C. OF A (CRI)5 OF 2000
To be read by Ramodibedi JA
SUMMARY DIRECTOR OF PUBLIC PROSECUTIONS v MOSUOE MOTEANE
These are the reasons for the dismissal of this appeal.
The accused shot and killed one person and shot and wounded another. He was charged with murder and attempted murder. He raised the defence of sane automatism. He was found not guilty and discharged. The Director of Public Prosecutions appealed to this Court against the accused's acquittal.
In the judgment prepared by my brother Friedman with which my brother Gauntlett and I concur, the requisites for a defence of this kind are dealt with. On the evidence we came to the conclusion that the prosecution had not succeeded in discharging the onus resting on it to prove that at the time of the commission of these offences the accused was criminally responsible for his actions.
Accordingly the appeal was dismissed.
C. of A. (CRI) NO.5 OF 2000
IN THE COURT OF APPEAL OF LESOTHO
In the matter between:
DIRECTOR OF PUBLIC PROSECUTIONS APPELLANT
MOSUOE MOTEANE RESPONDENT
Held at Maseru
Coram: FRIEDMAN, J.A.
Mosuoe Moteane (hereafter referred to as the accused) was charged in the High Court before Lehohla J. and assessors with one count of murder and one count of attempted murder. The first count related to the shooting and killing of 'Muso Moshoeshoe (the deceased) and the second to the shooting and wounding
of Toka Lerotholi (PW1). Both offences were alleged to have been committed on 26 December 1995 . The accused pleaded not guilty to both charges. He was found not guilty and discharged. The Director of Public Prosecutions appealed against the accused's acquittal. Having heard Mr. Griffiths, who appeared for the Crown, we dismissed the appeal and indicated reasons would be furnished later. These are the reasons.
The accused did not dispute that he had shot and killed the deceased and that he had shot and wounded PW1. He raised the defence that at the time of the shooting there was a disintegration of his personality of a temporary nature as a result of which he acted involuntarily, being unable to distinguish between right and wrong.
The facts which gave rise to the shootings are largely common cause. They may be summarised as follows. The accused is employed by the Ministry of Education as Director of the Thaba Tseka Technical Institute. He also owns a bakery business. He obtained the B Ed degree at the University College in Cardiff Wales in 1983 and the MSc. Degree at the Tuskegee University in Alabama, USA in 1989. He is married and has four children, two daughters and two sons. His elder daughter, Sekamotho, was born on 9 July 1979. In December 1995 she was
16 years of age.
For some time prior to the shooting, the accused had heard rumours and had reason to believe that the deceased, who was a married man in his thirties, was having an affair with Sekamotho.
Some time during the first half of 1995 the accused was told by a neighbour that while he was away from home - his duties necessitated his travelling a great deal - Sekamotho was on a few occasions seen with the deceased in his motor car which was parked in front of the accused's house. This the accused found very disturbing. Sekamotho was at a boarding school. The accused arranged with his brother that, as the accused lived far from his school, Sekamotho could spend her home week-ends with the accused's brother at Maseru West. One afternoon the accused happened to be in Maseru and decided to visit his brother and Sekamotho.
As he drove into the road in which his brother lived he saw a vehicle parked in front of the gate. As he approached, he saw Sekamotho talking to the driver. As he pulled closer the vehicle shot off at high speed. The accused asked Sekamotho who the driver was. She replied that it was a stranger who was seeking directions. She appeared to be very nervous. The accused followed the vehicle
and found it two blocks away. He recognised the driver; it was the deceased. The accused parked his vehicle next to that of the deceased. He spoke to the deceased and appealed to him to stop having an affair with his daughter who was under age and did not yet have a career. The deceased said he was sorry.
The accused then returned to his brother's house where he told Sekamotho that he had found the person who she said had been seeking directions and that it was the deceased. Sekamotho admitted that she was having a love affair with the deceased and that he had threatened to shoot her if she terminated the relationship.
The accused was very upset and decided to speak to the deceased's employers. The deceased was a member of the Royal Lesotho Mounted Police and was stationed at the Thaba-Tseka Police Post. The accused accordingly approached the head of the Thaba-Tseka Police Post who was sympathetic and advised the accused to report back to him should he see signs of the affair continuing.
A further incident occurred which caused the accused concern. The accused's nephew (his younger brother's son) who was 17 years of age and who was apparently friendly with the deceased assisted the latter to communicate with
Sekamotho by telephone. When this was reported to the accused by the boy's mother, the accused confronted Sekamotho about the telephone call. She made the excuse that the conversation related to an enquiry about some girls in town. The accused was disturbed as he suspected that the affair between the deceased and his daughter was continuing.
During the winter vacation Sekamotho worked part time in the accused's bakery. One day he discovered that she had allegedly gone to deliver a loaf of bread at the house of a friend of her's which was a venue where Sekamotho was meeting the deceased. The accused spoke to Sekamotho's friend's parents who undertook to ask their daughter to desist from facilitating meetings between the deceased and Sekamotho.
The affair was taking its toll on Sekamotho whose June 1995 school report was very poor compared with her earlier reports.
At about midnight on 25 December 1995 accused's younger daughter woke him and reported to him that Sekamotho and the domestic help who shared a room with her were missing. He found the front door unlocked and saw that they had left. He locked the door. At about 3 a.m. on 26 December 1995 he heard someone
trying the front door. He went to check who it was and saw Sekamotho and the domestic help running away. The accused went into Sekamotho's bedroom where he found an album containing photographs of the deceased.
The accused asked his elder son to assist him to find Sekamotho. His son told him that he had heard from a neighbour that Sekamotho had been seen with the deceased at a party and also at a bar. The accused was very upset at hearing this. He took the album and, deciding to call on the deputy commander of the police who was well known to him, he set out in his motor car. In the road he encountered a police vehicle approaching. It was being driven by the deceased. PW1 was a passenger in the vehicle. He stopped and flagged the police vehicle to stop. He approached the police vehicle with the album in his hand and asked the deceased how the album came to be in his (accused's) house. The deceased just looked at him and giggled.
In his evidence in chief (PW4) the accused testified that he became infuriated with the deceased. He asked the deceased: "where is my child". Again the deceased just giggled. The accused testified that at that stage he had a complete black out and does not remember what happened. He stated that he hazily remembers cocking his gun and hazily recalls the passenger in the police
vehicle opening the door and getting out. He also hazily recalls firing the first shot but nothing thereafter. The next thing he recalls is that he asked PW1 who "had stepped next to the vehicle", to accompany him to the charge office "because now when everything dawned I assumed that shot must have caused the accident." PW1 did not respond. The accused went back to his vehicle and drove to the charge office. Finally, in his evidence in chief, the accused testified that he recalls that after the deceased had giggled, the deceased dropped his left hand from the steering wheel. The accused construed this as an aggressive act. At that stage he cocked his gun.
According to the post mortem report the deceased died of a gunshot wound to the chest. Four gunshot entry wounds were found on the body. PW1 received one gunshot wound in his buttock.
There were only two issues on which the accused's evidence was in conflict with that led by the Crown. The first was in relation to a remark which the accused is alleged to have made after the shooting. PW1 testified that after the accused had shot the deceased, the accused said: "Father Moteane, you have killed me for something which you don't know." The accused replied "I told you I will kill you". The accused stated he had no recollection of having uttered those words
and accordingly denied that he had done so.
The second was in regard to where PW1 was standing when the accused asked him to accompany him to the charge office. The accused testified that PW1 was standing next to the rear of the police vehicle whereas PW1 testified that he had moved a distance of approximately 50 metres from the vehicle and that he was not near the vehicle when he was asked by the accused to accompany him. On both these issues the trial court accepted PWl's evidence and rejected that of the accused.
The defence called a psychologist, Mrs Ester Maria Redelinghuys (DW2). She consulted with the accused and conducted the necessary psychological tests "in order to establish his psychological profile at the time of the shooting". Mrs Redelinghuys expressed the view that at the time of the shooting the accused was suffering from a disintegration of the personality which, in psychological terms, is known as decompensation and which is the same as automatism. According to Mrs Redelinghuys, the accused was, in that state, incapable of distinguishing right and wrong.
She based this conclusion on the continuous and excessive stress
experienced by the accused, commencing with the extramarital affair which his wife had some years back and which affected him emotionally and started the stressful situation in the family environment. This was followed by the continuous problems encountered in the ongoing affair between Sekamotho and the deceased. The deceased's giggling in response to the accused's questions concerning the album and the whereabouts of his daughter, led to the accused's uncontrolled violent behaviour.
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 recognised 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 characteristic 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 1991 (1) SACR 13 (A) at 19 h-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 334 b-c.
In the present case the accused's legal representative informed the court at the stage when the accused pleaded to the charges, what the defence would be.
When the defence case was closed, the Crown requested and was given an adjournment in order to consult with or call an expert witness to rebut the expert testimony of Mrs Redelinghuys. However, at the resumed hearing Crown counsel informed the court that the Crown did not intend to lead any such evidence.
The trial court, in a careful analysis of the evidence, accepted the accused's evidence of the "black out". The trial court also accepted Mrs Redelinghuys' evidence that the accused was, at the time of the shooting, because of the disintegration of his personality, unable to distinguish right from wrong and that the could not have formed the necessary intent as a consequence of a temporary mental breakdown.
The original notice of appeal by the Crown was directed at what were described as misdirections by the trial court in regard to its acceptance of the accused's version. At the hearing of the appeal Mr. Griffiths applied for an amendment to the grounds of appeal by the addition of a ground to the effect that if the accused acted under a form of sane automatism, this should have been regarded as a form of temporary insanity and the accused should have been dealt with accordingly.
In his heads of argument in support of this ground of appeal Mr Griffiths sought to rely on an unreported judgment of Maqutu J. in The Crown v Chobokoane 16 August 2000 CRI/T/90/99. In the course of his judgment in that case Maqutu J, after referring to both South African and English cases dealing with the defence of automatism, stated at page 27 of the typed judgment: "It should now be clear that personality decompensation falls under insanity according to the current legal set-up in Lesotho."
This statement is open to criticism on two grounds. Firstly it is not supported by the English cases on which the learned judge purported to base it. In Bratty v. Attorney General for Northern Ireland  AC 286 (PC) 407, the Privy Council accepted that if there was a doubt whether or not the accused acted in a state of automatism, he had to be acquitted. Similarly in Rv Sullivan [ 1983] 2 All ER 673 (HL) the House of Lords recognised the possibility of a defence of non-insane automatism "for which the proper verdict would be a verdict of "not guilty".
Secondly, whatever view was expressed by the learned judge concerning the correct verdict when a defence of automatism was raised, was clearly obiter. The accused's evidence that he had acted in a state of automatism was rejected on the facts.
Although the English courts tended to look more strictly at the defence of sane automatism than the South African courts, in both systems it is essentially a question of fact as to whether the accused was acting in a state of sane automatism.
In S v Henry supra Scott JA, writing for the Supreme Court of Appeal in South Africa, pointed out that where the commission of a criminal act is put in issue on the ground that the absence of voluntariness 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 prosecution to establish this element beyond reasonable doubt. The learned judge went on to point out that a defence such as non-pathological automatism requires to be carefully scrutinised and that -
"His (the accused's) ipse dixit to the effect that his act was involuntarily and unconsciously committed must.... be weighed up and considered in the light of all the circumstances and particularly against the alleged criminal conduct viewed objectively."
There is no substantial difference between this approach and that of the English courts and I hold that this is the correct test to apply in Lesotho. Mr. Griffiths very fairly conceded that this was so.
Dealing with the evidence, Mr. Griffiths argued, however, that there were aspects of the accused's evidence which tended to show that he was aware of that he was doing. In this regard he relied strongly on the finding of the trial court that immediately after the shooting the accused said to the deceased: "I told you I would kill you." He submitted that this finding detracted from the evidence of Mrs Redelinghuys, whose findings were based on the version furnished by the accused. The difficulty with this criticism of her evidence is that although the Crown's representative at the trial cross- examined Mrs Redelinghuys extensively, no cross -examination was directed at this aspect of the accused's evidence, nor, for that matter, at the second aspect of his evidence which was rejected.
Mr. Griffiths submitted, further, that the accused's evidence of the manner in which he cocked his gun and fired the first shot, was indicative of the actions of a person who was in control of his actions and who was aware of what he was doing.
he trial court considered all these facts, including the aspects on which the accused's evidence was not accepted, and came to the conclusion that the defence case on its own and even without the weaknesses and inadequacies in the Crown's case, was sufficient to sustain the accused's defence. That means that the Crown
failed to discharge the onus resting on it to prove that the accused did not commit
the offence charged while in a state of sane automatism. He was accordingly correctly acquitted.
For these reasons the appeal was dismissed.
JUDGE OF APPEAL
JUDGE OF APPEAL
JUDGE OF APPEAL
Delivered at Maseru on this......'day of October, 2000