SUMMARY

Criminal law and procedure - Reservation of law in terms of 15(1) of the Court of Appeal Act No.10 of 1978 – Accused convicted at the end of the trial –Whether the decision of the Court of Appeal in Mohale and Another v Rex C of A (CRI) No 2 of 2005 is correct regard being had to the fact that, it is inconsistent with section 12(4) of the Constitution – Whether the relevant age for consideration for purposes of section 26 (1) of the Children’s Act , in light of section 12(4) of the Constitution is the age of the date of the commission of the crime and not the date of sentence.

Summary

Appellant’s younger brother, accused 2, was charged with the murder of appellant’s wife - Common cause that killing perpetrated only by accused 2 who pleaded guilty at trial - Appellant pleading not guilty but convicted on basis of common purpose and sentenced to 18 years imprisonment;

Appeal against conviction and sentence - Indictment not sufficiently informative that Crown relied for criminal liability on common purpose;

Held: failure of indictment to make any reference to reliance on common purpose by Crown in violation of appellant’s right to a fair trial and prejudicial to him- Conviction quashed and sentence set aside - Director of Public Prosecutions left to decide whether to re-institute prosecution - in event of prosecution de novo trial to be before a different judge.

CRIMINAL LAW: Accused charged with murder- crown witnesses  inconsistent on the critical aspect of the case- accused given the benefit of doubt and acquitted.

Appellants charged with murder in High Court but convicted of assault with intent to cause grievous bodily harm and sentenced each to fifteen years imprisonment;

Appellants making application for bail pending appeal to the high Court - application refused;

Appellants appealing against High Court decision but failing to show material change of circumstances as required by Rule 12(5) of Court of Appeal Rules 2006 or otherwise showing they are entitled to bail on any other basis – Appeal dismissed

Criminal Procedure – Leave to appeal to the Court of Appeal – Appeal already noted – Application for release on bail pending determination of application for leave to appeal.

The right to a fair trial is central in any reputable criminal justice system and recognized in the Constitution of Lesotho. Bias on the part of a court, or a reasonable apprehension of bias, can be fatal for a fair trial. A judicial officer who presided in bail proceedings is not automatically disqualified from presiding in the subsequent criminal trial. However, real caution is called for, because the reasons for the granting or refusal of bail could result in a reasonable apprehension of bias. In this case the appellants failed to show cause for real bias or a reasonable apprehension thereof.

Criminal law – Fraud – elements of - what constitutes misrepresentation.

Money laundering - whether proof of predicate offence required- incidence of burden of proof in money laundering - reverse onus - presumption of innocence- impact of – international approach – evidential burden-whether applicable under laws of Lesotho

Expert opinion evidence- what is- admissibility of - whether relevance necessarily qualifies admission of – approach by the court.

Right to remain silent – impact thereof in finding of fact – circumstantial evidence – whether inference of guilt permissible from silence.

CASE SUMMARY:  Criminal law: murder- common purpose- change of plea of not guilty to murder charge to plea of guilty to lesser charge of assault not charged, in medias res-applicable principles examined, when such may be allowed- accused ultimately found guilty of assault common.

CASE SUMMARY:  Criminal law- accused charged with the crime of murder- pleads private defence after initially being the aggressor- situations where the defence can successfully be raised after the accused was the initial aggressor, articulated- Held in this case though being initially the aggressor, the accused was entitled to defend himself when the deceased exceeded the bounds of self- defence- Accused accordingly acquitted of murder.