R v Qobose (CRI/T 14 of 86) [1986] LSCA 144 (3 November 1986)

CRI/T/14/86 IN THE HIGH COURT OF LESOTHO In the matter of : R EX v RAMASHAMOLE QOBOSE J U D G M E NT Delivered by the Honourable Acting Chief Justice Mr. Justice J. L. Kheola on the 3rd day of November, 1986. The accused is charged with murder, it being alleged that on the 6th day of December, 1984 and at or near Bela-Bela in the district of Berea he unlawfully and intentionally killed 'Mamokete Qobqse. The accused pleaded guilty to the charge but his counsel, Mr. Rakuoane, informed the court that according to his instructions the proper plea should be that of not guilty. A plea of not guilty was entered. Although the defence admitted the entire preparatory examination record as evidence before this Court, Miss Nku, for the Crown decided that the Court should hear the evidence of Dr. Mohapeloa. His evidence is summarised in his report which reads as follows: - 2 - "MEDICAL REPORT REX vs RAMASHAMOLE QOBOSE X hereby testify that I examinsed the accused, Ramashamole Qobose, and I have scrutinized all documents relevant to his case. In addition I interviewed the grandparents who brought up the accused. I first examined the accused on March 1st 1985 and my final report is based on clinical findings covering the period from that date till 22nd October 1986 when I last examined the accused at Mohlomi Hospital. At the time of my final examination the accused was in a normal state of both mental and physical health. It transpired that the accused had suffered from epileptic fits for several years, but he has not had any fits nor has he exhibited abnormal behaviour since his detention at the Central Prison, with regular administration of an anti-epileptic drug. Bearing in mind my report dated 24th June, 1985 exhibit "A" of the preliminary Examination Record - I must revise the opinion which I expressed on the personality of the accused. I do so on the basis of further observation of the accused and deeper enquiry into his early psycho-social development. As already stated, Ramashamole suffers from epilepsy. The aberrations of personality which he showed in the past are attributable to untreated epilepsy. I am satisfied that the accused is fit to stand trial; and that he was in a state of diminished responsibility due to epilepsy at the time of the alleged offence. It is now my opinion that Ramashamole will probably load a normal life provided that he continues to receive pro- per care and medication. MASERU 24th October, 1986. LENNOX M. MOHAPELOA, M. B. CH. B. (Natal) D. P. M (England) F. PSYCH (Vienna) DIRECTOR OF MENTAL HEALTH SERVICES." The state of the mind of the accused at the time of the alleged offence becomes relevant only after the Crown has proved beyond a reasonable doubt that the accused committed the alleged act of killing the deceased. The Crown evidence was to the effect that on the 6th December, 1984 the accused and the deceased were seen together going about in the village. It was in the afternoon. The deceased was a young child of two years of age. At dusk it was discovered that the deceased was not at her home and a search for her was launched. The accused was asked about the deceased but his answer was that he did not know where she was. Later that evening the dead body of the deceased was found in a kraal far from where she had been seen in the company of the accused. There were scratches around her neck which clearly indicated that she had been strangled. According to medical evidence death was due to lack of blood to the brain and lack of air to the lungs. Both conditions were due to pressure applied to the neck. There were scratches, which could have been caused by nails, on the left side of the neck and bruise going from one ear to the other on frontal part of the neck indicating firm pressure over trachea. The evidence of one of the Crown witnesses at the preparatory examination, one Sele Qobose (P. W.5) was that on the following day when the accused was being escorted by villagers to the police station, he had the opportunity of asking the accused what he had done to the deceased. The accused said that "he killed deceased and further he killed mine, by the name of Tsokolo. Accused was frightened, accused is normal, but sometime he becomes somehow." - The words I have undescored are very important in the case because the Crown is submitting that the accused made a confession. They are also important because they tend to show the state of mind of the accused at the time he uttered them. Section 228 (1) of the Criminal Procedure and Evidence Act 1981 provides as follows: (whether "Any confession of the commission of any offence shall, if such confession is proved by competent evidence to have been made by any person accused of such offence before or after his apprehension and whether on a judicial examination or after commitment or whether reduced into writing or not), be admissible in evidence. against such person provided the confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto", The question which immediately arises is whether the accused can be said to have been in his sound and sober senses when he said he killed the deceased. Although the accused was not legally insane at the time he made the admission or confession, there is abundant evidence that he was in a state of diminished responsibility. He was being escorted by a group of villagers and was frightened. Even the evidence of Sele Qobose was that the accused sometimes behaves in an unusual manner. I have considered the matter and have come to the conclusion that it cannot be said that the accused was in his sound and sober senses when he made the incriminatory statement. It has not been proved that he knew what he was saying. The evidence of Sele Qobose was unsatisfactory in the sense that it showed some bias against the accused. He said that he received - information that the deceased had been seen in the company of the accused at dusk. There is no such evidence that accused and deceased were seen together at dusk; the evidence before the Court is that they were seen together during the afternoon and that the dead body was found at dusk far from where they were seen together. It seems to me that anything could have happened during the interval. I have come to the conclusion that the evidence against the accused is so flimsy and unsatisfactory that it cannot be said that the Crown has proved beyond a reasonable doubt that the accused killed the deceased. The accused is found not guilty and is discharged. My assessors agree. J. L. KHEOLA ACTING CHIEF JUSTICE. 3rd November, 1986. For Crown For Defence - Miss Nku - Mr. Rakuoane.