R v Matee (C of A (CRI) No. 6 Of 2002)

Media Neutral Citation: 
[2003] LSHC 45
Judgment Date: 
14 April, 2003

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Head note


Murder - shooting of a police officer in the course of his duties - Evidence of the Crown - consisted of both viva voce and the testimony of a deposition made by an eye witness who died after the preparatory examination at which he testified but before the trial - Such evidence admissible in terms of sec 227 (1) of the Criminal Procedure and Evidence Act - Deposition in casu complying with the statutory requirements - deposition admitted as corroboratory evidence -Weight to be attached to such evidence discussed - appellant's version rejected as patently untrue and incapable of credence - appeal against conviction and sentence dismissed.


C of A (CRI) No. 6 Of 2002


In the matter between:

CHECHILE MALUNGA MATEE Appellant

v

REX Respondent


Held at Maseru on the 2nd of April 2003


CORAM:

Steyn, P

Ramodibedi, JA

Grosskopf, JA


JUDGMENT

Steyn, P


The appellant was charged, jointly with another, with the crime of murder and with a contravention of section 3 (2) (a) of Act 17 of 1966 (two counts). Despite his plea of not guilty he was convicted on the murder charge and on one count of the unlawful possession of a .38 revolver and one round of ammunition. Extenuating circumstances having been found, he was sentenced to 12 years imprisonment on the


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murder charge and to one year's imprisonment on the other charge. The sentences were ordered to run concurrently. The appellant has appealed both against his conviction and sentence.


The evidence in the court below consisted of viva voce evidence, admissions of certain witness statements and the deposition of a witness who died after deposing and before the trial. (Sec 227 (1) of the Criminal Procedure and Evidence Act 1981 (the Act).)


I summarise the Crown evidence. The principal witness was a police trooper, one Mahase. He and the deceased (also a police officer), in the course of their duties, visited a tavern in Leribe run by one Mphasa. The witness saw the appellant entering the tavern. He pointed out the appellant to the deceased as someone who was suspected of having committed certain serious offences of violence. The deceased approached the appellant with his I.D. card in his left hand and a pistol in his right hand - clearly intending to arrest the appellant. The latter then produced a .38 firearm with which, the


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witness assumed, he intended to shoot the deceased. A struggle ensued between these two persons, the deceased attempting to disarm the appellant. In the course of the struggle, the deceased's firearm fell to the ground. A shot was then fired by the appellant which went in "the air". The witness had by now also joined the fracas. He held the appellant in an attempt to disable him and then to disarm him.


The witness describes the ensuing events as follows:


"He (the appellant) was standing in front of me and I was holding his neck and using my left hand to catch his right hand. Before I could catch his hand, accused's firearm was already facing downwards. While he pointed down it (the firearm) immediately made a sound. It (the shot) hit my colleaque.....".


It is common cause that a shot discharged by a .38 firearm, Exhibit 3, caused the death of the deceased. This exhibit was identified as the revolver which the witness, after a long struggle, was able to take away from the appellant. The appellant also had another firearm which was in his breast pocket. The witness also deprived the appellant of this


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weapon.


Several other witnesses were called and various versions of the events were given in evidence. As was to be expected the observations of those who witnessed the events differed depending upon their degree of involvement, their position inside and outside the tavern and, I suspect, their sobriety.


Be that as it may, there are two other witnesses whose evidence was accepted by the Court. They gave evidence which corroborated the version deposed to by Mahase. This was P.W.7, one Separola Letsipa. He was in the tavern with a group that included the deceased. He saw the appellant going to the bar counter. The deceased rose from where he was sitting and went towards the appellant. The witness then saw the deceased take out his firearm and he and the accused struggled over its possession. The witness rose and fled but looked back and he saw the appellant was holding a "shiny firearm" in his right hand and he heard the report of a firearm being discharged. He ran


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outside and peeped though the window. He saw the deceased falling down with his firearm lying next to his right hand. He confirms the evidence of Mahase that the latter struggled and overcame the resistance of the appellant.


The firearm the deceased produced was a "small blackish gun" whilst the one possessed by the appellant was the small shiny one, Exhibit 3, the .38 revolver. Three discharged cartridge cases of this firearm were found in its chamber. (It is common cause that a third shot was fired from this revolver by accused No.2 in the court below after the appellant had been disarmed.)


The version of this witness does differ from that of Mahase in as much as he did not see the deceased identify himself as described by Mahase. He also only saw the struggle between appellant and the deceased over the possession of the latter's firearm.


P.W.3 also gave corroboratory evidence. He was present in the


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tavern when the deceased rose and approached the appellant with a firearm. He saw the deceased speaking to the appellant. A struggle ensued over the deceased's firearm and as the struggle went on, he realized that the appellant was also in possession of a firearm. He identified this latter firearm as a "shiny one" (Exh. 3 the .38 revolver).


It was put to P.W.3 by defence counsel that appellant would say that even if he was the one who shot the deceased "it was on (sic) self-defence because he was attacked by these two people."


The Crown also adduced the evidence of a witness one Morothoane Mafereka (P.W.8) who had died after he had testified at the preparatory examination but before the trial. Sec. 227 (1) of the Act authorises the admissibility of such evidence in the following terms:


"The deposition of any witness taken upon oath before any magistrate at a preparatory examination in the manner required by section 70 in the presence of any person who has been brought before the magistrate on a charge of having committed an offence, or the deposition of a witness taken in circumstances described in section 95, shall be admissible in evidence on the trial of the person for any offence charged by the Director of Public


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Prosecutions in pursuance of the preparatory examination at which the deposition was taken or on that person's trial before a subordinate court or on the remittal of that person's case by the Director of Public Prosecutions after considering the preparatory examination except that -


  1. it is proved on oath to the satisfaction of the court that –


    1. the deponent is dead;


    1. the deponent is incapable of giving evidence;


    1. the deponent is too ill to attend; or


    1. the deponent is kept away from trial by the means and contrivance of the accused, or is outside the jurisdiction and his attendance cannot be procured without considerable amount of delay or expense and the deposition offered in evidence is the same which was sworn before the magistrate without alteration; and


  1. it appears on record or is proved to the satisfaction of the court that the accused, by himself, his counsel, attorney or law agent, had a full opportunity of cross-examining the witness."


It is incontestable that the requirements of this provision were complied with in casu. The weight to be given to it would, however, depend on the circumstances of each case. Factors that could affect the weight to be attached to such a statement would include the nature and weight of the other evidence before the court, the inherent


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probability of the version related in the statement, its cohesion, the independence of the deponent and the purpose for which the evidence is tendered.


The factors enumerated above are not intended to be exhaustive. In the present case there is indeed another factor of importance to be considered. This is that the fact that cross-examination was not possible cannot be as significant as ordinarily would be the case. I say this because the defence version as deposed to by the appellant was, as would appear from what is said below, not put to any of the Crown witnesses.


The evidence of P.W.8 was the following:


He confirms the events as described by Mahase and, broadly speaking, as corroborated by P.W.3 and P.W.7. He too saw the appellant go to the counter, observed the deceased rising from his table and approaching the appellant. When he did so, he withdrew a small


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firearm and he told the appellant to stand still and not to move. A struggle ensued. The deceased's firearm dropped on the floor during the course of the struggle. The witness then saw the appellant holding a firearm and, whilst they were still both standing up, the appellant shot the deceased with the firearm the former had produced. Mahase, who had by now joined the struggle, then wrestled with the appellant for a long time, but he eventually overpowered him.


The evidence is cohesive. The witness is independent. His evidence accords with the probabilities and is in accordance with other evidence. It should certainly be accorded appropriate weight as corroborative evidence.


The key elements of the Crown case therefore were:


  1. The deceased attempted to arrest the appellant.

  2. In doing so he produced a firearm.

  3. The appellant sought to disarm the deceased.

  4. The latter's firearm fell to the ground.


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  1. The appellant had also produced a firearm, a shiny .38 revolver (Exh. 3).

  2. Appellant discharged his firearm in the course of a struggle with the deceased and Mahase. However, the shot did not hit anyone.

  3. The appellant fired a second shot with his .38 revolver, killing the deceased.

  4. Appellant was then over-powered by Mahase who dispossessed him of Exh.3 as well as a second firearm he had on his person.

  5. The .38 firearm (Exh. 3) came into the possession of accused No.2 in the court below, who fired a third shot with it - into the air.

  6. Three discharged cartridge cases were found in the revolver (Exh. 3 - the shiny revolver - identified as being in the possession of the appellant.)


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  1. The only defence version put by counsel for the appellant was a denial that the appellant shot the deceased and a suggestion that the shot, if fired by the appellant, was fired in self-defence.


The appellant gave evidence in his defence. He testified that early on the day in question, he bought two quarts of beer from the tavern on account. Later the same morning he went back to pay for the beer. He tendered R20. Whilst he was waiting for his change, he was informed by one of the two barmen that someone was pointing a gun at him. He looked back and saw the deceased "pointing a gun at me". The deceased when he was face to face with the appellant never said a word to him.


The deceased then approached him taking two or three steps towards him. The appellant went towards the deceased, grabbed hold of the gun and a struggle ensued over the possession of the firearm. Mahase now joined the struggle, also pointing a gun at the appellant.


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The deceased's gun fell to the ground. The appellant grabbed the gun held by Mahase. Then there was a gun report, but he was not sure whether it was from Mahase's firearm which they were struggling over. As the struggle with Mahase continued, the appellant still had hold of the gun held by Mahase who was now on top of him. The appellant asked him why he was "after him" and what he wanted from him, but Mahase gave no reply. Ultimately and pursuant to the intervention of accused No.2 in the court below, the appellant was overcome and the firearm was taken away by accused 2. It should be noted that the appellant admitted knowing Mahase and that he was a policeman.


Back-up police support arrived, the appellant was arrested and, so he himself testified, a 7.65mm firearm was found to be in his possession. Appellant's evidence was that the .38 revolver (Exh. 3) "the shiny gun" was produced by Mahase and not by him.


The appellant denied ever having shot the deceased and insisted that the witnesses who said that he did, were not telling the truth.


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He was then asked the following questions by his counsel:


"......assuming that his Lordship were to believe that evidence that you actually shot the deceased, what would you say the reason was?"


To this extraordinary proposition the appellant replied as follows:


"If I had shot the reason would be that its because I had been frightened by those guns that were pointed at me, but I, unfortunately, 1 did not shoot my "Lord".


He repeated this assertion later in his evidence and stated emphatically:


"I never shot a person."


It was on this evidence that the Court had to determine whether the Crown had established beyond a reasonable doubt that the appellant was guilty of murder.


In its judgment the court a quo made the following finding:


"The evidence of P.W.1 (Mahase) was unchallenged that during the struggle between the deceased and A.1 (the appellant), the latter produced Exh. 3 (the shiny gun). P.W.1 testified so and he was unshaken in his testimony that it was that gun that was used


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to shoot the deceased in the circumstances that P.W.1 described. This Court has no reason to disbelieve P.W.1"


Counsel for the appellant was unable to advance any reasons why we should question the correctness of this finding.


Indeed, it is apparent from what I have recorded above, that key elements of the appellant's defence were never put to the Crown witnesses. Most importantly, it was never put to Mahase that he threatened the appellant with a firearm. Neither was it suggested to him or to any of the other eye witnesses that it was Mahase who actually fired the shot with exh. 3 that killed the deceased. Even making allowances for appellant's counsel's evident lack of experience, it is unbelievable that such key aspects of his client's version would not have been put to the witnesses if these were counsel's instructions.


Even more significant is the glaring improbability of the appellant's version. The inability of the appellant to explain how it came about that


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the deceased was shot and the absurd suggestion that, if he was the assailant, when he fired the shot,he acted in self-defence.


The Court was clearly entitled to reject the appellant's version as being patently untrue and incapable of any credence. In these circumstances it follows that the decision to which the court a quo came in convicting the appellant on the charge of murder was clearly correct and the appeal against the conviction is to be dismissed.


Somewhat hesitantly counsel was heard to argue that the sentence was shockingly severe. In my view, if anything, the sentence erred on the side of leniency. Even making due allowance for the alleged unprofessional manner in which the deceased sought to arrest the appellant, the use of a firearm to resist apprehension by a police officer and taking his life, places the moral culpability of the deceased in a category of gravity that certainly merited a sentence of 12 years imprisonment.


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Moreover, counsel could point to no misdirection by the court a quo in determining an appropriate penalty. The personal circumstances of the appellant, and particularly that he was a first offender were properly taken into account.


For these reasons the appeal against the conviction and sentence is dismissed and the conviction and sentence are confirmed.


J.H.Steyn

PRESIDENT


I agree:

M.M. Ramodibedi

JUDGE OF APPEAL


I agree:

F.H. Grosskopf

JUDGE OF APPEAL


Delivered in open Court this 14th day of April 2003.


Counsel for the Appellant: Mr. J.T. Molefi

Counsel for the Respondent: Ms. L. Ntene