CRI/A/89/91 IN THE HIGH COURT OF LESOTHO
In the matter between:
POTSO CHAKELA 1ST APPELLANT
MAKHERANE LEMAKO 2ND APPELLANT
Before the Honourable Chief Justice Mr. Justice B.P. Cullinan on the 16th day of April, 1992.
For the First Appellant : Mr. S. Mphutlane
For the Second Appellant : Mr. M.E. Teele
For the Respondent : Miss N. Nku, Crown Counsel
JUDGMENT Case referred to:
R v Turnbull & Ors. (1976)1 All E.R. 549;
R v Bereng & Ors. CRI/T/23/87, Unreported.
The two appellants were convicted with a co-accused (the first accused) by the Resident Magistrate at Leribe, of assault with intent to do grievous bodily harm, and were each sentenced to six years' imprisonment. For convenience I shall refer to the first and second appellant as the second and third accused respectively. On the 10th April I allowed the appeals and set
aside the convictions and sentences in respect of the second and third accused; in the exercise of my revisional jurisdiction I ordered likewise in respect of the first accused. I did so for reasons which now follow.
Mr. Mphutlane submits that the record does not indicate whether the three accused pleaded to the charge. The charge sheet indicates that they did so, however, and that they all pleaded not guilty. Mr. Mphutlane submits that such charge sheet is invariably completed at the end of the trial. Quite clearly the entries for "Judgment" and "Sentence" are completed at the end of the trial, but there is nothing before me to indicate that the plea was not entered on the particular date recorded on the charge sheet. There is the presumption of regularity and prima facie the record indicates that all three accused pleaded not guilty at the commencement of the trial. That record has not been challenged.
Nonetheless I pause here to observe that the charge sheet contains, apart from the charge itself, a summary of other matters, some of which are dealt with more fully in the record as such, namely the plea, judgment and sentence. It is customary to record the plea in the body of the record. I take this opportunity of observing that it is a salutary practice for all Magistrates to record as accurately as possible, the actual words used by an accused in pleading to the charge. This of course is particularly important where the words used amount to a plea of
guilty. As to the present case, while the body of the record contains no entry regarding the plea, a plea of not guilty is recorded on the charge sheet and while I am not to be taken as saying that such would suffice in all cases, I do not see that any irregularity arises.
There is further difficulty however. On the date the trial commenced, Mr. Mphutlane is not recorded as appearing - though his name and that of the prosecutor is endorsed on the charge sheet. That the charge sheet contains but a summary of the record, is evident from the fact that Mr. Mphutlane's name is inscribed in the space on the charge sheet under the heading "For Defence". Quite clearly the space on the charge sheet is inadequate where there is more than one accused, or indeed more than one legal representative. In such cases it is necessary, and in all cases it is customary, and again a salutary practice, for Magistrates to make an entry in the body of the record as to the names of the legal representative and prosecutor. The importance of this aspect will shortly appear.
In the present case it was necessary to record Mr. Mphutlane's appearance in the body of the record, and in particular which accused or accuseds he represented. That was not done. When the first witness, the complainant, had given his evidence in chief, the record reads, "Cross-Examination by Mr. Mphutlane". Apart from the entry on the charge sheet, that was the first reference in the body of the record to the presence of
The complainant was cross-examined at length by Mr. Mphutlane. When the cross-examination was concluded the witness was re-examined by the prosecutor. Then followed a number of adjournments.
At the adjourned hearing the record reads:
"Mr. Mphutlane: I am asking the court to start with a civil application. I am moving now we will proceed with this case afterwards.
Court: Mr. Mphutlane I understand your application is urgent, but this has been long pending. I prefer to dispose of it first. In any case we have already called the accused in.
Mr. Mphutlane: If the court does not accede to my request I will not proceed with this case.
Court: But the court will proceed. Mr. Mphutlane moves out.
Accused 1: We ask that this case be postponed until such time when our attorney will be available.
Court:- We will proceed.
Public Prosecutor:- We ask the court to proceed because the Attorney for the defence knew this date long time ago. I don't think Mr. Mphutlane has any reasonable grounds not to be before court now.
Court:- Do you want any other attorney accused or do you want this attorney.
Accused answering together:- We will want the same attorney not any other one.
Court;- We will proceed."
The second witness then gave his evidence. All three accused declined to cross-examine him. The Court asked him three questions. The third Crown witness also gave evidence. Again the three accused declined to cross-examine him. There followed another two adjournments.
At the adjourned hearing there is again no record of any appearance by a legal representative or the prosecutor. The fourth prosecution witness, a doctor, was examined in chief -presumably by the prosecutor. The record then contains a submission made by Mr. Mphutlane, the first indication that he was present in court. When the doctor concluded his examination in chief, he was cross-examined by Mr. Mphutlane. He was not apparently re-examined and then the Crown closed its case. The record then reads:
"There is a case for accused to answer.
Accused rights explained.
Accused 3 elects to remain silent.
Mr. Mphutlane;- I appear for accused 1 and 2.
Mr. Mphutlane;- There are witnesses whose evidence was taken in my absence.
Court:- The application is not granted.
Court:- May I ask why you should re-appear before me in this court without any apology.
Mr. Mphutlane:- I cannot apologise. 1 wanted to start with that case and not this one and as the court told me it was not ready to take that case but this one I said I was not ready to proceed with this case.
Court:- May I ask you why I should not ask you to apologise before I hear you in this case.
Mr. Mphutlane: I cannot apologise.
Court:- Then if you cannot apologise 1 will not allow you to appear before me in this case.
Mr. Mphutlane: I will not apologise the court can do as it pleases. I have the right of audience before this court.
Court: But surely it is the presiding officer who runs the court and not the counsel.
Mr. Mphutlane:- I will not apologise.
Court:- Then 1 will not hear any more in this case of you.
Accused 1 and 2 you have heard the election I have put to you.
Accused elect to give evidence."
The first and second accused then gave evidence. When the second accused had completed his evidence the record reads thus;
"Accused 3:- 1 was confused when I took my decision because I knew Mr. Mphutlane was appearing on my behalf. When he said he was not appearing I was confused. 1 know 1 had not fully paid him but he had agreed that he would still represent me. Now all of a (sudden) he said he does not appear for me. I would like to give evidence as well."
The third accused then gave his evidence. Then followed more adjournments. At the adjourned hearing the accuseds indicated they did not wish to call any witnesses. Submissions were then made by the prosecutor and by all three accused in turn. Judgment was then reserved and delivered on a subsequent
It proves convenient to first deal with a ground of appeal raised by Mr. Teele, who appears on behalf of the third accused, Mr. Teele submits that the record indicates some confusion as to whether or not the third accused was represented by Mr. Mphutlane: if it was the case that he was not represented, then the third accused was not given an opportunity to cross-examine the main witness, the complainant, which would amount to such an irregularity as to lead to the quashing of his conviction.
It is unfortunate that the learned Resident Magistrate did not record the appearance by Mr. Mphutlane in respect of each and every accused. The endorsement on the charge sheet is simply insufficient. The record indicates throughout, however, a careful regard for the right of the accuseds to cross-examination of not alone Crown witnesses but also defence witnesses, that is, the respective accuseds themselves. I can only say that Mr. Mphutlane must have initially informed the Court that he appeared for all three accuseds, which would explain the need for the learned Resident Magistrate to subsequently record that he was appearing for the first and second accused.
Furthermore, during the course of the cross-examination of the complainant, Mr. Mphutlane asked the complainant two questions, suggesting to him that, contrary to his evidence, the third accused had not been present at all at a drinking place,
before the assault, in the company of the other two accused. Those questions could only have been put to the witness on the basis of instructions received from the third accused. When it came to the close of the cross-examination, I agree with Mr. Teele that the third accused's case was not put to the witness, but only that of the first and second accused. All of the earlier questions however were directed at suggesting that the witness simply did not know who had assaulted him. In any event,the course of the cross-examination was a matter for Mr. Mphutlane.
The third accused himself was clearly under the impression that Mr. Mphutlane had represented him, which, combined with the fact that the learned Resident Magistrate was apparently under the same impression, can only confirm the aspect that Mr. Mphutlane must have so informed the learned Resident Magistrate. This is again confirmed by the aspect that the third accused said that Mr. Mphutlane had "all of a sudden" said in effect that he did not represent him, indicating a change of mind. While I appreciate that Mr. Mphutlane now represents only the second accused, nothing has been said by Mr. Mphutlane in the course of this hearing to indicate that he did not inform the Resident Magistrate of his representation of the third accused. On the papers before me I can only conclude that Mr.Mphutlane did initially represent the third accused. There was then no irregularity involved and this ground must fail.
-9-Both Mr. Mphutlane and Mr. Teele then rely on the aspect of
Mr. Mphutlane's departure from the courtroom on the second day of the trial. Mr. Mphutlane in the grounds of appeal for the second accused, refers to his "expulsion" from the Court.
Mr. Mphutlane informed this Court from the Bar that he had been involved in another urgent matter before the learned Resident Magistrate on the particular day, in which impounded cattle were involved. Mr. Mphutlane obviously gave priority in the matter to the latter case. The matter of priority however rested with the Court. Mr. Mphutlane was clearly not "expelled" from the Court. He chose to withdraw. In this respect, while withdrawal may be effected in any case, it is, in my experience, only effected in criminal cases with leave of the Court. While withdrawal may be desirable in some criminal cases, e.g. where a clash of interest has arisen, it is clearly undesirable in the vast majority of cases, due to the grave inconvenience if not unfairness suffered by the accused. The position therefore was that Mr. Mphutlane withdrew, and did so without seeking the leave of the Court, and, it must be said, without due regard for the defence of his clients.
As to whether the learned Resident Magistrate should have proceeded thereafter, it has been said that an accused is entitled to representation by a legal representative of his choice. But, generally speaking, that right of representation can only refer to a legal representative who is available. In
the present case the legal representative had withdrawn from the case, without seeking the leave of the Court, and I cannot see how it could be said to be unjust for the Court to refuse an adjournment to secure the attendance of the same representative.
Mr. Teele submits that in indicating to the accuseds that they might engage the services of "any other attorney", it was not stated that an adjournment would be granted to do so. I cannot imagine what else could be implied from what the learned Resident Magistrate said. It amounted to this, that they could have the services of "any other attorney", and clearly an adjournment would be necessary if the accuseds decided on the latter course. They declined to do so. Under the circumstances I cannot see that the learned Resident Magistrate had any option but to proceed. Thereafter the fact that the accuseds declined to cross-examine the second and third Crown witnesses was a matter of their own choice.
At the adjourned hearing, there is little doubt that the learned Resident Magistrate displayed some indecision in allowing Mr. Mphutlane to appear and thereafter cross-examine the fourth witness, the doctor, before raising the aspect of such appearance. Mr. Mphutlane submits that he was denied a right of audience. But that ignores the fact that it was he who had chosen to withdraw from the trial. To do so without seeking the leave of the Court, in my opinion, constitutes behaviour, and I wish to put it at its very least, calling for an apology to the
Court. The failure, indeed the refusal to apologise only served to exacerbate the situation and 1 cannot but see that the learned Resident Magistrate was justified in declining to hear Mr. Mphutlane thereafter. Indeed, it seems to me that the learned Resident Magistrate could only be criticized for his failure to deal with such aspects immediately upon the court's sitting and before the doctor had given his evidence. It might be said that having allowed Mr. Mphutlane to cross-examine the doctor, he should have allowed him to continue to appear before him and perhaps deliver a suitable admonishment to Mr. Mphutlane in the matter. That, I think, would have been the better course. As matters developed however, and in the face of Mr. Mphutlane's further behaviour, in his refusal to apologise. I consider, as I have said, that the learned Resident Magistrate was justified in declining to hear Mr. Mphutlane.
Much has been said about the right to representation by a legal representative of one's own choice. Again much has been said about the legal representative's right of audience. That again is trite. But that right is again qualified by the legal representative's very behaviour. It is said that the resulting trial in this case was unfair. I do not agree. It is not every case in which the accused is represented, and yet justice is done, both in the Subordinate Courts and in the Local Courts. Undoubtedly the accuseds in the present case failed to cross-examine two prosecution witnesses, but they were given every opportunity to do so and I cannot'then see that the trial was
unfair. This ground must therefore fail.
I turn then to the other grounds of appeal. The complainant testified that after leaving a drinking place, where the three accused had also drunk, but had left before him, he was attacked by the three accused, armed with sticks and possibly a sword, the third accused being armed with a knife. He fell from his horse and, while prone on the ground, was belaboured by the three accused, who eventually left when two others approached.
One of those two others turned out to be the complainant's nephew. They surveyed the prostrate complainant by the light of a match, but failed to recognize him due to the blood on his face. They departed, leaving him on the ground. The injured complainant crawled to a nearby house and was ultimately taken to the police and then to hospital. He was admitted to hospital for four days and was discharged.
Two questions arose, one of identification, that is, the danger of honest mistake as to identification, and secondly the question of credibility. As to the first aspect, the Crown case depended wholly on the correctness of identification of the accuseds by two Crown witnesses, yet at no stage did the learned Resident Magistrate warn himself of the special need for caution.
The complainant testified that the time of the assault was about 6.30 p.m. to 7 p.m. His nephew testified that the time was
7.30 p.m. The learned Resident Magistrate observed that,
"We all know that in Summer 7.30 p.m. does not come at dusk. There is nothing which wold give the court doubt that PW1 (the complainant) did not have the clear sight to see each of these accused."
I very much doubt if one could take judicial notice of the proposition advanced by the learned Resident Magistrate. In any event, the time of 7.30 p.m. could only have been an approximation. Even though it was summer time, it was clearly night time, as otherwise there would be no necessity for the nephew to light a match to view the prostrate complainant. Secondly, it was the nephew's evidence that he had gone to a neighbouring place to steal peaches, when he witnessed the assault. It is hardly likely that he would venture to steal peaches, other than in the dark.
The fact is, as I have said, that the nephew had to light a match to view the face of his uncle. How then can it possibly be said that the complainant could view his assailants clearly, particularly as the encounter was of the "fleeting glance" variety and he was under sudden and grave pressure, and indeed was not fully conscious. He testified that he knew the accuseds well, but then, as Lord Widgery C.J. observed in the case of Turnbull & Ors. (1) at p,552 (quoted in R v Bereng & Ors. (2) at p.17 and p.21):
"Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone whom he knows, the Jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made."
Again, the nephew was on his own evidence at a distance of some 50 to 100 metres and I cannot see how his evidence of identification lent any support in the circumstances. The quality of the evidence of identification was poor. Under the circumstances the learned Resident Magistrate should have looked for supporting evidence. He did not do so. He did consider words allegedly spoken during the assault by the first accused, which could be said to betray his identity. But that evidence came from the complainant himself, was not independent evidence and in any event gave rise to the issue of credibility.
As to the issue of credibility, the learned Resident Magistrate never addressed himself to that aspect. The complainant testified that the third accused stabbed him with a knife, two or three times, in the back. Yet the medical report indicates "bruises all over the body", with "several wounds on head that needed suturing". The particular doctor opined that a 'blunt instrument' had been used. A second doctor, who admitted the complainant to hospital, that is, after the wounds had been sutured, opined in a report that the complainant had been "injured with a knife on the chest, face and head". A third doctor however, who gave evidence, opined that it would not have
been easy for the second doctor, with the wounds sutured, to give an opinion as to the nature of the weapon used. The probabilities are therefore that a knife was not used. In any event, there was no medical evidence of any stab wounds in the back. Again,the complainant testified that he was admitted to hospital for four weeks. The medical report and the doctor's evidence indicates that he spent four days in hospital.
The evidence of the nephew is, to say the least of it, suspect. His evidence that he was stealing peaches indicates relative youth, if not childhood. Yet his age, or for that matter that of the other witnesses, is not stated on the record. The age of a witness is always relevant. In some cases it may prove to be of vital importance. It is then requisite to record the age of all witnesses, in all cases. In the present case, it may well be that the second crown witness was of tender years. It may be indeed that the oath should not have been administered to him, that is, without a proper vozr dire. I simply cannot say.
In any event, his evidence that at a distance of 50/100 metres he observed that the first accused was wearing a red blanket and the third accused a brown jersey, when he could not recognize his uncle's face by the light of a match, a few feet, if not inches away, cannot be true. He testified that he recognized the voices of the three accused,yet he failed to recognize the voice of "the horseman", his uncle. Again, I
cannot imagine how he could fail to recognize his uncle's face, even if covered in blood, not to mention his general form and appearance and clothing.
There is the evidence of the complainant that he recognized his nephew. Considering that the complainant was conscious enough to crawl to a nearby house, I find it totally unrealistic that he was unable to communicate with his nephew and inform him as to who had assaulted him. Instead we have the evidence that the nephew and the other simply left the complainant where he lay, and made no effort to support him or assist him to a nearby house. In all the circumstances, the question arises as to whether or not the nephew was ever present at the scene. Indeed, as a young relative of the complainant, considering the possibility of avuncular influence, he must be regarded as a witness with a possible interest to serve and his evidence should have been regarded with caution.
As to the evidence of the accuseds, they testified that they simply were not present at the scene. Nowhere in his judgment however does the learned Resident Magistrate recount, much less assess such evidence, Nowehere does he apply the test as to whether the accused's evidence might be reasonably possibly true.
The learned Resident Magistrate did not consider the aspects of the Crown evidence to which I have referred. I am in no way satisfied that had he done so, he would inevitably have convicted
the accuseds. It would be unsafe to allow the convictions to stand.
For those reasons I allowed the appeals therefore and set aside the conviction and sentences in respect of the second and third accuseds. In the exercise of my revisional jurisdiction I also set aside the conviction and sentence in respect of the first accused Lilapa Tlotsanyane,
Delivered at Maseru This 16th Day of April, 1992.