In the matter between:
and
DIRECTOR OF PUBLIC PROSECUTIONS Respondent
This is an application for bail pending trial. The applicaion is opposed and the necessary affidavits have been filed. Applicant has shown in his founding papers that he was arrested on the 7th March 2011 whilst he was on his way with a friend to Leribe. He only got a lift to Leribe whilst in actual fact he was proceeding to Letseng la Draai Diamond mine in search of employment. There were also some two other men in their company.
According to the applicant they were all arrested when they got to Hlotse where the police had mounted a road block. He said they were suspected that they were about to commit a crime or that they committed some crimes some time ago. At the Hlotse charge office applicant said he was confronted with one suspected that applicant had formed a robbery group with him and other suspects.
Applicant said he had been tossed from one charge office to the other between Leribe, Maseru and Mafeteng, and being assaulted in the process. Applicant showed that when he was eventually remanded the Prosecutor told the Court that he ought to have been joined in the case which was already proceeding in Court, so that he was then going to be charged separately as that case was already at an advanced stage. He has attached copy of the charge sheet showing that he was ultimately so charged.
It has been the applicant’s case that his mother had even moved the High Court for habeas corpus which was duly granted by the Court ex parte and even ordered his release but that was never honoured. I will come to the habeas corpus application later.
Applicant said when he was so arrested the police did not have a warrant for this arrest, and that though arrested and detained from the 7th March to 22nd March 2011 no application for further detention had been applied for.
The respondent has alleged in the papers that applicant has propensity of committing the same crime. He relied on some similar cases mentioned by their case numbers where accused is still involved. But the applicant challenged that piece of evidence on the basis that no record of such charges has been attached to the papers. He relied on Morolong v DPP CRI/APN/386/05 (unreported) where Mofolo J (as he then was), observed that:
“Regrettably Tpr Tuoane’s affidavit smacks in many respect of hearsay evidence and I see no reason why investigating officers or crown counsel is unable to obtain evidence from the victims of crime or where necessary, ballistic examiners themselves instead of alluding to their evidence.”
The respondent submitted that he could not have attached copies of the charge sheets because when the present application was brought before Court applicant was only a suspect. The charges were preferred against the applicant after the papers were already filed in this case, thus depriving the respondent of the opportunity of having attached same.
Applicant’s counsel had objected to the response given by the respondent as being tantamount to giving evidence from the bar. After there was argument on both sides on this point the Court ruled in favour of the respondent because as it was the respondent was merely offering an explanation as to why she has not attached copies of the charge sheet.
The respondent’s counsel has expressed her fears for releasing applicant to bail as his co-accused have already absconded in the middle of their trial, but the applicant showed that it would not automatically mean that he would do the same. That respondent failed to substantiate her fears.
Applicant in his founding papers at paragraph 4.3 thereof indicated that when police tossed him from pole to pillar he heard police talkng amongst themselves that he, applicant, had committed various crimes in various districts in the country. Applicant however said that information was never communicated to him. Respondent has shown that applicant was informed as to why he was tossed around like that and what applicant alluded to above confirms that he was aware as to why he was being tossed from pole to pillar.
Again the respondent’s cousnel said that their fear has been that the applicant if released on bail is likely not to stand his trial but to abscond. The information based on the fact that it has not been possible for applicant to have been arrested since last year. Respondent said the case where applicant was suspect even had to proceed in his absence as he could not be found.
Respondent has mentioned two armed robbery cases where applicant is suspect and his co-accused having already been remanded in Court in his absence as efforts to arrest him have yielded no results.
Applicant has shown that he was arrested together with his friends at a road block in Hlotse. That has been confirmed by the respondent who even went further to explain the reason why applicant was arrested in that fashion. Respondent said they had been searching for the whereabouts of the applicant and when all efforts turned out to be unsuccessful, they had circulated a request to all the police stations in the country for assistance with applicant’s arrest upon sight.
The main consideration in determining whether or not to grant an accused person bail is whether or not the accused will stand his trial. Other considerations such as the seriousness of the offence and likelihood of a severe sentence upon conviction and the probability of conviction are but secondary.
My brother Teele A.J. has been quoted in the case of Monare v DPP CRI/APN/170/04 where it was held that;
“Where a syndicate gang commit a robbery (or a heist) the fact that some co-perpetrators are still at large and the money has not been removed, the likelihood of the remaining suspects in custody escaping is not only a mere possiblity but a real one.”
The respondent has shown that applicant ought to have been charged together with his co-accused but because his whereabouts were unknown the case proceeded in his absence. His co-accused were released on bail mid-trial and have since absconded. The fear therefore of applicant too absconding would not be an unfounded one.
Respondent has shown that the investigations have been completed and applicant is left to be tried separately from others. Since the matter is ripe for hearing it is for the prosecution to set the matter down for hearing soonest.
On the question of applicant having been detained for a period beyond 48 hours, the granting of bail would not be a solution. Mofolo J, (as he then was) has been correctly cited where he had said in Kapoko Mohai v DPP CRI/APN/286/06;
“If applicant was detained unlawfully, it is up to him to lodge such an application for his release. Before this Court there is no evidence that he was unlawfully detained and there being no evidence, ... I do not think that the alleged unlawful detention can rank as an exceptional circumstance.”
What the Court meant was that there is a procedure for dealing with unlawful detention, particularly when the suspect is no longer in the hands of the police but already remanded in custody. Granting of bail would not be one such a procedure.
The Court is therefore not going to deal with the unlawful detention and the alleged assaults by police on the applicant as that would be a different case from this one for application for bail.
I had earlier on shown that I was going to deal with the habeas corpus application. I will be able to deal with it because I am the one who gave that order. It must have been an oversight on my part to have granted that order including the immediate release of the suspect before hearing from the other side. It was an order with a final relief yet the other side was not heard. It was a grave misdirection on my part as it ought not to have happened.
The circumstances of this case point to the direction that releasing the applicant to bail would not be in the interest of justice as charges he is faced with are serious and the likelihood of applicant absconding is high. His release will result in the grave miscarriage of justice.
His application for bail thus fails, but because the prosecution has shown that applicant’s cases are ripe for hearing, such cases have to be allocated dates for hearing soonest.
A. M. HLAJOANE
JUDGE
For Applicant: Mr Masiphole
For Respondent: Ms Ranthithi
