IN THE HIGH COURT OF LESOTHO
HELD AT MASERU CRI/APN/435/2011
In the matter between:
JAYAKRISHNAN APPUKUTTAN NAIR
Delivered by the Honourable Acting Judge Mr. G.N. Mofolo
On the 27th September, 2011
This is an application for bail pending appeal and appeal which, according to papers before me, has been lodged with the Appeal Court due to be heard at the earliest convenience of that court. It is also understood there is a Cross-Appeal by the Crown.
Both before me and in his Heads of Argument, Dr. Mosito has submitted the petitioner has prospects of success on appeal absence of which, according to him, negativing the grant of bail. He has said the appeal is reasonably arguable and not manifestly doomed to failure nor are the grounds frivolous seeking delay to petitioner’s imprisonment. He is also of the view, in so far as conviction is concerned, the Court of Appeal will come to a different conclusion. The Crown has disagreed saying now that accused convicted presumption of innocence has been removed.
As to application for bail generally and where the Attorney-General opposes it, it does appear before it can be said that there is the likelihood of justice being frustrated through an accused person resorting to the known devise to evade his trial (and in this case his appeal), there should be some evidence or some indication which touches on the applicant personally in regard to such likelihood (and it will be noted in the present application there’s no such evidence touching on the petitioner personally) and because of this the applicant was granted bail in S v Essack 1965 (2) SA 161 (D & CLD) but confined to the magisterial district of Durban and Inanda.
Seems to me though in considering this petition the court is enjoined to confine itself to facts alleged by the petitioner in his affidavit and record of his trial when he was convicted without prejudicing the attitude of the Appellate Division when the matter comes before it for decision. Suffice it to say throughout a trial extending to seven (7) years at no time did the petitioner in anyway prejudice proceedings in his trial even when he took ill from time to time including a time when he was allowed to attend medical treatment outside the jurisdiction of this court.
Although it has been said before granting bail the court must consider whether justice will not be endangered thereby more particularly where there is a reasonable prospect for success, it would seem the court has discretion to grant bail even where the crime is a serious one (R v Mthembu, 1961 (3) SA 471B (D & CLD).
In S v Beer, 1986 (2) SA 307 (SOKPA) Smalberger R quoting from S v Williams 1981 (1) SA 1170 (ZA) had this to say (op 1172 A - 1173 B):
“Different considerations do, of course, arise in granting bail after conviction from those relevant in the granting of bail pending trial. On the authorities that I have been able to find it seems that it is putting it too highly to say that before bail can be granted to an appellant on appeal against conviction there must always be a reasonable prospect of success on appeal. On the other hand even where there is a reasonable prospect of success on appeal bail may be refused in serious cases notwithstanding that there is little danger of an applicant absconding …”
Such cases as R v Milne and Erleigh (4) 1950 (4) SA 601 (W) and R v Mthembu 1961 (3) SA 408 (D) stress the discretion that lies with the Judge indicating that the proper approach should be towards allowing liberty to persons where that can be done without any danger to the administration of justice the Judge going on to say in his view to apply the test properly it is necessary to put in balance both the likelihood of the applicant absconding and the prospect of success since, clearly, the two factors are interconnected because the less likely the prospects of success are, the more inducement there is on the applicant to abscond except as I have said above given the petitioner’s record he is not, in my view, a flight risk.
I have already quoted Milne and Erleigh case above which is authority for the proposition that it is all in the discretion of the Judge whether or not to grant bail stressing the proper approach should be towards allowing liberty of persons where this does not prejudice the administration of justice. In course of his judgment Lucas J had further noted naturally the court believes that its decision is sound much as the Appeal Court might take another view, a possibility that prompted the court to grant bail and the same possibility alluded to by Dr. Mosito prompting this court to allow bail on stiff terms to safeguard interests of justice.
Accordingly, bail is granted on conditions:
1. The petitioner, Mr. Nair’s passport to remain in custody of Director of Corruption and Economic Offences (DCEO).
2. The petitioner Mr. Nair to report at Maseru Charge Office every last day of the month between 6 a.m and 10 p.m.
3. Pay cash bail in the sum of M1,000,000 (One Million) to the Registrar of the High Court.
4. Find two (2) sureties in the sum of M1,500,000 (One Million, Five Hundred Thousand) each.
5. The Attorney-General is given to grant the petitioner Mr. Nair permission to leave Maseru district on business during which time he will be released from the obligation to report at Maseru Charge Office.
6. If, during the period pending the appeal it becomes necessary for Mr. Nair to enter hospital or nursing home, the Police in Maseru Charge Office are to be notified and necessary arrangements to be made about their being able to satisfy themselves that Mr. Nair is in hospital or a nursing home at the time when he does not report.
For the Petitioner : Dr. K.E. Mosito, KC
For the Crown : Mr. G.H. Penzhorn, SC
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