Matee v R (CRI/APN 426 of 2000) [2000] LSCA 59 (31 July 2000)

1 CRI/APN/426/2000 IN T HE H I GH C O U RT OF L E S O T HO In the Application of: C H U R C H I LL M A L U N GA M A T EE Applicant vs REX J U D G M E NT Respondent Delivered by the H o n. Mr Justice M L Lehohla on the 31st day of July, 2000 T he applicant h as filed a petition before this C o u rt a c c o m p a n i ed by his verifying affidavit. In paragraph 21 of his petition he prays that he be granted bail on the following conditions : (a) that he attends r e m a n ds (b) that he p a ys M 5 0 0 - 00 cash (c) that he finds surety in the s um of M 3 0 0 0 - 00 (d) that he stands trial. T he petitioner is charged along with o ne Sefafe R a m o s a na as reflected in A n n e x u re " A" in C o u nt I with M u r d er allegedly committed on 19th June 1999; in C o u nt II with attempted murder allegedly committed on 19th June 1999; in C o u nt III with contravention of Section 3(2)(a) A ct N o . 17 of 1 9 66 ( A r ms and A m m u n i t i on Act) allegedly committed on 19th June 1999. In C o u nt I the deceased is one L e b o h a ng Agente while in C o u nt II the complainant is Trooper M a h a s e. This is in case CR 657/1999. In another charge sheet to w h i ch is attached another annexure " A" the petitioner is charged along with Bereng Khitsane with the attempted m u r d er of Seitlheko Selialia allegedly committed on 9th April 1999. This is in case CR 654/99. In the next c h a r ge sheet to w h i ch is attached another A n n e x u re " A" the petitioner is c h a r g ed alone - in C o u nt I with the attempted m u r d er of T r o o p er N y o o ko on 2nd April, 1 9 9 9. in C o u nt II with the attempted m u r d er of T r o o p er M o t he on 2nd April, 1 9 99 - in C o u nt III with the attempted m u r d er of T r o o p er M a p h a t s oe on 2nd April, 1 9 9 9. T h is is in case CR 3 4 9 / 2 0 0 0. In the face of this formidable list of charges Mr Teele for the petitioner anticipates the natural reaction that the list looks disturbing but he is q u i ck to caution that this is so far as looks g o; a nd that looks c an be deceiving. T he petitioner denies the charge involving Selialia in case CR 6 5 4 / 99 a nd says he d o es n ot e v en k n ow the alleged complainant. He explains that he is a victim of a very wild suspicion based on the fact that he h a p p e n ed to h a ve b e en seen drinking with K h i t s a ne w ho h as since b e en admitted to bail. T he c h r o n o l o gy in the instant matter appears m o st likely to t h r ow the light on the dispute b e t w e en the petitioner a nd the C r o wn a nd in the process w o u ld m o st certainly help bring a solution to the problem. T he events concerning Selialia in CR 6 54 are said to h a ve occurred on 9th April, 1999. In CR 3 49 three policemen are complainants. Events here are said to h a ve taken place on 2nd April, 1999. T he m u r d er charge consists of three counts relating to events alleged to h a ve occurred on 19th June, 1999. In paragraph 4 the petitioner avers that he is alleged to h a ve pointed a firearm at the three complainants, discharged a bullet a nd missed the three complainants. In paragraph 5 he is a d a m a nt that he k n o ws nothing of the alleged incidents. In paragraph 8 of his opposing affidavit Sgt M a k o ae admits contents of the petitioners averments in paragraph 4. He a d ds further that there are t wo m o re counts wherein the petitioner is charged with attempted murder. He elaborates that the petitioner fired the shots while resisting arrest. A g a in it is stressed that the complainants w e re police officers w ho w e re shot at while trying to arrest the petitioner. Reference is m a de to CR 654/99. W h i le in paragraph 3 the petitioner says he doesn't k n ow Selialia; in opposition thereto Sgt M a k o ae in paragraph 7 vehemently denies the petitioner's denials a nd goes so far as to assert that the applicant/petitioner k n o ws Selialia a nd furnishes the reason for so saying; n a m e ly that the t wo resided in the s a me N y e n ye village. In reply at paragraph 3 the petitioner reiterates contents of his founding affidavit reflected in paragraph 3 thereof. T he petitioner challenges Sgt M a k o ae by indicating that not e v en the complainant has furnished evidence that he a nd the petitioner k n ow each other. Indeed the statement by Selialia in " C M 2" w h i ch is a m o ng statements by witnesses in police dockets gives credence to the petitioner's assertion in this regard. Mr Teele himself having b e en stung to the quick by the C r o wn C o u n s el M rs 'Matahleho Matiea's unfortunate averments in paragraphs 3 a nd 4 w h i ch s e em to have endorsed Sgt M a k o a e 's misleading evidence filed an affidavit that s e e ms to expose inaccuracies and w r o ng presumptions on w h i ch M rs Matiea's contentions are based. T he simple application of c o m m on sense w o u ld s h ow the baselessness of the C r o w n 's e n d e a v o ur to justify the arrest connected with the counts relating to attempted m u r d er of police officers. T he C r o wn maintains that the arrest w h i ch w as resisted by the applicant w as in pursuance of an offence c o m m i t t ed in CR 654/99. T he natural reaction w o u ld be that the offence in CR 654/99 w as c o m m i t t ed before the o ne w h i ch resulted in attempted m u r d e rs of the police officers. B ut surprise! surprise!! it appears that on 2nd April, 1 9 99 w h en an offence relating to CR 3 4 6 / 2 0 00 took place the petitioner w as being arrested in respect of a crime that h ad not yet b e en c o m m i t t ed i.e. a crime that w as to be c o m m i t t ed on 9th April, 1999. This gives credence to the version by the petitioner that there is a concerted effort to fabricate false evidence against h im and give substance therefore to the petitioner's version that the police told h im that they w o u ld m a ke sure he didn't leave prison. T he Court being alive to the principle that in order to d e ny an applicant bail it should be indicated that he had either previously interfered with witnesses or attempted to a b s c o n d, invited Mr H o e a ne for the C r o wn to say w h e t h er the alleged attempt to resist arrest w o u ld fit the bill in this case despite the a w k w a r d n e ss revealed by evidence. T he learned C r o wn C o u n s el w as u n a b le to g i ve a ny clear a n s w e r; understandably so. I say understandably so b e c a u se no w o r t h w h i le attempt w as m a de to b r e a ch this g a p i ng h o l l ow a nd embarrassingly indefensible v o i d n e ss in the C r o w n 's case. T he C o u rt c a n n ot ignore the fact that this incident h as b e en relied u p on by the C r o wn to strengthen its case against the granting of bail. T h us if it turns out that the c h r o n o l o gy of events tends to leave the C r o wn with an e gg on its face, surely it w o u ld be absurd to h o pe that the C o u rt should close its e y es to the illogicity that is at the very core of the C r o w n 's case. F u r t h e r m o re the C r o wn h as tried to s h ow that there is likelihood of the petitioner a b s c o n d i ng o c c a s i o n ed by multiplicity of serious c r i m es c o m m i t t e d. B ut o ne s u ch multiplicity appears to me to be a single case multiplied by three for reasons of m a k i ng it a p p e ar that m o re crimes w e re c o m m i t t ed than the facts reflect. I fail to see h ow a single shot alleged to h a ve b e en fired by the petitioner c an be said to h a ve a m o u n t ed to attempted m u r d er on e a ch of the three police officers w i t h o ut e v i d e n ce that a shot w as fired at e a ch o ne of t h em or that they w e re positioned in a single line in w h i ch case a shot fired at the first w o u ld apprehensibly strike the n e xt p o l i c e m an in line a nd the next thereafter till it g o es out of steam. Mr Teele t o ok the trouble to attach the Preparatory E x a m i n a t i on record to the instant p r o c e e d i ng to negate the C r o w n 's allegations that the Preparatory E x a m i n a t i on record w o u ld s h ow that the petitioner d r ew a pistol in the m u r d er c h a r g e. Instead of pointing at the e v i d e n ce to substantiate the C r o w n 's assertion the d e p o n e n ts a n n ex the order m a de by the Magistrate c o m m i t t i ng the petitioner to trial in the H i gh C o u r t. H o w e v er the r a n d om statements taken at the Preparatory E x a m i n a t i on s h ow that the d e c e a s ed is the o ne w ho d r ew a g u n. T he C r o wn c a n n ot be a l l o w ed to a d o pt the u n w h o l e s o me tactic of r e n e g i ng f r om its o wn e v i d e n ce at Preparatory E x a m i n a t i on in order to frustrate the petitioner's application for bail. M o r e so b e c a u se at this stage of p r o c e e d i n gs the petitioner is p r e s u m ed innocent until convicted. H is application c an be refused if it c an be s h o wn on p r o p er e v i d e n ce that the interests of justice w o u ld be defeated if he is freed on bail. T he Court has taken into account that the petitioner is a L e s o t ho citizen, has a wife a nd children in this K i n g d om a nd has a fixed place of a b o de a nd w o r k. He is accordingly granted bail as prayed a nd on conditions set out in paragraph 21 of his petition and subject to a further condition that he report at M a p u t s oe Police Station every Saturday b e t w e en 6 a.m. a nd 6 p.m. Finally I m u st thank both C o u n s el for their invaluable sets of heads of arguments filed timeously at very very short notice. J U D GE 31st July, 2 0 00 For Applicant: Mr Teele For Respondent: Mr H o e a ne