Case No:
CRI/S/14/2006
Media Neutral Citation:
[2008] LSHC 24
Judgment Date:
11 April, 2008
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CRI/S/14/2006
In the matter between:-
REX
AND
LEFU NCHAKHA
JUDGMENT
Delivered by the Honourable Justice M. Mahase
On the 11th April 2008
The accused appeared before the Thaba Tseka Magistrate’s Court on the 31st August 2006. He was charged with the offence of having contravened the Provisions of Section 3(2) of the Sexual Offences Act No.3 of 2003 in count I. He has been convicted on count I.
He was then charged in count II with having committed the crime of house breaking with intent to steal and theft. He has been acquitted in count II.
The complainant in count I is said to be one Manyeoe Taemane (age not given); while in count II the complainant is one `Marenang Tloutle; from whose house the accused allegedly stole three blankets, radio, 21 casettes and a bag; the properly of or in the lawful possession of the said `Marenang Tloutle.
The accused pleaded guilty to count I but not guilty to count II. He was however, at the end of the day found guilty as charged in count I only. The learned magistrate for Thaba Tseka then had the case sent to the High Court for sentencing because he was of the view that a harsher or more severe sentence than he otherwise had jurisdiction to impose was called for.
The particulars with regard to the crime allegedly committed by the accused in count I are that he wrongfully and unlawfully committed an unlawful sexual act with one `Manyeoe Taemane by having sexual intercourse with her without her consent.
The savingram of the late learned magistrate Mr. Mafatlane before whom the accused was tried, convicted and sentenced, dated the 1st September 2006, states that the reason for his having committed the accused before this court for sentencing is because the appropriate sentence to be imposed upon the accused and in accordance with the Provisions of Section 32(a)(vii) is beyond his jurisdiction.
He has further stated that he has relied on the Provisions of Section 31(2) of the Act under which the accused is charged in his committal of the accused to this court.
It is apposite to note that the learned magistrate convicted the accused herein on the 31/08/06 and had the savingram referred to above written on the 1st September 2006. However, and this is the disturbing feature herein, it was only on the 18th February 2008 that this matter was placed on the roll of this court for determination; even though it had been received or filed in the High Court criminal registry on the 15 or 21 September 2006. (There are two date stamps on it). There is nothing ex facie the papers herein why there was a delay of almost one year five months before the case was enrolled for sentencing.
Even then, the matter could not be argued on the 18th February 2008 for the reason that the crown counsel Mr. Letsie who had appeared on behalf of the crown had informed this court that the file herein had been handed or allocated to him only that morning of the 18th February 2008 for him to come and argue same. He was therefore not ready to proceed with the case. Be that as it may, the matter was postponed for argument on the 28th February 2008 before this court.
On that day Mr. Habasisa who appeared herein on behalf of the accused raised certain points in limine from the bar; to wit and very briefly:-
That the proceedings in the court a quo were not in accordance with real and substantial justice because
the accused had not been adequately informed of his rights to legal representation.
That there was no inquiry by the court a quo as to why the accused elected to defend himself.
It was submitted on behalf of the accused that the learned magistrate in the court a quo ought to have not only informed the accused of his rights to legal representation, but he ought to have also encouraged the accused to seek legal representation and have him informed of the Legal Aid services because the accused is facing a very serious charge and that if convicted, he was likely to face a death sentence.
The court was referred to a number of authorities in support of the above submissions, and in applying for the setting aside of the conviction herein. Those were, (to mention but a few):-
PULUMO V REX CRI/APN/27/88 (unreported)
S. V. MBONANI 1988(1) S.A. page 191 at 196 D
LEPHOSO KOBILE V D.P.P. CRI/APN/172/2006 (unreported)
Mr. Habasisa has also challenged the fact that the medical report, exhibit “B” in relation to the HIV/AIDS status of the accused herein was accepted by the court a quo to form part of the evidence in this case.
It is his submission that this report should never have been accepted as part of evidence herein because, firstly; the accused unrepresented as he was, was never asked whether or not he objected to it being handed over to court as an exhibit. In other words he was not given a chance to say anything about it.
Further, still so he argued the court a quo has not attached any previous medical reports relating to the status of the accused in this regard. It is his argument on behalf of the accused that since the medical doctor who compiled this report was never called to testify about it, the accused was denied an opportunity to cross examine him on it, more so since the said report is ambigious as it states on the last portion that “the patient is a known case of HIV followed in our hospital we have repeated HIV test which is positive ……”
It is noted, however, that Mr. Habasisa does not deny that this report relates to the accused herein. He argues that the said exhibit “B” is prejudicial to the accused because it subjects him to be dealt with under the Provisions of Section 32(a)(ii) of the Sexual Offences Act which prescribes a death sentence should the court find that the accused had knowledge or reasonable suspicion that he was infected with the human immunodeficiency virus at the time of the commission of this offence.
He argued further on this issue that the charge sheet is flawed and prejudicial to the accused because it has failed to indicate that the accused is charged with having contravened the Provisions of Section 3(2) of the Sexual Offences Act No.3 of 2003 read together with the Provisions of Section 32(vii) of that Act, (the penalty section) thereby failing to inform the accused of the likely consequences/sentence that would be imposed upon him should he be convicted on the charge he was facing. It was argued therefore, that the proceedings against the accused in the court a quo were not fair to the accused.
The crown, in response to the above submissions argued, and correctly in the view of this court that the defence has in fact, by raising the said points in limine, put the cart before the horse and that those points in limine were raised prematurely.
It (crown) argued that the proceedings herein relate only to the sentencing of the accused in terms of the Provisions of Section 31(2) of the Sexual Offences Act (supra) – This section provides as follows:-
Where the appropriate penalty is beyond the ceiling of penal powers of the trial court, it shall, after conviction, send the case to the High Court for sentence.
He submitted therefore that the only and important question to be determined here is whether or not this court has jurisdiction to entertain this case relating to the sentencing of the accused and under the circumstances of this case.
It is the submission of the crown that having convicted the accused as herein charged before the court a quo, the learned magistrate has correctly referred or committed the accused for sentencing before this court regard being had to the Provisions of Section 31(2) as well as to the contents of exhibit “B” – that the accused was found to have been infected with the human immunodeficiency virus and that in fact, the accused had knowledge or reasonable suspicion of the infection at the time when he committed this offence.
The crown’s argument is indeed that in a situation such as the present one, all that is required is that the Judge before whom the matter for sentencing comes in the normal course should have regard to the record and conviction and thereafter deal with it in the same manner as any other matter where he/she is required to pass sentence.
The presiding judge would not be called upon to determine the correctness of the conviction. Vide THULOANE MOHOASE V. REX C OF A (CRI) No.7 OF 2004.
In the words of Plewman, J.A. in the case of REX V. JANKI PASEKA C OF A (CRI) No.11 OF 2005:
There is no room for any further enquiry and the High Court must then impose an appropriate sentence.
The Provisions of Section 32 are mandatory and they provide as follows:
A person who is convicted of an offence of a sexual nature shall, subject to the Provisions of Section 31, be liable –
a) in a case of first conviction ………..
viii) Where a person is infected with the immunodeficiency virus and at the time of the commission of the offence the person had knowledge or reasonable suspicion of the infection, to the death penalty; (my underlining)
The crown has submitted that on the basis of the contents of exhibit “B” it is clear that “the accused was a well known patient of Paray Mission Hospital who was infected with HIV/AIDS”.
Further on this point, that the only inference which can be drawn from this is that the accused knew that he was infected with HIV/AIDS virus when he committed this offence.
While the contents of exhibit “B” are clear as to the HIV/AIDS status of the accused herein, there are problems with it Mr. Habasisa has correctly alluded to same. Firstly it is the fact that, there is no indication on the record of proceedings that the court a quo gave the accused a chance to say something on the contents of exhibit “B” before it was handed in as part of evidence herein.
Secondly, he (accused) was never asked whether or not he objected to the handing in of exhibit “B” to court to form part of the evidence. Moreso because exhibit “B” was handed to court without the medical doctor who had compiled it having testified as to its authenticity, and also that it should have been handed in as such, not by the Public Prosecutor who is not a keeper of medical records of or in the hospital in question. Neither have previous reports in this regard been availed to court. What we have now is the word of the medical doctor in the form of exhibit “B” – which is not substantiated by anything.
Indeed, even though the accused has tendered a plea of guilty to count I, more needed to have been done in the handing in of exhibit “B” before it was admitted as part of the evidence herein.
Mr. Habasisa therefore submitted that regard being had to the circumstances of this case and to the likely sentence of death herein prescribed, it is not proper nor fair that the said hearsay inadmissible evidence as contained in exhibit “B” has been admitted as part of evidence herein without reservations. This, he argued has been highly prejudicial to the accused.
While this court is inclined to agree with the argument and points raised herein by Mr. Habasisa, on behalf of the accused, it is mindful of the fact that the accused having tendered a plea of guilty to count I, the crown was entitled and it is indeed procedural; to outline the facts of the case; and to hand in documentary evidence in terms of the law. This was quite in order but for the fact that ex facie the record of proceedings, there is nothing showing that the contents of same were shown and discussed or explained to the accused. If the accused had felt that he was not satisfied with contents of this exhibit “B”, he too was entitled to accept or not to accept same.
This court is mindful of the Provisions of Section 30(4) of this Act that:-
“Where a conviction is secured, the results of the test done pursuant to subsection (3) shall be tendered in evidence for the purposes of sentence.”
While the above provisions are clear, this court is left in doubt whether the accused has had the contents of that exhibit “B” explained to him and if so, if he was aware and or if he appreciated the consequences which were to flow from its admission by him of its contents.
Again, one wonders if procedurally it was correct that same was tendered as part of evidence at the stage of the proceedings in the court a quo while it was clear from the beginning that the court a quo was not in a position to impose sentence upon the accused. Be that as it may no prejudice was occasioned by the accused due to the handing in to court of exhibit “B” at that stage alluded to above. Indeed such had to be so handed at that stage so that the court a quo could best be informed as to which kind of sentence it had to impose upon the accused.
SENTENCE
The court has carefully taken into account and consideration all factors which have been raised by Mr. Habasisa on behalf of the accused in mitigation of sentence.
Firstly, he is a first offender and has tendered a plea of guilty to count I. This court is also mindful of the fact that; from what the accused said in mitigation and under oath, he and the complainant were staying together as husband and wife. He denies ever having committed the offence in count I upon her.
Regrettably, what the accused has now told this court at this late stage of the proceedings in question is not even what appears on the record of the proceedings in the court a quo.
This is aside from the fact that this issue is raised at a very late stage. It will not be procedurally correct for this court to engage itself in this issue relating to the relationship of the accused and the complainant. If this court were to do so, it would have reopened the case which has already been dealt with in the court a quo.
This court has or is now called upon to impose sentence upon the accused with regard to count I in the said proceedings from the court a quo.
This court has already alluded to the deficiencies of exhibit “B” and to the fact that the accused was never given a chance to say anything with regard to it contents.
Also it has not been established as a fact nor beyond a reasonable doubt that indeed the accused knew or had reasonable knowledge or suspicion that he was infected with HIV/AIDS virus when he committed this offence upon the complainant.
Neither has it been proved beyond a reasonable doubt that when he committed this offence he did so with the intention of infecting the complainant with that virus.
What is clear from the record of proceedings is that when he committed this Sexual Act upon the complainant, he did so with the intention of taking her to be his wife. This is however unacceptable and is not a defence to this charge.
It is also clear from the said record of proceedings – to wit page 2 of the hand-written record (in fact this record has not been typed) that he used force to commit this crime and that despite the resistance of the complainant, the accused over powered her and forcefully and without her consent had sexual intercourse with her.
For these reasons, the accused has to be dealt with under the Provisions of Section 32(a)(ii) of the Act in question in so far as imposition of punishment upon him is concerned. The accused is accordingly sentenced to a period of eight (8) years imprisonment and regard being had to the fact that the accused has remained in custody awaiting sentencing by this court, for a period of two (2) years, seven (7) months to date the sentence herein imposed should run from the 31st August 2006.
M. MAHASE
JUDGE
For the Accused : Mr. Habasisa
For the Crown : Mr. Letsie