IN THE HIGH COURT OF LESOTHO
In the matter between:
DIRECTOR OF PUBLIC PROSECUTION APPLICANT
(2ND CLASS MAGISTRATE) 1ST RESPONDENT
TEBOHO TSOAKO 2nd RESPONDENT
TOPOLLO LEPHATSOE 3rd RESPONDENT
NTEBOHELENG SEKHATIEA 4th RESPONDENT
Delivered by Honourable Madam Justice M. Mahase
On the 6th April, 2011
Criminal Procedure and Evidence – Charge of fraud – Accomplice witness – Procedure in terms of provisions of Section 236 of Criminal Procedure and Evidence Act – Effect if procedure declaring accomplice not properly followed – Application for review – Rule 50 of the High Court Rules.
The applicant approached this Court seeking a review of the proceedings in the Maseru Magistrates Court (Court a quo).
This application is filed in terms of the provisions of Rule 50 of the Rules of this Court. The applicant is asking this court to grant him orders in the following terms:
1. That the decision of the first respondent in rejecting or disregarding the evidence of an accomplice witness, Nteboheleng Sekhatiea in CR 1407/2009 to reviewed and set aside.
2. That the evidence of an accomplice witness, Nteboheleng Sekhatiea be admitted as forming part of the evidence and record of proceedings.
3. That the first respondent be ordered in terms of the provisions of Rule 50 (1) (b), to dispatch the record of proceedings in CR 1470/2009 to the Registrar of this Court within 14 days (fourteen days) of the receipt of the notice of motion.
4. Granting further and/or alternative relief.
Facts which precipitated into the launching of this application are set out in the parties’ heads of argument filed of record in this court.
They are briefly that the first to the third respondents have been charged in the Maseru subordinate/Magistrates’ Court for having committed the crimes of fraud, alternatively contravention of Section 13(3) (a) and Section 34 of the Prevention of Corruption and Economic Offences Act No. 8 of 2006.
When the charges were put to them, only respondents numbers two and three were asked to plead. They pleaded not guilty to the charges. Respondent number four (Nteboheleng Sekhatiea) was not asked to plead. The Public Prosecutor then informed the Court that Nteboheleng would become an accomplice witness.
Having been so informed, the Court (the first respondent herein) then, and in terms of the provisions of Section 326 of the Criminal and Evidence Act, duly warned and informed the fourth respondent of her rights and what was expected of her.
Subsequently the said accomplice witness was sworn in and she testified in chief. It was at the end of her evidence in chief and when she was supposed to be cross examined by the defence that the defence counsels applied to the Court on behalf of their clients – (respondent numbers two and three) in the instant application that the evidence of the accomplice witness be disregarded and discarded by the Court.
The reason advanced in support of this application being that the procedure for declaring the said Nteboheleng as an accomplice witness has not been followed by the crown. The Court then heard lengthy arguments advanced by counsel for and against this application.
Ultimately, the Learned Magistrate – now first responded granted the application in favour of the defence/respondents number two and three. This, the first respondent did without giving detailed reasons except that the procedure adopted in declaring Nteboheleng an accomplice witness has not been properly followed by the crown.
It is against this ruling that the crown seeks review in as much as it alleges that the ruling in question is highly prejudicial to its (crown’s) case, as it cannot go further to prosecute its case. In other words, the crown’s case has been done a vicious blow and it cannot now proceed with its case against the second and the third respondents.
Put differently, the nett effect of the first respondent’s ruling, is that the Court a quo would expunge and disregard the evidence of an accomplice on the sole basis of the alleged adoption of an improper procedure in declaring the accomplice witness as such.
This Court is in fact called upon on review to make a determination on the following issues: whether
a) The application was moved by the defence at the right time.
b) The crown has or has not followed the correct procedure in declaring an accomplice witness.
c) The evidence of the fourth respondent is admissible or not.
d) If so, is the irregularity is so material as to warrant the rejection, expunging and or the discarding of the accomplice evidence from the record of proceedings.
It has been submitted by the crown that indeed the ruling of the learned Magistrate is highly prejudicial to its (crown) case because the crown cannot go any further with its case. In short, it is the case of the crown that the ruling of the first respondent has done a great blow to its case.
The applicable statutory law with regard to the issue at hand, namely the declaring of an accomplice witness is that which is spelt out in Section 236 (1) of the Criminal Procedure and Evidence Act No.9 of 1981. This is that:
“Whenever the prosecutor at any trial or preparatory examination informs the Court that any person he produces as a witness on behalf of the prosecution has in his opinion, been an accomplice……………. Such person shall, notwithstanding anything to the contrary be compelled to be sworn or to make affirmation as a witness and answer any question the reply to which would tend to incriminate him in respect of such offence”.
Sub section (2) of that section provides that
“If a person referred to in subsection (1) fully answers to the satisfaction of the Court all such lawful questions as may be put to him, he shall, subject to sub-section (3) be discharged from all liability to prosecution for the offence concerned and the Court shall cause the discharge to be entered on the record of proceedings”.
It has been argued on behalf of the second and the third respondents that since the first respondent has declared the fourth respondent as an accomplice witness wrongly and or without having compiled with the procedure, then the evidence of the fourth respondent therein adduced is inadmissible and that it should be expunged from the record of proceedings.
It being argued on their behalf that for such evidence to be admissible, the procedure adopted in declaring the fourth respondent an accomplice witness should have been a proper/correct one.
On the other hand, the applicant’s case is that the first respondent acted grossly irregularly by ruling that the evidence of the fourth respondent be set aside as being inadmissible because fourth respondent has wrongly been declared as an accomplice witness.
The further submission made on behalf of the applicant and in support of its application is that the correct interpretation of the provisions of Section 236(2) of the Criminal Procedure and Evidence Act (supra) is that the withdrawal of charges or the discharge can only, in terms of the law, be entered after the witness has given evidence “to the satisfaction of the court” not any time before.
It is noted by this Court that in the instant application, the Learned Magistrate; after being informed by the crown that the crown wishes to call the fourth respondent as an accomplice witness; duly had the said fourth respondent sworn in as an accomplice. Vide page 19 of the record of proceeding where the Learned Magistrate says: “A3 is duly sworn in as an accomplice”. This is a matter of common cause.
The defence lawyers did not raise any objection to A3 (now fourth respondent) being sworn in as an accomplice witness. It was only after the fourth respondent (A3) had testified in her evidence in chief that the defence counsels raised an objection and challenged the correctness of the procedure which was followed in declaring the now fourth respondent an accomplice witness.
It has been submitted on behalf of the respondents (accused in the Court quo) that the proper or correct procedure in this regard is that:
- It is only by terminating his (accused’s) status as an accused in the same proceedings as a co-accused that he/she can become a witness for the prosecution against his former co-accused.
- Such a change of status can be achieved in the following ways:-
a) If the charge against such an accused is withdrawn.
b) If the accused is found not guilty and is discharged.
c) If the accused pleads guilty and the trial of the accused are separated.
d) If the trials of the accused and his co-accused are separated for another valid reason.
Vide: Shwikkard P.J. and Van Der Merwe S.E.: Principles of evidence at page 396.
See also Shamwana and Seven Others v. People (S.C.Z. Judgment No. 12 of 1985 (1985) ZMSC9; (1985) Z.R. 41 (S.C) 2 April 1985, where it was held that where it is proposed to call an accomplice for the crown, it is practice to:
i) Omit him from the indictment or
ii) Take his plea of guilty on arraignment (Winsor V.R) or during the trial, if he withdraws his plea of not guilty (R. v. Tomet) or by calling him either.
iii) To offer no evidence and permit his acquitted (R.V. Owen)
iv) Enter a nolle prosequi (R.V. Feargus O’connor)
This case was cited with approval in the leading case of R. v Pipe 1967 (51) Criminal Appeal reports of England.
In brief the respondents’ argument is that since the crown has not removed the fourth respondent from the charge sheet in any of the manner alluded to above in the cases and in accordance with the principles of law as enunciated in the authorities and authors herein relied upon by respondents; then the fourth respondent cannot give evidence against her co-accused as an accomplice witness.
Reliance in support of this contention was further placed on the book by the authors; Hoffman and Zeffert: the South African law of Evidence – 4th Edition page 487 where it is pointed out that:
“Generally speaking an irregularity or illegality in the proceedings at a criminal trial occurs whenever there is departure from those formalities, rule and principles of procedure with which the law requires such a trial to be initiated or conducted…”
It is trite that as a general rule an accused person is not a competent witness for the prosecution against a co-accused vide Hoffman & Zeffertt (supra) page 381.
This therefore means that, where as in the instant case, the crown wishes to declare someone an accomplice witness, it should first have among others, terminated his status as an accused. The fact that she was declared an accomplice witness while she is still a co-accused is being irregular and uprocedural – compare with case of Ntaote v. Director Public Prosecutions CRI/515/2007, where the crown had the charges against a co-accused duly withdrawn before accused was tendered as an accomplice witness for the crown. This, it has been submitted, on behalf of the respondents as being the one and only procedure which the crown should have adopted before declaring and calling the fourth respondent as an accomplice witness to testify against her co-accused.
It has thus been argued on before of the respondents that as a general rule, an accused person is not a competent witness for the prosecution against a co-accused, and further that the testimony of an incompetent witness is inadmissible. This, in a nutshell, is the only ground upon which the respondents challenge the declaration of the fourth respondent as an accomplice witness. The respondents have on the basis of the alleged irregularity, asked this Court to declare as inadmissible the evidence of the fourth respondent.
It is not the respondents’ argument that they will and or that they are prejudiced in anyway by the declaration of fourth respondent and the admission of her evidence against them as an accomplice. I note also that it is not their argument that aside from being prejudiced by such evidence, they are also being denied a fair trial if the evidence the fourth respondent is allowed to stand following the alleged unprocedural declaration of her as being an accomplice witness.
In short, the issue of prejudice and unfairness likely to be occasioned by the respondents due to the declaration of the fourth respondent as an accomplice while she still remains a co-accused has not at all been raised nor canvassed on behalf of the respondents.
In addition, there is nowhere where the respondents argue or demonstrate that they will not only be prejudiced, but that they will be embarrassed in their defence if the testimony of the fourth respondent is allowed to stand in the circumstances where they allege that she has been irregularly declared an accomplice.
The respondents have waited to raise their objection in this regard not only until after the fourth respondent had duly been declared and sworn as an accomplice witness for the crown. They raised their objection after the said accomplice witness had testified in chief, and having been duly sworn in as such.
No reasons have been advanced on behalf of the respondents why they waited until after the fourth respondent had completed her evidence in chief and before cross examination to raise this objection.
It has been argued on behalf of the applicant that, what the Learned Magistrate did in suddenly declaring that the procedure for declaring the fourth respondent as an accomplice has not been followed, after she (the Learned Magistrate) had sworn the fourth respondent as such and after she had heard her evidence in chief as an accomplice is:
- Tantamount to the first respondent (the Court a quo) having reviewed its own decision.
- Devoid of any authority and logic.
That the Court a quo has prematurely ruled that the evidence of the fourth respondent be disregarded because the crown has not properly followed the procedure for declaring the fourth respondent as an accomplice.
It is being argued in this regard and in support of the applicant’s case that the provisions of Section 236 (2) are clear to the effect that
“ if a person referred to in sub-sec (1) fully answers the questions to the satisfaction of the Court, all such lawful questions as may be put to him, subject to sub-sec (3), he shall be discharged from all liability to prosecution”.
Thus, so it was argued on behalf of the crown, that the withdrawal of charges or the discharge can only, in terms of this law, be entered after the witness or has given evidence to the satisfaction of the court not anytime before. (My underlining)
It was further argued on behalf of the applicant that in determining whether a person is an accomplice of another, it is the substance of the matter, not procedure, which must be taken into account vide Matsosa Makara v. Rex 1974 – 75 LLR 373 at 378.
The applicant in effect argues that the issue herein raised by the respondents and the Learned Magistrate’s ruling on that issue are premature. That the respondents should have waited until after the fourth respondent has been cross examined before a ruling is to the adminissibility or not of her testimony as made. That it was then at that stage that the court should have invoked the provisions of Section 236 of the Criminal Procedure Evidence Act (supra). See also applicant’s heads of argument paragraphs 8 up to 9.
The respondents’ case, on the other hand is that, in the circumstances of this case, the Court a quo has rightfully acted by disregarding and expunging from its record or by ignoring the testimony of the fourth respondent at that stage of the proceedings, because the fourth respondent was not a competent witness.
There is no doubt in the mind of this Court that, actually that decision of the Learned Magistrate has dealt a severe blow to the case of the crown. It is the crown which has indeed been prejudiced by such a ruling. This is unchallenged. This brings me to the next issue regarding the citation of 1st respondent herein.
The applicant’s complaint arises from proceedings wherein the first respondent was performing her official duties. It is however noted that she has been cited by her actual names. This is wrong and such practice is discouraged.
Several warnings by this court against this kind of procedure seem to have been ignored. The fact that the respondents have not raised this issue does not and should not be interpreted as correcting that anomaly.
It must not be taken or assumed that this Court places much on this issue. This is just a warning that such practice is not encouraged. It has no bearing on the final decision which this Court with make in the instant application.
Now coming back to the issues raised herein which this Court has to determine. It is trite that the Director of Public Prosecutions, being a litis dominis in criminal cases is the only person who has a prerogative to convert an accused person into an accomplice. This is a right he has and enjoys independently.
It therefore follows that for anyone to want to challenge the decision of the Director of Public prosecutions in this regard, one must furnish, to the Court before which an application is made; cogent reasons in support of such an application.
In the instant case and before the Court a quo, the only reason why the defence/respondents objected to the procedure adopted in declaring the fourth respondent as an accomplice, is that the procedure therein adopted was irregular merely because the crown had not omitted the fourth respondent from the indictment/charge sheet before her having been so declared as such, and after she had testified in chief; but before she was cross examined.
It is the considered view of this Court that this is highly prejudicial to the crown, regard being had to the fact that such an objection was raised only after the fourth respondent (A3 in the Court quo) has been sworn in as an accomplice and after her rights in this regard were explained to her. Not why that, the fourth respondent had testified in chief as an accomplice witness.
In other words, the defence waited and/or refrained from exercising its rights of raising an objection until after the accomplice had testified in chief. Worst still, such an objection was made or raised from the bar without the defence having filed a formal, substantive application informing the crown of its intentions to object to the declaration of the fourth respondent as an accomplice.
The crown had therefore not been afforded sufficient time and opportunity to respond to that application. It was taken by surprise. It is trite that no party to any proceeding should be allowed to ambush another party by springing up surprise application.
Regrettably, the Learned Magistrate also made an impromptu decision, unsupported by any authority. The effect of that decision being to disregard and to expunge from the record of proceedings the evidence of the fourth respondent much to the prejudice of the crown.
Now, one wonders if the alleged irregularity is of such a nature that the respondents/accused could say they would be prejudiced in their defence. It has already been indicated above that none of the respondents have alleged that they are or that they will be prejudiced in their defence were the evidence of the accomplice; the fourth respondent allowed to stand.
Does it, in all fairness necessarily follow that the alleged irregularity is of such a nature that it calls for the total disregard and for the expunging of her whole evidence from the court record? I think not.
The fact that the respondents waited until after the accomplice herein was sworn in and had completed her evidence in chief when suddenly this objection was raised on their behalf and without any notice nor indication that such an objection would be raised at that belated stage of the proceedings, amounts to taking the crown by surprise. No reasons have been advanced by or on behalf of the respondents why such an objection was not raised before the fourth respondent testified in chief, after being duly sworn in as an accomplice. Neither are any reasons advanced as to why such an objection was not raised before the fourth respondent completed her evidence in chief.
It is highly important that such reasons among others, should have been furnished, moreso because the public prosecutor had publicity informed the court as well as the defence that it intended to have fourth respondent declared an accomplice, at the commencement of the trial. All parties were already aware at that time that the fourth respondent was a co-accused in this trial.
There are many important factors which come in to play and which should always be carefully considered and weight before a trier of fact exercises his/her discretion whether or not to discard, disregard and expunge from the record of proceedings the evidence of any witness in a serious criminal case such as the present one.
Such considerations and factors include, but are not limited to
- Public interest
- The nature and seriousness of the offence
In the instant case, - CR 470/2009 (Maseru Magistrates’ Court) the charges against the respondents are fraud, alternatively theft common in which the Government of Lesotho has through fraudulent means, been allegedly induced to actually pay the sum of eighty eight thousand (M88,000.00) Maloti to its loss and prejudice.
It need hardly be indicated that it is in the public interest that suspected criminal should be brought to justice; and the more serious the crimes, the greater is the need for justice to be seen to be done.
This Court has had an opportunity to read all the cases which have been cited herein in support and against the instant application. (I am most indebted to all counsel in this regard) but it has not been successfully persuaded that the decision of the Court a quo is on all fours supported by the principles of law therein stated generally.
It is the considered view of this court that in the absence of any alleged prejudice (actual or perceived); and that regard being had to the circumstances of this case, it is the substance of the matter, not procedure, which must be taken into account vide Matsosa Makara v. Rex 1974-75 L.L.R. 373 at 378, in which the Court had this to say:-
“In determining, then, whether a person was an accomplice of another, it is the substance of the matter, not procedure, which must be taken into account”.
This court has accordingly come to the conclusion that it is only after the cross examination of the accomplice that the Court a quo should have properly made or adjudged on the adminissibility or not, of the accomplice evidence and thereby giving full, correct and proper interpretation of the provisions of Section 236 (1) and (2) of the Criminal Procedure and Evidence Act (supra).
Indeed, one may pause to comment that failure by the Court a quo to allow the defence to cross examine the fourth respondent (accomplice) at that stage of the proceedings, has resulted in an absurd situation where criminal proceedings of such a serious nature had to be temporary stopped midair.
This practice whereby criminal proceedings are stopped prematurely; so to speak is highly discouraged by this Court; such a situation should be avoided where possible. In the premises, the decision of the Court a quo to disregard the evidence of the fourth respondent prematurely, is set aside on review.
It is accordingly ordered that the evidence of an accomplice, the fourth respondent (Nteboheleng Sekhatiea) be and should form part of the evidence and record of proceedings.
M. Mahase (Mrs.)
For Applicant: Mr. S.A. Seema
For 1st Respondent: No appearance
For 2nd Respondent: Mr. T. Mosotho
For 3rd Respondent: Mr. Motsoari
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