CRI/APN/475/06
IN THE HIGH COURT OF LESOTHO
In the matter between:-
‘MAKENG MAKHAILA PETITIONER
and
DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
JUDGMENT
Delivered by the Honourable Madam Justice N. Majara
on the 9th February 2007
This is an application for bail wherein the petitioner is facing charges of armed robbery. The application is opposed on the grounds that:-
The petitioner was arrested while he was running away.
He and his co-perpetrators are involved in other cases of armed robbery which are still pending.
The petitioner is charged with a very serious crime, which appears to have been motivated by greed.
There is a very strong prima facie case against the petitioner in as much as there is a pistol recovered by the police to wit, 9mm pistol and four hundred maloti which was recovered inside the socks that he was wearing.
The seriousness of the charge and the existence of a strong prima facie case are factors that might intrigue applicant to abscond and not stand his trial.
It was the petitioner’s case that he was not involved in the commission of the alleged offence for the reason that nothing that related to the armed robbery was found on him as well as the fact that nobody alleges to have seen him at the scene of the crime. He added that he was arrested after he alighted from a taxi.
The petitioner also contended that the complainants did not identify him during an identification parade that was held in respect of this matter and that on the second parade, the police brought an accomplice instead of the complainants as a result of which the petitioner and his co-accused objected to the holding of the parade.
The petitioner added further that he could not have been involved in the armed robbery inasmuch as two men driving the Nissan vehicle the subject matter of this charge, which they claimed they were selling found him at the Caltex Garage which shows that by that time, the alleged robbery had already taken place. It was also his case that he boarded the said vehicle and when they reached Maryland High School Campus, he was ordered to get off by one Maqelepo and to stay behind and keep an eye on the vehicle. He was later informed by the same Maqelepo that ‘they were running away’.
The petitioner added that they all boarded a taxi bound for Butha-Buthe and that when they reached a place called Liteneng, Maqelepo and the other man told him that they should get off and he refused whereupon the driver of the taxi ordered the petitioner to get off his taxi and the latter complied. Further, that after the other two suggested that they go over the Leribe Mountain and he refused, they left him there where he was eventually found by five policemen who arrested him.
In his opposing affidavit, Detective Trooper Tsita averred that the petitioner was arrested while he was running away with his co-perpetrators and was found hiding in one of the residences in the village. He added especially at paragraph 17, 18 and 19 respectively that:-
“We also have accomplice evidence which would show that they slept at Petitioner’s place with one Tsoeu-Ts’oana Maqelepo who is a partner in the crime. In the morning they went to America Hlotse near Indians’ church where they awaited Chinese to pass.
Ts’oeu-Ts’oana pointed the gun at the Chinese man and told him to get away from the steering wheel. And then the Petitioner drove away the vehicle to Butha-Buthe.
Four Hundred Maluti was found in (sic) the person of the Petitioner in the socks he was wearing.”
On behalf of the petitioner, Mr. Mabudu correctly pointed out that the presumption of innocence should always operate in favour of an accused person. He added that it is the prosecution that has a duty to prove exceptional circumstances that the Court should consider in considering bail and not the other way round.
Counsel for the petitioner added that the primary consideration in an application for bail is whether the interests of justice will be prejudiced if an accused is released on bail. Further, that there is no link between the petitioner and the robbery in that the petitioner was not pointed out as one of the two men who robbed the Chinese.
Mr. Mabudu also submitted that nothing has been alluded to by the respondent to show that the petitioner is likely to evade his trial but for them to rely on ‘similar facts evidence’ that because he fled with the others, he will flee if granted bail.
In is reply, Mr. Sealiete submitted that while it is true that the Courts will always lean in favour of and not against the liberty of the subject, there are exceptions to that rule such as where it is shown that the interests of justice will be prejudiced if an accused is released on bail and that there is a reasonable apprehension that the accused is likely to abscond and avoid standing his trial.
Counsel for respondents made a further submission that the onus of proof rests on the accused to show on a balance of probabilities that the interests of justice will not be prejudiced if the Court exercises its discretion in his favour and grants him bail.
Mr. Sealiete also added that the Criminal Procedure and Evidence (Amendment) Act empowers the Court to detain in custody an accused person who is charged with inter alia, armed robbery unless the accused satisfies the Court that the interests of justice permit his release and that exceptional circumstances exist upon which he can be released on bail.
Counsel submitted that no attempt has been made by the petitioner in casu, to this Court that exceptional circumstances do exist on the basis of which he could be released on bail but that instead, the
investigating officer has shown in his opposing affidavit and the supporting affidavit of Mr. Mahao that there is a well founded fear that if released on bail, the petitioner might abscond and not stand his trial for the reason that he was arrested while running away with his co-perpetrators and that there are other cases of a similar nature pending against him.
I now turn to proceed with the first issue of likelihood to abscond.
Firstly upon my perusal of the Court file, I did not find any replying affidavit which means that the averments of the investigating officer and Mr. Mahao have not been responded to. In the pleadings, the petitioner does not deny any knowledge of at least one of the co-perpetrators,
Maqelepo and the fact that they were together at some stage on the date the alleged incident took place. He also does not deny that he did board the vehicle, the subject matter of the charge he is facing with the said Maqelepo and another.
Secondly, it has been averred by the respondents that the petitioner was arrested whilst he was fleeing, cash amounting to M400.00 was found in his socks and that there are other similar charges he is faced with. Despite such serious averments, the petitioner did not favour the Court with his replying affidavit thus denying me the opportunity to hear what his response would be to such serious allegations. As a result, I have no choice but to proceed on the inherent credibility of respondent’s version on the strength of the case of Plascon-Evan Paints v Van Riebeeck 1984 (3) SA 623 at 635.
It is my opinion that on the basis of the above two-mentioned factors, the Crown has discharged its onus of showing that if released on bail, the petitioner is likely to abscond and not stand his trial. The fact that as he alleges, when the other men found him they were already in possession of the vehicle is immaterial at this stage for the reason that the Court is not determining whether the Crown has discharged its onus of proving the case of armed robbery. Suffice it to say that he stands charged and in my opinion, the crown has successfully shown that he is a high flight risk.
In addition, I do no agree with Mr. Mabudu’s submission that the crown is placing its reliance on similar facts evidence for the reason that the allegations regarding the petitioner’s fleeing are in relation to one and the same case which is the present one and not any other. His previous conduct
insofar as this matter is concerned is certainly relevant for purposes of considering whether if released on bail, the interests of justice will not be prejudice.
On the issue of the onus of proof in bail applications, authorities abound that it rests on an applicant to show on a balance of probabilities that the interests of justice are not likely to be prejudiced if he is released on bail and not vice versa as it was suggested by Counsel for the petitioner. Thus, in the case of S v Hlongwa 1979 (4) SA 112 at 113 Howard J quoted with approval the decision of Harcourt J in S v Smith and another 1969 (4) SA 175 (N) at 177 E-F where it was stated that:-
“The accused bears the onus of proving – on a balance of probabilities - that if bail is granted the interests of justice will
not be prejudiced by his absconding or tampering with State witnesses.”
Likewise in casu, the onus rested on the accused to show on a balance of probabilities that releasing him on bail will not prejudice the ends of justice. It is my view that he failed to discharge this onus, particularly in the light of the reasons I have already shown above.
I now turn to deal with the issue of the requirement on the petitioner to show the existence of exceptional circumstances upon which he might be released on bail per the requirements of Section 109 of the Criminal Procedure and Evidence (Amendment) Act No. 10 of 2002. Although Mr. Mabudu suggested that it is the duty of the crown to show that exceptional circumstances exist on the basis of which an accused should not be granted bail, it is my opinion that the opposite is true on the strength of the Hlongwa’s case (supra) and also because the section requires so.
Whilst the section does not take away the Court’s discretion to grant bail, in the case of offences prescribed therein, it makes it imperative that the accused should show the existence of same for a number of reasons including those I have mentioned in the case of Tanki David Molibeli v DPP CRI/APN/432/2005 (unreported) and the case of Morakabi Phakoe & 3 Others v DPP CRI/APN/109/2006 (unreported).
In casu, the petitioner has not even bothered to meet this requirement not to mention that the Court would still have to determine whether such circumstances do pass the muster exceptional or not. Without further ado, it is my finding that this point was well taken by the respondents.
It is for the above reasons that in my effort to strike a balance between guaranteeing the liberty of the individual and safeguarding that the interests of justice are not prejudiced, I find that the petitioner has failed to discharge his onus by showing on a balance of probabilities that if released on bail, the administration of justice will be safeguarded.
It is for the above reasons that I accordingly dismiss this application.
N. MAJARA
JUDGE
For applicant : Mr. Mabudu
For respondent : Mr. Sealiete
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