Meli v R

Overview | [1954] 1 All ER 373, | [1954] 1 WLR 228, 98 Sol Jo 77

THABO MELI AND OTHERS APPELLANTS; AND THE QUEEN

RESPONDENT. [1954] 1 WLR 228

ON APPEAL FROM THE HIGH COURT OF BASUTOLAND.

[PRIVY COUNCIL.]
LORD GODDARD C.J., LORD REID, and MR. L. M. D. DE SILVA.
1954 Jan. 13.

Basutoland — Criminal Law — Murder — Erroneous belief of accused that blows caused death — Whether
mens rea in respect of their subsequent acts which in fact caused death — Preconceived plot to kill — One
inseparable transaction.

Criminal Law.

The appellants, in execution of a preconceived plot to kill the deceased, took him to a hut where he was struck over
the head with an instrument, and then, believing him to be dead, they took him out and rolled him over a low cliff
and dressed the scene to make it look like an accident. The medical evidence established, however, that the
injuries received in the hut were not sufficient to cause the death, which was in fact due to exposure when he was
left at the foot of the cliff. The appellants appealed against their conviction for murder, alleging, inter alia, that while
the first act — the blows in the hut — was accompanied by mens rea, it was not the cause of death, but that the
second act, while it was the cause of death, was not accompanied by mens rea, and contended that in those
circumstances they were not guilty of any crime, except perhaps culpable homicide:—

Held , that it was impossible to divide up what was really one transaction in that way. The appellants set out to do
all those acts as part of, and to achieve, their plan, and it was much too refined a ground of judgment to say that,
because they were under a misapprehension at one stage and thought that their guilty purpose had been
achieved before it in fact was, therefore they were not guilty of murder. There was no difference relevant to the
present case between the law of South Africa and that of England, and by both laws there could be no
separation such as that for which the appellants contended merely because of their misapprehension.
Judgment of the High Court of Basutoland affirmed.

APPEAL (No. 28 of 1953), by special leave in forma pauperis, from a judgment and sentence given and passed in
the High Court of Basutoland (Harragin Ag.J.) (March 26, 1953) whereby the four appellants were convicted and
sentenced to death upon a charge of having murdered a Mosuto male, one Ntlobiseng Lekhoo. The appellants,
who were jointly indicted and jointly tried, had pleaded not guilty to the charge.

It was alleged that the deceased had been brought to a hut on July 12, 1952, given beer, and while in a partially
intoxicated condition was struck on the head with an instrument, and then carried out of the hut and left in the open.
 Page 2 of 3
THABO MELI AND OTHERS APPELLANTS; AND THE QUEEN RESPONDENT. [1954] 1 WLR 228

The main and substantial questions in this appeal arose from the conflict as regards the cause of the death of the
deceased, between the [*229]
evidence of two self-confessed accomplices upon which the case for the prosecution was mainly based, and the
medical evidence called on behalf of the prosecution.

Both the accomplices gave evidence to the effect that they believed the deceased to be dead as a result of the
blows in the hut. The medical evidence was to the effect that the deceased had not died as a result of the blows,
but that his death was due to exposure, and the trial judge found as a fact that he did not die from the blows but
from exposure.

In those circumstances it was submitted for the appellants, inter alia, that they ought not to have been, and were
wrongly in law, found guilty of having murdered the deceased; that according to the Roman-Dutch law, which was
to be applied in Basutoland in accordance with the provisions of the General Law Proclamation (Laws of
Basutoland, 1949 Rev., c. 26), a fundamental and essential requirement in the proof of a charge of murder was an
animus occidendi or intention on the part of those charged therewith to kill, and the killing, in pursuance of such
intention of the person murdered. That was to say that in the case of the appellants they could not according to that
law have murdered the deceased, inasmuch as the death, as caused according to the medical evidence and found
by the trial judge, was not and could not have been intended by them since they believed that the deceased was
already dead when he was left out in the open, and his death by exposure, therefore, was, so far as the appellants
were concerned, something unintended by them or which they could not have expected to have happened. They
had, it was contended, in regard to the death of the deceased as caused according to the medical evidence and the
finding of the judge no animus occidendi or mens rea.

1954. Jan. 13. S. N. Bernstein and A. Hughes-Chamberlain for the appellants.

Frank Gahan Q.C. and J. G. Le Quesne for the respondent.

The following cases and textbooks were referred to in argument: Rex v. Ndhlovu1; Rex v. Valachia2; Rex v.
Kuzwayo3; Pittman's Criminal Law in South Africa, 3rd ed., p. 116; South African Criminal Law and Procedure, 5th
ed., vol. 1, p. 31, by Gardiner and Lansdown.

Jan. 13. The judgment of their Lordships was delivered by LORD REID. The four appellants in this case were
convicted of murder after a trial before Harragin J. in the High Court of Basutoland, in March, 1953. The appeal
which has been heard by this Board dealt with two matters: first, that the conclusions of the judge on questions of
fact were not warranted; and, second, [*230]
that, by reason of a matter which can be dealt with later, on a point of law the accused are entitled to have the
verdict quashed.

On the first matter, there really is no ground for criticizing the judge's treatment of the facts. It is established by
evidence, which was believed and which is apparently credible, that there was a preconceived plot on the part of
the four accused to bring the deceased man to a hut and there to kill him; and then to fake an accident, so that the
accused should escape the penalty for their act. The deceased man was brought to the hut. He was there treated to
beer and was at least partially intoxicated; and he was then struck over the head in accordance with the plan of the
accused.

There is at least doubt whether the weapon which was produced as being like the weapon which was used would
have produced the injuries which were found, but it may be that this weapon is not exactly similar to the one which
was used, or it may be that the blow was a glancing blow and produced less severe injuries than those which one
might expect; but, in any event, the man was unconscious after receiving the blow.

There is no evidence that the accused then believed that he was dead, but their Lordships are prepared to assume
that they did; and it is only on that assumption that any statable case can be made for this appeal. The accused
 Page 3 of 3
THABO MELI AND OTHERS APPELLANTS; AND THE QUEEN RESPONDENT. [1954] 1 WLR 228

took out the body, rolled it over a low krantz or cliff, and dressed up the scene to make it look like an accident.
Obviously they believed at that time that the man was dead, but it appears from the medical evidence that the
injuries which he received in the hut were not sufficient to cause the death and that the final cause of his death was
exposure where he was left at the foot of the krantz.

The point of law which was raised in this case can be simply stated. It is said that two acts were necessary and
were separable: first, the attack in the hut; and, secondly, the placing of the body outside afterwards. It is said that,
while the first act was accompanied by mens rea, it was not the cause of death; but that the second act, while it was
the cause of death, was not accompanied by mens rea; and on that ground it is said that the accused are not guilty
of any crime except perhaps culpable homicide.

It appears to their Lordships impossible to divide up what was really one transaction in this way. There is no doubt
that the accused set out to do all these acts in order to achieve their plan and as parts of their plan; and it is much
too refined a ground of judgment to say that, because they were under a misapprehension at one stage and
thought that their guilty purpose and been achieved before in fact it was achieved, therefore they are to escape the
penalties of the law. Their Lordships do not think that this is a matter which is susceptible of elaboration. There
appears to be no case either in South Africa or England, or for that matter elsewhere, which resembles the present.
Their Lordships can find no difference relevant to the present case [*231]
between the law of South Africa and the law of England, and they are of opinion that by both laws there could be no
separation such as that for which the accused contend, so as to reduce the crime from murder to a lesser crime,
merely because the accused were under some misapprehension for a time during the completion of their criminal
plot.

Their Lordships must, therefore, humbly advise Her Majesty that this appeal should be dismissed.

Solicitors: Hy. S. L. Polak & Co.; Burchells.

C. C.

1 [1945] S.A.L.R.(A.D.) 369, 371.

2 [1945] S.A.L.R.(A.D.) 826, 831.

3 [1949] 3 S.A.L.R.(A.D.) 761, 771.

End of Document