Ramorobi v R (CRI/A 1 of 90) [1990] LSCA 67 (30 March 1990)

C R I / A / 1 / 90 IN T HE H I GH COURT OF LESOTHO In t he Appeal of : MABULA RAMOROBI A p p e l l a nt v R EX Respondent J U D G M E NT Delivered by t he H o n. M r. Justice B. K. Molai on t he 30th d ay of M a r c h, 1990 On 18th September, 1989 t he appellant appeared before a Subordinate Court and w as convicted of assault with intent to do grievous bodily h a r m, on t he allegations that on or about 19th A u g u s t, 1989 and at or n e ar ha M o q a t h i n y a ne in t he d i s t r i ct of Leribe he had u n l a w f u l ly and intentionally assaulted Thabo Letsela by hitting him on t he head a nd body w i th a stick a nd iron rod. A sentence of five (5) years imprisonment w as imposed. The appeal is against both t he conviction and sentence on a long list of grounds which m a y, h o w e v e r, be summed up in t h at t he c o n v i c t i on was bad in law and t he sentence of five (5) years imprisonment too h a r s h. It is significant to o b s e r ve t h at although t he appellant is recorded as having said he pleaded guilty to t he c h a r ge t he record of proceedings makes no m e n t i on that t he c h a r ge w as e v er read or explained to t he appellant. Indeed, o ne of t he appellant's grounds of appeal is t h at t he c h a r ge w as n e v er explained to him. I h a ve also 2/ read through -2- read through t he record of proceedings and found that nowhere did the trial m a g i s t r a te w r i te t h at he had read or explained t he charge to t he appellant w ho was unrepresented in this case. The requirement that the trial m a g i s t r a te must read t he charge to t he person w ho is charged before him i s, in my view, clearly layed down in section 123 (2) of t he Criminal Procedure and Evidence A c t, 1981 which r e a ds as f o l l o w s: " 1 2 3 ( 2) At t he trial t he c h a r ge shall be read out to the person charged, who shall be called upon to plead t h e r e t o, and his plea shall be recorded t h e r e o n ." (My u n d e r l i n i n g) Section 150 of the Criminal Procedure and Evidence A c t, supra, also p r o v i d e s, in part : "150. Subject to section 313 t he accused, upon t he day appointed for his trial or sentence u p on any c h a r ge - ( a) (b) ......... .. ( c) shall be informed in o p en c o u rt of t he o f f e n ce w i th which he is charged as set forth in t he charge " (My u n d e r l i n i n g s) The w o r ds I h a ve underscored in t he a b o ve cited s e c t i o ns of the Criminal Procedure and Evidence A c t, 1981 fortify my view that it is imperative for t he trial m a g i s t r a te to read and explain t he charge to t he person w ho appears before him charged with an o f f e n c e. There is y et another difficulty in the record of proceedings of this a p p e a l. It appears f r om t he record t h at a f t er t he appellant 3/ had pleaded -3- had pleaded guilty to the c h a r ge t he public p r o s e c u t or accepted t he plea and outlined t he facts he had in his p o s s e s s i o n. There i s, h o w e v e r, no indication in t he record of proceedings t h at t he a p p e l l a nt admitted as c o r r e ct the facts o u t l i n ed by t he public prosecutor. If t he a p p e l l a nt w e re to be convicted on t he facts o u t l i n ed by t he p u b l ic p r o s e c u t or .it was essential to show t h at he had accepted t h em as correct - vide Criminal Procedure and Evidence A c t, 1981 of which S.240 provides in p a r t: "240(1) If a person charged with any o f f e n ce before any court pleads guilty to t h at o f f e n ce or to an o f f e n ce of which he might be found guilty on that c h a r g e, and the p r o s e c u t or a c c e p ts that plea the court may - (b) if it is a subordinate c o u r t, and the p r o s e c u t or states the facts disclosed by t he e v i d e n ce in his p o s s e s s i o n, t he court s h a l l, a f t er r e c o r- ding such f a c t s, ask the person w h e t h er he admits them, and if he d o e s, bring in a verdict w i t h o ut hearing a ny e v i d e n c e ." (My u n d e r l i n i n g) It is to be observed t h at the notice of appeal bears the rubber stamp impression of the Leribe M a g i s t r a te court indicating t h at it w as filed with the clerk of the court on 27th S e p t e m b e r, 1989. Rule 1(3) of t he Subordinate Court Rules embodied under Order No. XXXV of High Commissioner's Notice 111 of 1943 at page 661 et seq. of Vol.1 of t he Laws of Basutoland (1980 e d .) clearly p r o v i d e s: "Upon an appeal being noted t he Judicial Officer shall w i t h in s e v en days deliver to the clerk of 4/ t he court -4- the c o u rt a s t a t e m e nt in writing showing (a) t he facts he found to be proved; (b) t he g r o u n ds upon w h i ch he arrived at any finding of fact specified in t he a p p e l l a n t 's statement as appealed a g a i n s t; and (c) his reasons for any ruling of law or as to t he a d m i s s i on or rejection of e v i d e n ce so specified as appealed a g a i n s t. In t he present case the trial magistrate h a s, contrary to the p r o v i s i o ns of t he above cited R u l e, chosen to submit no written reasons for judgment at a l l. There i s, t h e r e f o r e, nothing to g a i n- say t he appellant's ground of appeal that the c h a r ge w as never read or e x p l a i n ed to him. Indeed, as it has already been p o i n t ed out e a r l i er there is nothing in the record of p r o c e e d i n gs to indicate that before t he trial m a g i s t r a te returned a verdict of g u i l t y, the a p p e l l a nt had a d m i t t e d, as c o r r e c t, the f a c ts t h at w e re o u t l i n ed by the public p r o s e c u t o r. In my view, t he "cumulative e f f e ct of all these o m i s s i o ns is to c o n s t i t u te a serious irregularity resulting in a m i s c a r r i a ge of j u s t i c e. In t he c i r c u m s t a n c e s, I h a ve no a l t e r n a t i ve but to come to the c o n c l u s i on t h at t he proceedings o u g ht to be set a s i de and an o r d er m a de that t he trial starts de n o vo b e f o re a d i f f e r e nt m a g i s t r a t e. I accordingly o r d e r. The appeal d e p o s it is to be refunded to t he a p p e l l a n t. For Appellant For Respondant : Ramodibeli : Miss Nku.. B. K. Molai JUDGE 30th M a r c h, 1990.