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Thinyane v R (C of A (CRI)/5/09, CRI/T/150/04)
IN THE COURT OF APPEAL OF LESOTHO
C of A (CRI)/5/09
In the matter between:
KHOAELE THINYANE ….........................................................Appellant
CORAM: RAMODIBEDI, P
HEARD: 5 OCTOBER 2010
DELIVERED: 22 OCTOBER 2010
Criminal Law – Murder – Accused a policeman – justifiable homicide in terms of s 42 (1) of the Criminal Procedure and Evidence Act – onus on accused not discharged – intention to kill not proved – culpable homicide the correct verdict – custodial sentence appropriate.
 The appellant is a trooper in the Lesotho Mounted Police Service (LMPS). In the course of a stock theft investigation he fired a rifle at Tsilo Makoetje, a man of 23 and killed him. As a result the appellant was tried before the High Court (Nomngcongo J and assessors) on a charge of murder. He was convicted as charged and sentenced to 15 years imprisonment. He has appealed against the conviction and the sentence.
 The contention advanced in the appellant’s defence both at trial and on appeal is that the killing constituted justifiable homicide in terms of s 42 (1) of the Criminal Procedure and Evidence Act 1981. The subsection provides (omitting presently irrelevant wording):
“When any peace office authorised or required under this Act to arrest or assist in arresting any person who has committed or is on reasonable grounds suspected of having committed any of the offences mentioned in Part II of the First Schedule, attempts to make the arrest, and the person whose arrest is so attempted flees or resists and cannot be apprehended and prevented from escaping, by other means than by the peace officer killing the person so fleeing or resisting such killing shall be deemed justifiable homicide.”
 The material Crown evidence comprised a written statement by one Thabiso Motale (who was not called to testify) and the testimony of Matlotlo Ntabe (who had been arrested in respect of the stock theft in question) and Detective Inspector Tsiane of the LMPS.
 Central to the inquiry prompted by the defence are two questions – whether the deceased, when shot, was fleeing and, if he was, whether the shooting occurred in an attempt to arrest him. If the appellant’s conduct did not enjoy the protection of s 42 (1) the correctness of the trial court’s verdict is in issue. Finally, if the verdict should have been one of guilty of culpable homicide, the question of an appropriate sentence arises.
 The trial court found that the deceased was not fleeing and that the appellant was not attempting to arrest him. Therefore the subsection did not apply. The court then inferred that the appellant did foresee the possibility that the shooting might be fatal and that murder had accordingly been proved.
 A post-mortem examination was conducted on the deceased’s body and a report form relevant to the examination was completed by the doctor who conducted it. The doctor was not called. The Crown confined the medical evidence to a copy of the report, which was handed in by consent. (The appellant was represented at the trial by counsel who also appeared on appeal.) To compound the difficulty occasioned by the absence of oral expert evidence, the copy of the report contained in the appeal record is barely legible. This state of affairs is not acceptable. In the nature of the case the direction and trajectory of the fatal bullet could have been of major if not crucial importance. If the doctor who conducted the examination was unavailable it was nevertheless possible for another doctor, accepting the written findings as correct, to comment and offer expert opinion to assist the court. Furthermore, in no case, much less a serious criminal matter, should a trial court or this Court be left to conjecture and speculation as to the content of important evidence.
 What can, with just sufficient clarity, be discerned from the medical report is that the deceased was struck by a bullet that caused an entry and an exit wound of the chest. The entry wound was “near to [the] spine posteriorly.” The damage caused by this bullet caused the deceased’s death.
 According to the Crown evidence Ntabe was in police custody on a charge of having stolen sheep belonging to a prison officer at Thaba-Tseka. The police later received information that the sheep were in the possession of the deceased in the vicinity of the Ha Sebili cattle post in the Thaba-Tseka area. In the light of this information the appellant summoned Ntabe from the police cells, told him of this information and required him to be ready the following morning (12 April 2000) to accompany the police to follow up this lead. The next day the party set off for Ha Sebili. It comprised Ntabe, the appellant and Tsiane. The appellant was armed with a rifle, Tsiane with a pistol.
 Ntabe’s account of the shooting was that when they arrived at the cattle post they saw the deceased taking the sheep to graze. The appellant asked Ntabe whether this was Tsilo and Ntabe said it was. Tsiane and Ntabe had just stopped the sheep from proceeding when Ntabe heard the appellant call to the deceased “Hey man come here” and then the sound of gunfire. His evidence is contradictory as to whether he looked in the appellant’s direction before or after he heard the shots but he claimed to have seen that the deceased “jumped quite high” before falling down dead. He indicated that the distance between the appellant and the deceased before the shooting was relatively short. He said he heard two shots and it is common cause that the appellant did fire twice. According to him, the deceased did not refuse to obey the appellant’s call.
 In cross-examination counsel put it to Ntabe that it was Tsiane who called to the deceased. He denied this. Then it was put that when the deceased recognized Ntabe and saw that he was accompanied by the police, the deceased ran away whereupon Tsiane ordered the appellant to get the deceased to stop by shooting. These assertions were also denied. Ntabe went on to deny that the deceased was shot from behind. He bolstered this denial by saying that he saw the wound on the deceased’s right side. Confronted with the allegations in Thabiso Motale’s written statement that the deceased ran away, Ntabe denied that it was true.
 Detective Inspector Tsiane has been a member of the LMPS for over 24 years and at the relevant time was attached to the stock theft unit at Thaba-Tseka. He gave the following account of the events in issue. Upon arrival at the cattle post he saw the deceased driving the sheep and called him “that he comes over and we discuss”. At this moment he heard two gunshots. He looked behind and saw appellant with the rifle in his hands. He then looked towards the deceased and saw that he had fallen. The deceased was about 50 paces away from them. Tsiane said there was no time between his calling the deceased and the shooting for the deceased to respond to Tsiane’s call. When he reached the deceased he was on the point of death.
 Tsiane said that due to the deceased’s death Ntabe had to be released because there was no longer anyone to “inquire from”. A feasible inference (the witness was not asked to expand on this) is that the police were looking to the deceased for possible incrimination of Ntabe and vice versa. At all events Tsiane gave no evidence that he or the appellant, before the shooting, took any steps to arrest the deceased or to inform him that he was under arrest or about to be arrested.
 Under cross examination it was put to Tsiane that after he called the deceased, the latter fled and that Tsiane then asked the appellant whether he was letting the deceased get away. The appellant, so it was put, understood this as an order that he should do something, in counsel’s words, “to get the deceased”. Tsiane said he disagreed with this. The next ensuing question and answer read as follows:
“DC: That he [the appellant] further said he tried to aim at the legs of the deceased but out of poor (marksmanship) he was unlucky that now he shot the deceased at somewhere in the body otherwise he was negligent, what do you say Inspector?
P.W.2: Yes, I agree that is negligence, My Lord.”
 With the oral evidence of Ntabe and Tsiane must be contrasted the written statement of Thabiso Motale. He said that he was sitting at the cattle post and saw the police party arrive. His statement proceeds –
“As they came into Tsilo’s fair view, I observed him fleeing, I did not hear if they said anything, when he fled, I (heard) a gun report twice, then I saw him sit down, it is then those three proceeded to him. And then they went round him, it is then that we drove our animals to the veld, and we disappeared.”
 It is not apparent why Crown counsel included that statement as part of the prosecution case. If Motale was available to testify, his statement could have been given to defence counsel and the latter could have been left to call him. I assume he was not available and that Crown counsel may have been motivated by the incentive impartially to place all available information before the trial court. Be that as it may, Motale’s statement, in providing support for the defence allegation that the deceased was running away, also offers an explanation for the shooting, unlike the evidence of Ntabe and Tsiane from whose evidence one can only infer that the shooting was an intentional but purposeless execution, which, of course, is inherently improbable.
 The appellant was called to testify. He said the purpose of the operation was to find the sheep which Ntabe was suspected of having stolen and which he had told the police were in the deceased’s possession. They reached the cattle post and saw the sheep and the deceased. The deceased then caught sight of them. The appellant’s evidence continues as follows:
“Accused: Then when he noticed that we were policemen he instantly fled. Sgt. Tsiane called to him and said he should not run away. He nevertheless fled. He said to me ‘What are you doing letting the man flee?’
DC: What did you understand by his statement?
Accused: I understood that I should not shoot him but find means of apprehending him. I tried to shoot at his legs but because of human weakness I shot him on the body on the right side.
DC: Were there other options of stopping him?
Accused: Besides shooting him there were no other options.”
 In cross-examination the appellant said that the deceased was a suspect. However he did not claim that the purpose of the mission was to arrest the deceased. Instead, so he said, it was for Ntabe to point out the stock. Conceivably, as I see it, had Ntabe conveyed that the deceased was unlawfully involved with the sheep, an attempt to arrest the deceased may have followed but events did not develop in that way. Moreover, at no stage of his evidence did the appellant suggest that his conduct was aimed at arresting or attempting to arrest the deceased. He also added embellishments such as that he attempted to run after the deceased but that the latter outran him; and that Tsiane actually told him he should shoot. Those were features of his evidence that had not been his case as put to the Crown witnesses or part of his evidence-in-chief.
 Although the last-mentioned consideration no doubt provided a valid basis for the trial court to have placed a question mark against the appellant’s credibility, analysis of all the evidence makes two matters perfectly plain.
 The first is that at no time relevant to the shooting was it the appellant’s objective, declared or otherwise, to arrest or to attempt the arrest of the deceased. The latter can therefore not be found to have known that it was sought to arrest him and thus to have been evading arrest. The trial court was therefore correct in concluding that the s 42 (1) defence could not succeed. (cf. Khohlane Boi and Others v Rex C of A (CRI) No.8/09, unreported, delivered on 23 April 2010, at p17.)
 The second matter is that Ntabe and Tsiane’s version of the shooting, according to which the deceased was not fleeing when he was shot, was, as I have said, improbable. In addition, that version is contradicted on the Crown’s own case. The trial court had to explain away such improbability and contradiction satisfactorily before it was justified in rejecting the defence case in that regard. This it failed, in my view, to do. If it were true that Tsiane instigated the shooting, he would have been most concerned to distance himself from the consequence and therefore would have had a motive to misrepresent the facts. As for Ntabe, he had the motive to ameliorate his own position in any event and supporting Tsiane’s version offered an opportunity to achieve that. Bearing all those factors in mind it is not possible to reject the allegation that the deceased was running away from the police when he was killed. The case should therefore have been decided on that basis.
 The question, then, is whether the Crown proved beyond reasonable doubt that the appellant intended to kill. The trial court did not find direct intent but inferred that the appellant acted with the foresight of possible death. That is clearly an inviting inference but the issue is whether it is the only reasonable one. One shot missed and could reasonably possibly have been the first. If that was a warning shot – and that cannot be ruled out – the focus moves to the fatal shot. Neither the Crown evidence nor cross-examination of the appellant established a reliable estimate of the distance over which that shot was fired. Nor whether the deceased was then running uphill, downhill or on the level. If he was moving over broken ground his legs would have provided an ever-changing target. Although it could be said that the more difficult the aim, the greater the chance of an unintended fatal shot, the appellant was not cross-examined as to his assessment at the time of the chances of possible death. It must be remembered that his case is that he fired under pressure of Tsiane’s prompting him to act with urgency. That would tend to push thoughts of possible consequences into the background. I therefore conclude that the Crown failed to prove murder and his conviction and sentence for that crime cannot stand.
 The appellant was clearly guilty of culpable homicide, however, and the trial court’s finding must be substituted accordingly.
 As to the matter of an appropriate sentence, there was unanimity at the Bar that the sentence should entail unsuspended imprisonment. Counsel for the appellant submitted that five years would suit the case but Crown counsel contended for ten years.
 In support of the latter contention we were referred to the unreported judgment of this Court of Director of Public Prosecutions v Lazaro Ntsoele (C of A (CRI) 16 of 2005, delivered in April 2006. The appellant in that case was sentenced on trial to five years imprisonment for culpable homicide. On appeal the Crown sought an increase in sentence. This Court, having observed that the appellant was fortunate to have had his plea of guilty to culpable homicide accepted, went on to stress that the shooting in that matter (of a policeman, not by a policeman) involved a cold-blooded and unprovoked attack on a police officer who was doing his duty. The sentence was altered to ten years imprisonment. Plainly, that case does not support Crown counsel’s submission – the facts were substantially different.
 In the determination of an appropriate sentence it is relevant to take into account that the appellant was endeavouring to do his duty and that he acted pursuant to the urging of a senior policeman. On the other hand he knew that by no stretch had his actions before shooting even approximated to effecting an arrest. What he was endeavouring to achieve, at best for him, was to prevent the deceased, a suspect in the case, from evading police contact and to secure his presence so that he could be questioned. However, shooting at a person in that situation was not only unlawful but extremely dangerous. It would have necessitated serious censure even had the shot wounded the deceased non-fatally. The appellant had been a member of the LMPS for 11 years and was not lacking in service experience.
 Furthermore there is nothing in the evidence to suggest that it would have been difficult, much less impossible, to have traced the deceased had he got away that day. It must be emphasized that although the police are empowered to use firearms that power has to be exercised strictly within the boundaries set by the law.
 In my view, having regard to all the aims of sentence imposition, the matter warrants a custodial sentence greater than five years but not as much as ten. In addition it appears to me to be appropriate to add suspended imprisonment as a deterrent sword over the appellant’s head.
 The order of this Court is accordingly as follows:
1. The appeal against the conviction of murder and the consequent sentence of 15 years imprisonment succeeds and the order of the trial court is set aside.
2. Substituted for the trial court’s order is the following –
“The accused is convicted of culpable homicide for which he is sentenced to ten (10) years imprisonment of which four (4) years imprisonment is suspended for three (3) years on condition that he is not convicted of any offence of violence involving the discharge of a firearm at another person committed within the period of suspension and for which any term of unsuspended imprisonment is imposed.”
3. The Registrar is directed to draw the attention of the Director of Public Prosecutions specifically to paragraph  of the judgment.
JUSTICE OF APPEAL
PRESIDENT OF THE COURT OF APPEAL
JUSTICE OF APPEAL
For Appellant : Adv. P. Pitso
For Respondent : Adv. K. Khoboko