CIR\APN\558\93

IN THE
HIGH COURT OF LESOTHO

In the
matter between:-

NAKO
PHORI Applicant

and

THE
DIRECTOR OF PUBLIC PROSECUTIONS Respondent

JUDGEMENT

Delivered
by the Honourable Mr. Justice J.L. Kheola on the 10th day of
November. 1993

This is
an application for bail which is strongly opposed by the respondent.

It was
submitted on behalf of the applicant that respondent has failed to
show that there is a likelihood that the applicant will
abscond.
Furthermore two of the people who are jointly charged with the
applicant have been released on bail. In fact one of them
was
released on bail by me.

I must
point out that in that case of the applicant who was released on bail
by me the facts of that case can be distinguished from
the facts of
the present case. That applicant

2

was not
involved in the actual armed robbery and the shooting to death of the
victim. The evidence by the Crown was to the effect
that the
applicant had allowed the present applicant and another person to
hide themselves in his house and that he had washed
their wounds.

The
applicant in that former application denied that he had known that
the present applicant and that other person had been injured
in an
armed robbery by their victim. He said that they had given him an
unsatisfactory explanation about their injuries.

I came to
the conclusion that at worst that applicant could only be found
guilty of being an accessory after the fact of armed robbery
and
murder. In addition to that I had a doubt whether the Crown had a
strong prime facie case against that applicant.

In the
present case the allegation by the Crown is that the applicant and
that other person (who has now died from the injuries
he sustained
during the robbery) were both at the scene of the armed robbery and
murder and that they did the actual shooting of
their victim. In
self-defence, the victim allegedly shot and injured both of his
assailants. If this allegations in the affidavits
are subsequently
proved at the trial it means that the applicant may face capital
punishment.

3

In Kok v.
R. 1927 N.P.D. 267 at pp 269,270 it was held that

in
considering the question whether it ie likely that the accused will
abscond "the court will not look to the character or
behaviour
of the prisoner at any particular time, but will be guided by the
nature of the crime charged, the severity of the punishment
which may
be imposed and the probability of a conviction.

I have
already pointed out that in the present case the applicant is charged
with murder and armed robbery. The victim of the armed
robbery is the
same person who was unlawfully and intentionally killed in the murder
charge. This seems to suggest that the deceased
was killed during the
course of the armed robbery. I am of the view that the crime is a
very serious one.

If the
applicant is found guilty as charged a sentence of death may be
imposed.

The
probability of a conviction is also very great. It is alleged that
during the course of the robbery the victim managed to shoot
both of
his assailants. It is alleged that from the scene of the crime the
applicant and his colleague were taken to Matsoatlareng
where their
wounds were washed by some people who are now jointly charged with
the present applicant.

4

I have
come to the conclusion that the apprehension by the Crown that it is
likely that the applicant will abscond is not unfounded
in the light
of what I have said above.

The
application for bail is refused.

J.L.
KHEOLA

JUDGE

10th
November, 1993

For
Applicant - Mr. Hlaoli

For
Respondent - Miss Nku.