CRI/APN/498/07
IN THE HIGH COURT OF LESOTHO
In the matter between: -
NTOBAKI SHALE APPLICANT
And
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara on the 29th November 2007
Applicant herein together with others, was charged with, convicted for murder and sentenced to three (3) years imprisonment without the option of a fine by this Court. He is applying for bail pending appeal. The application is opposed by the Crown.
In support thereof, Mr. Ntsene who represents applicant herein made the following submissions. Firstly, that in every case where bail is sought after conviction, the onus is on the applicant to show why justice requires that he should be granted bail.
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He added that the basic requirements that applicant has to meet before he can be granted bail, are as follows:-
There must be no reasonable possibility that the applicant will abscond and thereby avoid punishment and thus defeat the ends of justice.
There must be a reasonable possibility that a sentence other than imprisonment will be imposed upon him, either in the form of a fine or a wholly suspended custodian sentence.
The interests of justice will not be prejudiced if bail is granted.
There must be prospects for success.
Mr. Ntsene submitted further that the onus resting on applicant to satisfy the court that he/she has good prospects of success on appeal is the most important and that all the others simply follow because the more likely the prospects, the less likely the inducement to abscond.
On the doctrine of common purpose on the basis of which applicant herein was convicted it was Counsel's submission that for applicant to have been found liable, he ought to have participated in the crime with the necessary mens rea and that his liability is not vicarious.
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Further, Counsel for applicant listed the prerequisites which have to be satisfied for a finding of common purpose where there was no prior arrangement as they were laid down in S v Mgedezi & Others 1989 (1) SA 687 at 705 1-7B. It was his submission that these prerequisites have not been satisfied by the Crown evidence in casu.
In this regard, it was Counsel' submission that none of the crown witnesses have placed applicant on the scene of crime either by identifying him as one of the people who were there or mentioning how he conducted himself in pursuance of the alleged crime.
Further that while they concede that the defence of alibi was raised at a late stage when the Crown witnesses could no longer react, the Crown evidence had dismally failed to place applicant on the scene and that the evidence by the defence that tended to incriminate applicant could not in itself discharge the burden of proof placed on the Crown.
That, despite the fact that applicant and the Crown witnesses were fellow villagers and the offence occurred at day light, none of the Crown witnesses related the role he played whereas they were able to do so with regard to his co-accused and that in the absence of such evidence, applicant could not have acted with a common purpose especially since there is no
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evidence pertaining to his intention or his active participation on that day.
Lastly, that since there are prospects of success on appeal, applicant is not a flight risk and that the ends of justice will not be defeated if he is admitted on bail.
On the side of the Crown, Mr. Peete made the following submissions; firstly that, as a general rule a convicted person should not be admitted on bail especially in the case of a serious crime and that the fact that he has noted an appeal or had a point of law reserved does not entitle him to ask that the sentence imposed on him upon conviction be stayed pending the decision of his appeal.
He added that deviation from this general rule requires very strong reasons such as the existence of exceptional circumstances warranting such departure.
That, factors which the Court has to take into account when exercising its judicial discretion whether to grant bail after conviction pending appeal as they were stated in the case of Glen Teboho Serobanyane & Another v Director of Public Prosecutions C of A (CRI) No. 9 of 2005 (unreported) are as follows:-
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It is generally desirable and in the interests of sound and effective administration of justice that a convicted person, who is presumed to have had a fair trial should be required to commence serving his sentence as soon as possible.
The presumption of innocence which precedes conviction no longer applies.
The danger of absconding may be greater after conviction and the imposition of a custodial sentence when an accused person knows his fate is, than before, when he may still live in hope of an acquittal. The fact that an accused has complied with his bail
conditions before conviction is per se no guarantee that he will continue to do so pending appeal.
The prospects of success on appeal.
The facts and circumstances of the particular case under consideration.
To this end, it was Mr. Peete's submission that there is a danger that applicant will abscond if granted bail pending appeal regard being had to the fact that the offence which they committed is serious and the custodial sentence imposed on him is likely to tempt him to flee.
Mr. Peete made the contention that the Court is entitled to convict on the evidence of a single witness if it is satisfied
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beyond a reasonable doubt that such evidence is true and that this may be the case notwithstanding that he is in some respects an unsatisfactory witness.
Lastly, Counsel submitted that in the present application, the prospects of success are not clear cut especially when applicant never rebutted the evidence incriminating them.
As a starting point, I feel constrained to mention that in my occupational life as a judicial officer both in the lower and higher bench I am personally dealing with this kind of application for the very first time. For this reason I think it is apposite to disclose from the onset that I find it a very unusual and difficult situation.
This is because while bail pending appeal forms part of the criminal justice system, for me to be called upon to determine whether or not I should release the very same person whom I convicted especially on the basic ground that he has definite prospects of success is to me, is no different from being called upon to review my own decision and make a finding whether or not I erred which would be the effect of my finding that there are definite prospects of success in this matter.
For this reason I felt a bit consoled upon my later coming across the sentiments that were expressed by the learned
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Cotran A.C.J (as he then was) in Makhoabenyane Motloung and Others v Rex 1974-75 LL370 at 371, quoted to this Court wherein having found himself in a similar situation he had this to say, especially with regard to the submission that appellants had every reasonable chance of success on appeal:-
"On Mr. Kuny's first submission, I am afraid I have been placed in an embarrassment or an unusual predicament I have been the trial judge in this case, and whilst on the one hand, where a recourse to an appellate tribunal can be had, no court can presume that its judgment is correct, on the other hand it would be more or less a negation of my findings, and a fortiori in a criminal case where proof must be beyond reasonable doubt, were I to hold that the applicants have a reasonable chance of success and especially so when nearly all the grounds of appeal challenge findings of fact or credibility of witnesses, and few, if any, legal points have been advanced."
Likewise, in the present application, the main ground of appeal is that applicant herein has definite prospects of success. This is evinced by Mr. Ntsene's submission in his written heads of argument in quoting from the case of Sehloho Monatsi and Others v Director of Public Prosecutions CRI/APN/244/05 at pp 5-6 (unreported) that:-
"The onus resting on applicant to satisfy the court that he or she has good prospects of on appeal, is the important one because the satisfaction of the court on all other requirements simply follows as of necessity once it is established that the applicant has prospects of success on appeal."
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By the same token, I find it extremely difficult to either agree or disagree with this submission lest I am seen and/or heard to be either justifying my findings or retracting from same. However, be that as it may, since other factors besides definite prospects of success have been submitted to this Court for consideration herein. I intend to proceed with this application in that regard.
As Mr. Peete has correctly pointed out in quoting the Court in the Serobanyane case (supra) it is generally desirable and in the
interests of sound and effective administration of justice that a convicted person, who is presumed to have had a fair trial should be required to commence serving his sentence as soon as possible.
In light of the factors already aforementioned in support thereof the question in this case is whether applicant herein has placed before this Court exceptional circumstances that would warrant a departure from this general position. This is because, as it has been correctly stated by the Court in Serobanyane's case (supra) p11, bail cannot simply be had for the asking.
In my opinion, applicant in casu, has not successfully done so for the reason that most of the factors that he has placed
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before this Court for its consideration are standard ones which are usually applied in ordinary bail applications. That is, aside from that of definite prospects of success which I have already alluded to above that, firstly, there must be no reasonable possibility that the applicant will abscond and thereby avoid punishment and thus defeat the ends of justice. Secondly, that there must be a reasonable possibility that a sentence other than imprisonment will be imposed upon him, either in the form of a fine or a wholly suspended custodian sentence and lastly, that the interests of justice will not be prejudiced if applicant is admitted on bail, no exceptional factor has been placed before this court.
This is more the case when all these are weighed against the factors that were laid down in the Serobanyane case (supra) and other authorities referred to therein, to wit;
The presumption of innocence which precedes conviction no longer applies. The danger of absconding may be greater after conviction and the imposition of a custodial sentence when an accused person knows his fate is, than before, when he may still live in hope of an acquittal. The fact that an accused has complied with his bail conditions before conviction is per se no guarantee that he will continue to do so pending appeal as well as the facts and circumstances of the particular case under consideration.
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Over and above this, most of the other issues traversed in support of this application are in my opinion, ideally best left for consideration by the Court of Appeal since this Court has already made its own findings in their regard.
It is for the above reasons that I accordingly dismiss this application.
N. MAJARA
JUDGE
For applicant : Mr. P Ntsene
For respondent: Mr. Peete
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