HIGH COURT OF LESOTHO
OF PUBLIC PROSECUTIONS RESPONDENT
by the Honourable Acting Judge M. Mahase On the 26th September, 2005
an application for the applicant's release on bail.
applicant is presently incarcerated at Berea Prison pending his trial
on charges of Murder and Armed Robbery.
been held thereat since the 11th August 2005. The alleged incident is
said to have occurred at or near Ha Mohlaetoa in the
application is being strongly opposed by the crown on the following
petitioner is charged with serious crimes, which appear to have been
actuated by greed.
exists a strong prima facie case against the applicant and the crown
has witnesses who will show that applicant was one
of the robbers.
seriousness of the crime charged, the existence of a strong prima
facie case are factors that might intrigue the applicant
and not stand trial. If convicted the applicant and his co-accused
are likely to serve a very long term of imprisonment.
has correctly in my mind, alleged that the onus of proof, in an
application of this nature, rests upon the applicant.
submitted that the applicant has to proof on a balance of
probabilities that the court should exercise its discretion in
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
therefore has to demonstrate that:
is likely that he will stand his trial.
is likely that he will not tamper with state witnesses or otherwise
interfere with the administration of justice.
trite law that the quantum of evidence necessary for the applicant to
show on a balance of probabilities that the application
granted varies according to the circumstances of each case.
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".
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)
(a - i).
case in Casu, the applicant denies that he was in anyway involved in
the commission of these offences.
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.
applicant has not only denied that he was involved in the commission
of these offences. He also challenges the crown that its
that there is another pending case against him has not been supported
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
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".
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.
applicant has argued that a number of authorities indicate that bail
is refused only if the court is satisfied that on the facts,
interests of justice will be prejudiced e.g. tampering with witnesses
and failure by the accused to stand trial and so on.
(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.
has not been denied by the crown.
opposition of this application, the crown has submitted that the
applicant has not, and contrary to the provisions of the
Procedure and Evidence (Amendment) Act 2002, established the
existence of exceptional circumstances justifying his release
has argued that the crimes with which the accused person stands
charged fall within the ambit of the above shown amended
applicant alleges that the crown has not mentioned how these crimes
qualify to fall within the ambit of the said amended Act.
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.
already been indicated that the crown has not denied that the other
co-accused herein have been released on bail.
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".
that other co-accused have been released on bail can not therefore be
an exceptional circumstance as envisaged by the Criminal
and Evidence (Amendment) Act 2002.
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.
applicant has undertaken, among other things, to stand trial, not to
interfere with crown witnesses and the police investigations.
crown has not challenged that undertaking of the applicant in any
Swift's Law of Criminal Procedure 2nd Edition at page 149, it is
"The court is always desirous that an accused should be allowed
bail if it is clear that the interests of justice will not
prejudiced thereby, more particularly if it thinks upon the facts
before it that he will appear to stand his trial".
CJ. in McCathy V R. 1906 T. S. 657 at 659.
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
liberty of the individual and safe guarding and ensuring the proper
administration of justice".
court has carefully considered the objection by the Director of
Public Prosecutions, but it has come to the conclusion that
applicant has discharged its onus on a balance of probabilities and
the application for his release on bail is granted as prayed
that the court does not agree with the suggested bail amount of
is accordingly granted on the terms in the notice of motion, but the
bail cash deposit is fixed at M2,000.00 (Two Thousand
APPELLANT : Mr. Lekokoto
: Mr. Peete
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