CRI/APN/425/05

IN THE HIGH COURT OF LESOTHO

In the matter between:

LETLALA 'MABATHOANA APPLICANT

V

DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

RULING

Delivered by the Honourable Acting Judge M. Mahase On the 26th September, 2005

This is an application for the applicant's release on bail.

The applicant is presently incarcerated at Berea Prison pending his trial on charges of Murder and Armed Robbery.

He has been held thereat since the 11th August 2005. The alleged incident is said to have occurred at or near Ha Mohlaetoa in the Berea district.

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The application is being strongly opposed by the crown on the following grounds:-

1. The petitioner is charged with serious crimes, which appear to have been actuated by greed.

2. These exists a strong prima facie case against the applicant and the crown has witnesses who will show that applicant was one of the robbers.

3. The seriousness of the crime charged, the existence of a strong prima facie case are factors that might intrigue the applicant to abscond and not stand trial. If convicted the applicant and his co-accused are likely to serve a very long term of imprisonment.

The crown has correctly in my mind, alleged that the onus of proof, in an application of this nature, rests upon the applicant.

It has submitted that the applicant has to proof on a balance of probabilities that the court should exercise its discretion in favour of granting bail.

It is the crown's submission that in discharging this burden, the applicant must show that the interests of justice will not be prejudiced. He therefore has to demonstrate that:

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1. It is likely that he will stand his trial.

2. It is likely that he will not tamper with state witnesses or otherwise interfere with the administration of justice.

It is trite law that the quantum of evidence necessary for the applicant to show on a balance of probabilities that the application should be granted varies according to the circumstances of each case.

In Swift's Law of Criminal Procedure 2nd Edition, the learned author has put it as follows:-

"Where the crown does not oppose the application, little evidence is necessary.

At the other extreme, the accused may have to show special facts or exceptional circumstances if the crown opposes the application".

In the case of S. V Jonas 1998 (2) SACR 673 at (a - i) it was stated that exceptional circumstances are established when an accused is able to adduce evidence that the prosecutions case against him is non-existent or subject to serious doubt S, V. Jonas 1998(2) SACR 673 (a - i).

In the case in Casu, the applicant denies that he was in anyway involved in the commission of these offences.

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The crown, on the other hand, has stated that the police docket contents/statements reveal very clearly that the applicant has been implicated in the commission of the crime he is now facing.

The applicant has not only denied that he was involved in the commission of these offences. He also challenges the crown that its allegation that there is another pending case against him has not been supported by evidence.

The applicant states in his heads of argument that......

"Apart from this, interests of justice that need to be balanced are those of a particular case at hand. The crown cannot rely upon the accused's other pending cases to try and deny him bail in the present. There is even no proof of the existence of such".

Well, I am not so sure that the above is a correct statement of the law. On the contrary, I am of the view that such other pending cases come to play in bail applications. It is not in the interests of justice that the crown should ignore such other pending cases and make mockery of the law by having/allowing those people who commit one crime after another to always be released on bail. If the crown were to ignore such cases, it would have failed to do its duty.

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The applicant has argued that a number of authorities indicate that bail is refused only if the court is satisfied that on the facts, the interests of justice will be prejudiced e.g. tampering with witnesses and failure by the accused to stand trial and so on.

He (applicant) has undertaken not to interfere with police investigations, crown witnesses and to stand trial.

It is his story that his co-accused namely Lineo, Thapelo and Tankiso have been released on bail.

This fact has not been denied by the crown.

In its opposition of this application, the crown has submitted that the applicant has not, and contrary to the provisions of the Criminal Procedure and Evidence (Amendment) Act 2002, established the existence of exceptional circumstances justifying his release on bail.

The crown has argued that the crimes with which the accused person stands charged fall within the ambit of the above shown amended Act.

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The applicant alleges that the crown has not mentioned how these crimes qualify to fall within the ambit of the said amended Act.

He submitted, on the contrary that the fact that the other co-accused have been released on bail, is itself a special circumstance entitling him to be released on bail.

It has already been indicated that the crown has not denied that the other co-accused herein have been released on bail.

This court is however not persuaded that the applicant has proofed on a balance of probabilities that exceptional circumstances exist or have been established, entitling him to the release on bail.

In S. V. Jones (supra) it was said that......

"Exceptional circumstances are established when an accused is able to adduce acceptable evidence that the prosecution's case against him is non-existent or subject to serious doubt".

The fact that other co-accused have been released on bail can not therefore be an exceptional circumstance as envisaged by the Criminal Procedure and Evidence (Amendment) Act 2002.

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Be that as it may, I have not been persuaded that the grounds upon which the crown opposes this application hold water. These are matters to be dealt with at or during the trial. These grounds are not supported by an iota of evidence. They are bare allegations.

The applicant has undertaken, among other things, to stand trial, not to interfere with crown witnesses and the police investigations. The crown has not challenged that undertaking of the applicant in any serious/meaningful manner.

In Swift's Law of Criminal Procedure 2nd Edition at page 149, it is stated that:-

"The court is always desirous that an accused should be allowed bail if it is clear that the interests of justice will not be prejudiced thereby, more particularly if it thinks upon the facts before it that he will appear to stand his trial".

Per Innes CJ. in McCathy V R. 1906 T. S. 657 at 659.

In his Criminal Law and Procedure through cases, M.P. Mofokeng J (as he then was) states as follows at page 188:-

"In dealing with applications such as this, it is necessary to strike a balance, as far as that can be done, between protecting the liberty of the individual and safe guarding and ensuring the proper administration of justice".

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This court has carefully considered the objection by the Director of Public Prosecutions, but it has come to the conclusion that the applicant has discharged its onus on a balance of probabilities and the application for his release on bail is granted as prayed except that the court does not agree with the suggested bail amount of M250.00.

Application is accordingly granted on the terms in the notice of motion, but the bail cash deposit is fixed at M2,000.00 (Two Thousand Maluti).

M. MAHASE (MRS)

ACTING JUDGE

FOR APPELLANT : Mr. Lekokoto

FOR CROWN : Mr. Peete

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