that “you cannot be my boss at work and at a beer hall”. The appellant also complained that the LDF had denied him justice for a long time. The second deceased did nothing further. At that point the appellant left Ntho’s place.
 It is common cause that the appellant then returned to the base where he was stationed. The base was approximately half a kilometre from Ntho’s place. When he arrived back at the base he was visibly upset and crying. According to the Crown’s evidence the guard on duty had his assault rifle wrested from him by the appellant. (The appellant denied having physically dispossessed the guard of his rifle, but admitted to taking the rifle which was lying openly on a bed in his room.) Be that as it may, the appellant returned to Ntho’s place with the rifle. The rifle in question was capable of firing 30 rounds.
 For reasons that will appear more fully later, the appellant’s avowed intention in acquiring the rifle and returning to Ntho’s place was in order to shoot and kill the second deceased. The evidence establishes that immediately before or upon entering Ntho’s place (about which more later) the appellant fired the shot which killed the first deceased when the latter tried to block his way. When entering, the appellant is alleged to have said “civilians one side and soldiers on the other side”. He then approached the second deceased and shot him in the head. Further shots were fired by the appellant both inside and outside Ntho’s place in the course of which the complainants in counts 3 and 4 were wounded. The admitted post-mortem reports revealed that the first deceased had died from a gunshot wound of the left chest which had penetrated the left lung, and the second deceased from brain damage resulting from a gunshot wound to the head.
 After the shooting, the appellant returned to his base where he appears to have attempted to commit suicide by shooting himself under the chin, apparently in the expectation that the bullet would pass through his brain and kill him. This did not eventuate, the bullet passing through his nose instead. While in hospital he apologised to one of the injured complainants claiming that he had no intention of shooting him. He also expressed remorse at the shooting of the first deceased, with whom he had been on friendly terms.
 The events as set out above are only challenged by the defence to the extent that the appellant (1) disputes (as mentioned above) the circumstances in which he acquired the rifle; (2) claims that the first deceased was shot accidentally while he struggled with the appellant for possession of the rifle; and (3) denies uttering the words “civilians one side and soldiers on the other side” when he entered Ntho’s place upon his return.
 Prior to the commencement of his trial the appellant was examined and assessed by both a psychiatrist, Dr. Shaikh, and a clinical pychologist, Prof. Louw. The former testified on behalf of the Crown; the latter was called as a witness for the defence. There was never any suggestion that the appellant was not fit to stand trial. From their examinations it was apparent that the appellant’s cognitive functions were intact. Furthermore he was able to give a full account of the events preceding and following the shooting on the day in question.
 From the evidence of Dr. Shaikh, Prof. Louw and the appellant the following relevant picture emerges. The appellant is a person of above average intelligence. As a youngster he associated with bad company, was given to drug and alcohol abuse, and was at times impulsive and aggressive. This notwithstanding, he was a sensitive individual and a good student. He completed his A levels satisfactorily and commenced reading for a B.Sc degree at the National University of Lesotho. Financial restraints however caused him to abandon his studies. He joined the LDF in February 2002 and did his basic training. Later he applied for, and was accepted to undergo, commando training. Before completion of the course he was involved in an altercation with certain other trainees as a result of which he was disqualified from graduating because of ill-discipline and sent back to his platoon.
 When the appellant joined the LDF he was assigned to platoon 3 of the Bravo company. There he was supervised by amongst others the second deceased. From the outset their relationship was not a happy one. According to the appellant he was constantly belittled and humiliated by the second deceased, called hurtful names by him and given menial and demeaning tasks to fulfill. Upon his eventual return to platoon 3 after his unsuccessful attempt to qualify for the commandos, he discovered that the second deceased had moved to platoon 1. The second deceased arranged for the appellant’s re-assignment to that platoon and his previous pattern of behaviour towards the appellant continued unabated. Although the appellant claimed that he complained to higher authority about the second deceased’s conduct, his complaints fell on deaf ears. The situation which pertained caused him considerable emotional stress and disillusionment with the LDF.
 The appellant testified that on the day in question he was a member of a detail assigned to escorting the Prime Minister to a rally. When released from duty after 1 pm he and a number of colleagues partook of brandy before returning to their base. They then proceeded to Ntho’s place where they drank beer. There he became involved in an altercation with the second deceased who again belittled him and called him names. He then left, deeply upset, and returned to the base, from where he later returned with a rifle in his possession and embarked upon the shooting testified to by the Crown witnesses. According to the appellant he had decided to kill himself, but planned to kill the second deceased first.
 The learned trial judge, in a comprehensive and well reasoned judgment, came to the conclusion on all the evidence that despite the fact that the appellant’s capacity to appreciate the wrongfulness of his conduct was seriously diminished at the time the fatal shots that caused the death of the two deceased were fired, he was able to distinguish between right and wrong and act in accordance with such appreciation. She further held that the evidence established that the appellant had the necessary intention to kill both the first and second deceased. She concluded, however, that the situation changed after the second deceased was shot. At that point, as testified by Prof. Louw, “the dam wall broke”, the appellant was overwhelmed by the events that had occurred, totally lost control and when he started firing indiscriminately, wounding the complainants on counts 3 and 4, he lacked the necessary criminal capacity to render him responsible for his actions. She accordingly convicted the appellant on counts 1 and 2, and acquitted him on the remaining two counts.
 On appeal Adv Ndebele for the appellant essentially advanced three arguments. They were (1) that the court a quo erred, having regard to the evidence, in not acquitting the appellant on counts 1 and 2 on the grounds of non-pathological criminal incapacity; (2) that even if the appellant possessed the necessary criminal capacity, the evidence did not establish an intention on his part to kill the first deceased and that he should therefore not have been convicted of murder on count 1; and (3) that interference with the sentences imposed was justified on the grounds of misdirection and/or the sentences being shockingly inappropriate. I shall deal with each of these in turn.
 The test for criminal responsibility in Lesotho, and where the onus of proof lies in a matter such as the present, appears from the judgment of this Court in Director of Public Prosecutions v Moteane 2000-2004 LAC 142 where the following was said at 147H-148E:
“To be held liable for his deeds an accused must at the time of the offence be criminally responsible. To be criminally responsible the accused’s mental faculties must be such that he can justifiably be blamed for his conduct. The recognized characteristics of criminal responsibility are:
The ability to distinguish between right and wrong;
The ability to act according to that distinction by possessing the necessary willpower to resist the temptation to act wrongfully.
If either of these two characteristics is absent, the accused cannot be held criminally responsible. See S v Laubscher 1988 (1) SA 163 (A) at 166. It is trite law that a voluntary act is an essential element of criminal responsibility. Where the commission of such an act is put in issue on the ground that the absence of voluntariness was attributable to a cause other than mental pathology, the onus is on the Crown to establish that element beyond reasonable doubt. See S v Henry 1999 (1) SACR 13 (SCA) at 19H-J.
Although the onus is on the Crown to show that the accused had the necessary capacity, where an accused person relies on non-pathological causes in support of a defence of criminal incapacity, he is required to lay a factual foundation for it in evidence, supplemented to create at least a reasonable doubt as to whether he had that mental capacity. S v Nursingh 1995 (2) SACR 331 (D) at 334B-C.”
 In Moteane’s case further reference was made (at 149 H-I) to the judgment in S v Henry (supra) where it was pointed out by Scott JA (now a member of this Court) that a defence such as non-pathological criminal incapacity requires to be carefully scrutinized. The relevant passage in Henry’s case (at 20c-e) reads as follows:
“By the very nature of things the only person who can give direct evidence as to the level of consciousness of an accused person at the time of the commission of the alleged criminal act, is the accused himself. His ipse dixit to the effect that this act was involuntarily and unconsciously committed must therefore be weighed up and considered in the light of all the circumstances and particularly against the alleged criminal conduct viewed objectively. It is not sufficient that there should merely have been a loss of temper. Criminal conduct arising from an argument or some or other emotional conflict is more often than not preceded by some sort of provocation. Loss of temper in the ordinary sense is a common occurrence. It may in appropriate circumstances mitigate, but it does not exonerate. On the other hand, non-pathological loss of cognitive control or consciousness arising from some emotional stimulus and resulting in involuntary conduct, ie psychogenic automatism, is most uncommon. The two must not be confused.”
 With regard to the discharge of the onus of proof the following was said by Scott JA in S v Cunningham 1996 (1) SACR 631 (A) at 635j-636b:
“In discharging the onus upon it the State, however, is assisted by the natural inference that in the absence of exceptional circumstances a sane person who engages in conduct which would ordinarily give rise to criminal liability does so consciously and voluntarily. Common sense dictates that before this inference will be disturbed a proper basis must be laid which is sufficiently cogent and compelling to raise a reasonable doubt as to the voluntary nature of the alleged actus reus and, if involuntary, that this was attributable to some cause other than mental pathology.”
Furthermore, in S v Kok 2001(2) SACR 106 (SCA) Scott JA noted (at 115j-116a):
“Loss of temper, that is to say a failure to control one’s emotional reactions, is not to be confused with a loss of cognitive control (see
S v Henry 1999 (1) SACR 13 (SCA) at 20d-f). The fact that he could recall these events some days later indicates that he knew what he was doing and is inconsistent with the hypothesis that he was re-enacting some memory in a dissociative state.”
 In my view the considerations that apply to the defence of temporary non-pathological criminal incapacity as postulated in the South African cases referred to above and the case of S v Eadie 2002 (3) SA 719 (SCA), which undertook an exhaustive review of the relevant authorities, should have equal application in Lesotho, and the defence raised by the appellant is to be adjudicated in the light thereof. This in turn involves careful scrutiny of the evidence in support of such defence, an evaluation of all the relevant facts of the case, including the nature of the appellant’s conduct during the period in question, and due regard being paid to the available expert evidence. (See S v Eadie (supra) at 724 A-B.)
 One may accept, as did the judge a quo, that the appellant suffered abuse over a period of time at the hands of the second deceased; that this caused him significant stress and anxiety bearing in mind his sensitive nature; that he had been unable to extricate himself from his unhappy predicament; that the further altercation with the second deceased on the night in question, in conjunction with the appellant’s intoxicated state, had exacerbated the situation; and that when he left Ntho’s place he was considerably distressed emotionally to the point of tears. These circumstances plus his belief that the LDF had failed him, as expressed at the time of the shooting, provide an explanation for his further conduct that night.
 It is not possible from the available evidence to gauge the extent of the appellant’s intoxication. The fact that over a relatively short period he was able to proceed on foot in the dark to the base (a distance of approximately half a kilometre), obtain possession of a rifle and return to Ntho’s place, suggests he could not have been too heavily intoxicated.
 The only reasonable inference to be drawn from the Crown’s evidence is that the appellant returned to the base to acquire a firearm, succeeded in doing so by dispossessing the guard on duty of his rifle, and then returned to Ntho’s place with the intention of shooting the second deceased. If the appellant’s evidence is to be believed, when he returned to base he did not initially intend to go back to Ntho’s place. He denied having been engaged in a struggle with the guard on duty over the rifle. According to the appellant he found the rifle where it had been left lying on his bed in the room he occupied, and he took it because it was his turn to do guard duty. It was then that he formed the intention to kill himself, and decided that before doing so he would shoot the second deceased. This led to his returning to Ntho’s place.
 It is not necessary to decide which version should be accepted, because on either version it would seem that although the appellant’s mental capacity was diminished, his cognitive processes were otherwise functioning satisfactorily, at least up to the point when he shot the second deceased. This is consistent with the views expressed by Prof. Louw on a proper reading and understanding of his evidence. In this regard he stated, inter alia: “so I would like to put it clearly that his mental capacity was diminished but not to such an extent that he did not know what he was doing.” This finds further confirmation in the fact that when subsequently interviewed by Dr. Shaikh and Prof. Louw the appellant was able to give a full account of the events of the fatal day; his attempt after the shooting to commit suicide which Prof. Louw likened to “the ultimate proof of remorse where you know that you did wrong and that is to kill yourself - he tried to do that but he was unsuccessful”; and the fact that he later apologized for his conduct in so far as it led to the death of the first deceased and the wounding of the complainants.
 A further relevant consideration regarding the issue of criminal capacity is that the appellant, on his return to Ntho’s place, had the presence of mind, before shooting the second deceased, to order a separation of soldiers and civilians. Although the appellant disputed that he uttered the words attributed to him, the Crown witnesses corroborated each other in that respect. Apart from that their evidence in that regard has a ring of truth to it. In my view the judge a quo correctly accepted that the appellant uttered the words in question. Everything points to the fact that when he shot the second deceased the appellant, despite his diminished responsibility, was conscious of what he was doing, was capable of appreciating the wrongfulness of his conduct, and acted in accordance with such appreciation. In my view, on a conspectus of the evidence, the Crown proved that the appellant had the relevant criminal capacity at the time when he shot the first and second deceased. The question remains whether the circumstances in which the first deceased was fatally shot constituted a lesser crime than murder.
 The appellant’s evidence with regard to the shooting of the first deceased was contradictory. According to the appellant he encountered the first deceased outside Ntho’s place. In his evidence in chief he said “I don’t recall whether we (sic) struggled over the firearm with Mohlerepe or not”. Yet under cross-examination he elaborated on how the first deceased had tried to prevent him from passing, how they wrestled over the possession of the rifle and how it eventually accidentally went off in the course of the struggle while it was pointed at the first deceased’s chest. The post-mortem report reflects that the bullet that killed the first deceased passed through his chest more or less horizontally. Such a trajectory would appear to be incompatible with a long firearm going off accidentally in the course of a close struggle. However, there was no medical or ballistic evidence led in that regard.
 By contrast the evidence of the witness Teboho Sekhonyana (PW2) is to the effect that the first deceased was inside, close to and approaching the door when he was shot by the appellant, and that he then fell outside. There was no suggestion in his evidence of any preceding struggle over the rifle before he was shot. Nor was Sekhonyana’s evidence in the above regard challenged under cross-examination. One can only infer that the appellant’s evidence with regard to a struggle over the rifle, and the rifle going off accidentally, was something of an afterthought. In my view the appellant was, in the circumstances, correctly convicted on count 1.
 That leaves the question of sentence. I am mindful of the fact that sentence is pre-eminently a matter in the discretion of the trial court and that interference with a sentence is only justified on limited grounds. In her judgment on sentence the learned trial judge placed considerable emphasis on the seriousness of the crime of murder and that, quoting from a previous judgment of this Court, “it is in the interests of society that people convicted of murder be put away for a long time.” None the less, a sentence for murder must be individually tailored to the facts of each case. Thus some cases call for heavier sentences than others. It is clear from the evidence that at the time of the shooting of the two deceased the appellant’s capacity to appreciate the wrongfulness of his conduct was, in the words of Prof. Louw, “seriously diminished”. This is a very important consideration in the assessment of sentence. When dealing with the merits and extenuation the trial judge showed appreciation of this fact. While there was much to be taken into account in mitigation of sentence, and the trial judge was at pains to have regard thereto in order to arrive at a balanced and fair sentence, she somewhat surprisingly did not again specifically refer to the question of diminished capacity in her judgment on sentence. This suggests that she did not afford that aspect sufficient weight when assessing sentence, which would amount to a misdirection. There is also no apparent reason why she drew a distinction between the sentences on counts 1 and 2, when both counts essentially arose from the same somewhat unique and unfortunate set of circumstances. In my view an appropriate sentence in the circumstances of the present matter would be one of 10 years imprisonment on each count (cf S v Kok 2001(2) SACR 106 (SCA). Interference with the sentences imposed is therefore justified.
 In the result the following order is made:
1. The appeal against the convictions on counts 1 and 2 is dismissed.
2. The appeal against the sentences on counts 1 and 2 succeeds. The sentences are set aside and are replaced with the following:
“Count 1: Ten (10) years imprisonment
Count 2: Ten (10) years imprisonment.
The sentences on counts 1 and 2 are to run concurrently.”
JUSTICE OF APPEAL
I AGREE :
JUSTICE OF APPEAL
I AGREE :
JUSTICE OF APPEAL
For Appellant : Adv. K. Ndebele
For Respondent : Adv. T. Mokuku