In the matter between:
and
DIRECTOR OF PUBLIC PROSECUTIONS Respondent
This is an application for bail pending appeal. At the trial stage there were three accused, but whilst the trial was pending one of the three accused passed away, so that the trial continued against only two accused. The two were charged with the crime of murder and were thus convicted of same and sentenced to six years imprisonment each.
In his application for bail applicant has shown that he feels that he has prospects of success on appeal as the Court convicted him despite the fact that there has been no evidence showing that he particiapted in the assault of the deceased.
But looking at the evidence of most of the crown witnesses it will be relalized that they have implicated the applicant, P.W.1 had shown that the three accused surrendered themselves to him. He also said the explanation about the deceased was given to him by all the three accused admitting to have assaulted the deceased. They only told him that when they left the scene they were not aware that deceased was already dead.
P.W.3 though had not specifically said she saw all the accused assaulting the deceased but had said she had asked the three accused if they were not aware that they were going to kill the deceased. She said even as she left the scene to go and report to deceased’s mother she looked back and saw that the assault was continuing though she said she could not see as to who between the three accused was delivering the blows. She said the people who were around were just standing there without any intervention.
When it was suggested to her that accused were going to say they were not at the scene, P.W.3 said it would not be true as she saw them assaulting the deceased without making any exception. She heard accused shouting from a distance that they had killed him and were going to report themselves to Mabote Police.
P.W.4 though had arrived after the deceased had already been assaulted said, accused 1 and 3 claimed that they had killed the deceased and that they were going to report themselves.
Same with P.W.5 who heard both accused 1 and 3 talking in terms that they have killed the deceased and were asking the crowd to report to the Police when they visited the scene that they (accused) have already gone to surrender themselves and indeed they surrendered themselves to P.W.1.
P.W.6 also had said what was said by P.W.3 that people who were around were just standing there doing nothing. She had said she had seen accused 2 and 3 assaulting the deceased, but when it was suggested to her that other people joined the assault she said, it was only the three accused.
The above summary of the evidence by the crown witness has been recited for purposes of showing that it could not be true that the applicant had not been implicated by the crown witnesses at the trial.
Again applicant has shown that as P.W.3 said in evidence that they met some 5 paces from the scene and said to the witness that things had gone bad, she said if he had been asked to explain what he meant by things had gone bad was going to tell the Court that he was saying things had taken a different turn from what he had considered to be their mission, which turn of events he did not want to associate himself with. Hence why he was some paces away. But evidence has shown that that could not be true as he was seen assaulting the deceased. If he did not want what other accused were doing he could have stopped them or asked for assistance from the crowd to intervene.
Applicant seems to have relied in his argument only on common purpose. I have already shown above that evidence has shown his participation in the assaults.
It is true that the drum ring alleged to have been used in the assault was never exhibited before Court, but that would not mean that the offence was not committed. Accused may have not been armed with any weapon but were seen assaulting the deceased with fists and kicking him even after he had fallen on the ground.
Applicant referred to R v Bloom 1939 AD 188 at 202 & 203 on the inference to be drawn on what was said accused uttered, that they had killed the deceased and were going to report or surrender themselves.
Watermeyer J.A in Bloom established the following, that;
“The inference sought to be drawn must be consistent with all the proved facts. If it is not, then the inference cannot be drawn.”
Evidence has revealed that the three accused had said had killed the deceased and were going to surrender or report themselves. P.W.1 has given evidence to say they indeed came and surrendered themselves and told him about their participation in assaulting the decease hence why a charge of murder was preferred against them. The inference was thus consistent with the proved facts.
For the reasons given the Court finds that applicant has no prospects of success on appeal. Following the principles guiding the Court in an application of this nature, in Serobanyane and Another v Director of Public Prosecutions 2005 – 2005 LAC 225 at 231-32 which say;
“It is generally desirable and in the interest of sound and effective administration of justice that a convicted person, who is presumed to have had a fair trial, should be required to commence serving his sentence as soon as possible.”
The application for bail pending appeal is refused.
A. M. HLAJOANE
JUDGE
For Applicant: Mr Thulo
For Respondent: Ms Motinyane
