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Potsanyane and Another v R (C OF A (CRI) N0. 10/09)
IN THE COURT OF APPEAL OF LESOTHO
C OF A (CRI) N0. 10/09
In the matter between:
MPHOTO POTSANYANE FIRST APPELLANT
TŠEPISO KABI SECOND APPELLANT
CORAM: RAMODIBEDI, P
HEARD: 13 APRIL 2010
DELIVERED: 23 APRIL 2010
Criminal law – Murder – Ballistic evidence – Requirements – A missing link in the chain of proof sought to connect the appellants with the fired cartridge and the firearm alleged to have been used in the killing of the deceased – The appeal upheld – Both convictions and sentences set aside.
 On the night of 15 March 2004, and at or near a place called Mantša-tlala, Roma in Maseru district, one Ramosiki Mehlolo (“the deceased”) was shot by two hooded men in an apparent ambush, only a few metres before reaching his home. According to the post-mortem report he died on 17 March 2004. The cause of death was recorded as “gunshot to the abdomen.”
 Consequent upon that incident the appellants were tried in the High Court on three counts, namely:-
Count 1: Robbery on the allegation that the appellants unlawfully shot the deceased and that by intentionally using force and violence to induce submission by him they stole from him the sum of M1,100.00.
Count 2: Murder on the allegation that upon or about the date in question and at the same place the appellants unlawfully and intentionally killed the deceased.
Count 3: Contravention of the provisions of section 3 (1) (2) (a) of the Arms And Ammunitions Act 1966 as read with the 1999 Amendment.
It was alleged that on the date in question the appellants were found in unlawful possession of a firearm without a firearm certificate.
 The appellants were acquitted on count 3. They were, however, found guilty as charged on both counts 1 and 2, being robbery and murder respectively. They were sentenced as follows:-
Count 1: 2 years imprisonment each.
Count 2: 18 years imprisonment each.
Both sentences were ordered to run concurrently.
 This appeal is directed against both convictions and sentences. As against the former, the appellants complain that the prosecution failed to prove its case beyond reasonable doubt. They contend that the prosecution relied solely on circumstantial evidence which, however, did not exclude every other reasonable inference pointing to their innocence. As regards sentence, they complain that it is “shockingly harsh”.
 It must be recorded at the outset that there was no direct evidence implicating the appellants in the matter. Indeed there were no eye witnesses to the deceased’s killing. As the appellants correctly point out in their grounds of appeal, the prosecution case was based purely on circumstantial evidence.
 In outline, the evidence for the prosecution amounted to this. On the night in question, at about 10 o’clock, Mopenyaki Maichu (PW1) was driving home after closing his shop. Just before reaching home, he found a “long pole” lying across the road. He managed to avoid it. He then saw two men wearing “hoods.” He did not identify them, except to say that one was taller than the other. After parking his car, PW1 heard a gunshot. Then he heard his neighbour, a woman by the name of Thato, scream for people to come and help. As a result, PW1 approached her. It was there that he found the deceased who had fallen outside the door. The deceased explained to PW1 that he had been shot by two people as he tried to remove a pole lying across the road.
 Against this background, the prosecution set out at the trial to try and prove that the two hooded men in question were the present appellants. The prosecution story in this regard commenced with the evidence of Tebello Mafau-Fau (PW2) who worked at a public phone stall on the campus of the National University of Lesotho. He testified that on the day following the deceased’s shooting the appellants requested him to phone Maseru as they were selling a firearm. It was a “small gun” and it was held by the second appellant. It was black in colour.
 According to PW2, the police arrested him on the same day at noon. They asked him who were the people who had come to him carrying a firearm. At the outset the appellants submit that this is a clear example that the police concocted a case against them. In view of what follows hereunder, I consider that this is not a far-fetched proposition. The police story put to PW2 is, at the very least, strange in view of the fact that it did not come from PW2 himself. On the contrary, the story came from the police themselves. They obviously fed the story to PW2.
 Be that as it may, PW2 was detained for two days. He implicated the appellants as the people who had come to him selling a black small gun.
 In cross-examination it emerged for the first time that the police had in fact assaulted PW2 upon their arrival saying he should tell them who had arrived at his place holding a firearm because “someone’s child” had died.
 On 23 March 2004, Detective Trooper Seeisa (PW7) examined the deceased’s body at the mortuary at Queen Elizabeth II Hospital. The deceased had sustained three wounds on the abdomen. Acting on certain “information” PW7 then arrested the first appellant on 24 March 2004.
 Under cross-examination of PW7 the following crucial evidence emerged for the first time:-
(1) That the scene of the crime had been interfered with. For example, the iron pole which had been lying across the road had been removed and placed inside the yard. A 9mm shell was allegedly found “at the scene.”
(2) That PW7 did not mark the shell he allegedly found at the scene.
(3) That PW7 handed the shell to “ballistic examination.” Once again the shell was not marked.
(4) That PW7 did not specify the person to whom he handed over the shell at the “ballistic examination.”
(5) That PW7 did not even identify the shell in court. It was simply not produced in evidence.
 Kelisitse Lofafa (PW8) testified that he worked at IEMS which is part of the National University of Lesotho. He worked with the first appellant. On 16 March 2004, the appellants brought him a gun for his use in self-defence. It was a 9 mm pistol. It had a “silver frame and black sides.”
Seemingly, it was not just “black” as PW2 had testified. The appellants wanted M800.00 for the gun but PW8 gave them M500.00.
 PW8 further testified that on 25 March 2004, PW7 and policeman Sekopo (PW9) arrived at his office. Strangely enough, so it seems, they fed PW8 the story that the person who had given him a firearm was inside the police van outside. This, despite the fact that PW8 had not initiated the story himself. As can be seen, this once again ties in with the defence proposition that the whole case against the appellants was concocted or “tailored.” This is more so since the first appellant was never confronted with PW8.
 It is common cause that PW9 retrieved the gun from PW8’s waist. It had seven bullets. Hence it is self-evident that it was PW8, and not the appellants, who was found in unlawful possession of the gun. Strangely enough, PW8 was neither charged with unlawful possession of the gun nor was he declared an accomplice witness.
 Detective Trooper Sekopo (PW9) testified that he was one of the investigators in the case. On 25 March 2004, he was in the company of the late policeman Makhele, PW7 and the first appellant. Although PW7 did not mention it, PW9 says that the first appellant took them to PW8. Typically, the police “demanded” from PW8 “the firearm that A1 had sold to him.” Once again it will be seen that the police themselves fed this story to PW8. It was not initiated by him, something that once again would seem to lend credence to the defence proposition that the whole case is nothing but a concoction.
 PW9 confirmed that he retrieved a 9mm pistol from the waist of PW8. Crucially, he could not recall the serial number of the firearm. He, too, testified that the colour was “black and silver.” He did not mark it. He handed it in as Exh “1”.
 PW9 further testified that he took the firearm Exh “1” to “a ballistic examination” together with one shell. The strange thing, as will be recalled, is that PW7 also claimed that he was the one who handed over the shell to the “ballistic examination.” Be that as it may, PW9 had no personal knowledge where the shell came from. He did not identify anyone at the “ballistic examination” to whom he handed over the firearm Exh”1” and the shell.
 Significantly, it turned out in cross-examination that in his statement PW9 did not mention that he handed over the firearm Exh “1” and shell for ballistic examination. The conclusion that he lied in this regard in his evidence in chief is, therefore, inescapable as the defence submitted.
 PW9, too, confirmed that the police did not lay any criminal charge against PW8 despite the fact that he was found in unlawful possession of the firearm. But his explanation for failing to charge PW8 is even more startling in my view. He said that it was because they “needed his (PW8’s) evidence to balance the evidence of the Crown.” As can be seen, that balancing act tends to support the defence version of “tailored” or “concocted” evidence against the appellants.
 The evidence of Senior Inspector Pali (PW11) is in my view crucial to the outcome of this case. His evidence showed that he is a firearms examiner. He said that on 29 March 2004, PW9 handed in a 9mm short model PA 63 pistol, serial Number BH0638 together with one (1) 9mm fired cartridge. It will be remembered, however, that PW9 did not say that he handed over the firearm to PW11. Be that as it may, PW11 identified it as the firearm, Exh “1”. It will immediately be apparent, however, that PW11 was the only person who identified Exh “1” by its serial number, something commendable on its own. But that in my view falls short of explaining the origin of Exh “1” or its link with the appellants.
 In his evidence in chief PW11 testified that the fired cartridge had been fired from Exh “1”.
 Crucially, PW11 frankly admitted under cross-examination that “in normal cases the evidence collected from the scene should be sealed and labelled from the scene.” The witness is obviously correct.
 PW11 conceded that the submission form concerning Exh “1” and the fired cartridge was not signed by PW7, contrary to accepted procedure. Furthermore, he agreed that PW7’s omission in this regard flouted the “injunction orders of the court” that whenever exhibits are collected they must be marked immediately by the person who collected them.
 More importantly, PW11 conceded that the fired cartridge was not marked, adding significantly, “it was inside an envelope, nothing mentioned of anybody, not Seeisa (PW7), not anybody just the cartridge case inside.”
 Furthermore, PW11 correctly conceded that there was “no evidence of transfer of the cartridge from the person who collected it to PW9 who in turn allegedly handed it to PW11 himself.
 PW11 further testified that it was necessary for him to have photographs of the suspect cartridge and test cartridges for comparison before making microscopic findings. Curiously, he testified that he was only shown Exh “1”. The fired cartridge case was simply not there. As a result he did not produce the photographs in order to demonstrate the comparisons he had made.
 Similarly, PW11 conceded that it was necessary for him to demonstrate to the court the marks caused by the firing of Exh “1”. However, he was unable to conduct this demonstration simply because the suspect cartridge case was missing.
 Finally, PW11 candidly conceded that in these circumstances he could not be sure that the fired cartridge was in fact the one which had allegedly been collected from the scene of the crime. Indeed PW11 could not dispute the reasonable possibility, as suggested by the defence, that the police might have fired the cartridge from Exh “1” themselves.
 Now, as this Court acknowledged in Thabiso Mothobi And Others v Rex C of A (CRI) N0.5 of 2007 per my Brother Scott, a court should not blindly accept and act upon the evidence of an expert witness. It must decide for itself whether it can safely accept the expert’s opinion. On this principle, therefore, it follows that the court cannot rely on the evidence of PW11 in these circumstances.
 I have set out the prosecution evidence at length and in some detail in order to demonstrate the fatal flaws inherent in it. Quite clearly, the chain of proof was broken. There are gaps or missing links in the chain of proof required to link the appellants with the murder weapon. See for example, Mohajane And Another v Rex 1985 – 1989 LAC 14 at 18. Moreover, I consider it to be of fundamental importance in a case such as this that the suspect shell should be kept in safe custody so that no one can fiddle with it. The police ignored the basic crucial procedure to mark and identify the exhibits from the scene of the crime right up until their presentation in court. As Mr. Ntlhoki for the appellants submitted for example and, correctly so in my view, there is a reasonable possibility that the alleged fired cartridge could have come from anywhere. The fact that the scene of the crime had been tampered with adds to the uncertainty. Furthermore, the fact that the police fed their story to the witnesses as indicated earlier and that they even assaulted PW2 in the process lends credence to the defence submission that the case against them was cooked.
 This being a case resting wholly on circumstantial evidence, it is necessary to recall the celebrated remarks of Watermeyer JA made some 61 years ago in R v Blom 1939 AD 188 at 202 – 203 on inferential reasoning, namely that:-
“ (1) The inference sought to be drawn must be
consistent with all the proved facts. If it is not,
the inference cannot be drawn.
(2) The proved fats should be such that they
exclude every reasonable inference from them
save the one to be drawn. If they do not
exclude other reasonable inferences, then
there must be a doubt whether the inference
sought to be drawn is correct.”
That the facts as fully outlined above fall under the second principle laid down by Watermeyer JA admits of no doubt.
 Having regard to these factors cumulatively, it follows that the prosecution failed to prove its case beyond reasonable doubt.
 Accordingly, the appeal is upheld. Both convictions and sentences recorded by the trial court are set aside.
PRESIDENT OF THE COURT OF
APPEAL OF LESOTHO
I agree: _________________________ D.G. SCOTT
JUSTICE OF APPEAL
I agree: _________________________
JUSTICE OF APPEAL
For the Appellants: Mr. M. Ntlhoki
For the Respondent: Adv. H. Motinyane