R v Adil Osman and Another (CRI/APN 530 of 2012) [2012] LSHC 93 (7 November 2012)

IN THE HIGH COURT OF LESOTHO HELD AT MASERU In the matter between:- REX AND ADIL OSMAN MOHAMMED OSMAN CRI/APN/530/2012 CRI/T/69/2011 CROWN 1ST ACCUSED 2ND ACCUSED RULING Coram Date of hearing Date of Ruling : Hon. Mahase J. : Various dates : November, 2012 Summary Criminal Procedure – Accused persons charged with having committed 25 counts of fraud – Urgent application filed on behalf of accused in terms of the provisions of section 157 of the Criminal Procedure and Evidence Act No. 9 of 1981. ANNOTATIONS CITED CASES: STATUTES BOOKS [1] The accused have been indicated before this Court on twenty five (25) charges of fraud. Particulars to save are clearly spelt out in the preamble to the indictment. [2] The accused first pleaded to these counts before this court on the 4th September 2012. This was after several postponements had been granted at the instance of the accused. [3] In fact the long history of this case from its very inception has been clearly and briefly captured by both counsel in their respective papers filed of record in support of and against the charges. I need not repeat same. Same are incorporated herein. [4] Suffice it to mention that the accused have since filed an application in which they request the crown to furnish them with further particulars to the charges. [5] This application was filed on the 11th September when ultimately the accused had secured the services of two lawyers to defend them. However, the accused had already pleaded not guilty to all charges when the charges were read to them on the 4th September 2012. On that day, the crown subsequently let the evidence of PW1 which continued until the morning of the 6th September 2012. Adv. Hlalele was then appearing before court on behalf of the accused. [6] When the court next resumed on the 11th September 2012, Mr. Rashid Patel also appeared as an additional legal team member on behalf of the accused. That was when the accused moved before this court the application for a request of further particulars to these charges. [7] The application is being opposed by the crown. Its argument against the granting of the said application is that this application is an irregular proceeding and on this ground alone it stands to be dismissed. Refer to paragraphs 1 and 2 of the crown’s heads of argument. [8] In a nutshell, the crown argues that the circumstances in which this application has been brought do not justify the granting of same nor is there anything in the Criminal Procedure and Evidence Act (Act supra) that allows for it. I will deal with this submission in due course. [9] In view of the urgency of this application, which urgency is established on the premise that the trial is already in the process though at its initial stages, I do not intend to deal with and every submission raised by the parties but to the extend that it will be necessary for purposes determination of this application. [10] Firstly, this court notes that in terms of the Criminal Procedure and Evidence Act (supra) provisions of section 157, the court is empowered to order delivery of further particulars. Indeed there is no laid down procedural step as to how this is to be done. [11] However, in the instant application, the defence has prepared and has filed a formal application which has been served upon the respondents. They have also applied for condonation by court of their failure to have requested such particulars before they had pleaded. This they did even though technically and in accordance with the provisions of section 157(1) (supra) permit for that. [12] The crown in opposing this application argues that this court should not entertain it because the application is a civil application brought on notice of motion and as such it ought not to be entertained. With the greatest respect, this misplaced for the simple reason that aside from the provisions of section 157 referred to above, the Act is silent on how the said provisions should be set in motion. [13] The said argument tends to overlook the above fact and also overlooks the fact that in fact, this court could not meru moto order for the delivery of such particulars without the applicant/accused having motivated such an application, lest the court would be seen to have descended into the arena of the litigants. This is despite the fact that the court may so order if it thinks it fit so to do before or at the trial. Refer to provisions of subsection(1) of this section. [14] The crown does not suggest in which way the accused should have sort further particulars’ other than by approaching the court as did. [15] A proper reading and proper interpretation of the provisions of this section 157 actually empowers or permits the court to so direct that such particular be delivered to the accused, or to his counsel or attorney or agent without charge etc. This the court has authority to direct before or at the trial. Refer to provisions of that section. It is further provided in sub-section 2 how such particulars should be delivered etc. [16] The accused has not filed a different application under a different or another civil application number. He has filed this application within the main trial hence why even the number of this application is CRI/APN/530/2012 with a cross reference number of the main trial, to wit CRI/T/69/2011. [17] The argument that this Court lacks and or has no jurisdiction to entertain this application is without substance. The said section 157 (1) provides in so far as this application is concerned that; and I quote:- “The court may either before or at trial, in any case if it thinks fit, direct particulars to be delivered to the accused of any matter alleged in the charge, and may, if necessary, adjourn the trial for the purpose of the deliveryof the particulars”. (my underlining). [18] The issue whether or not the accused have had their case handled by a number of lawyers who have since withdrawn as their legal representatives and also the issue whether or not they have been provided with copies and a preamble to the charges sometime ago is not and can not be a bar preventing them from their requesting further particulars to the charges. In any case, the trial herein is still at its very initial stages as only one crown witness has testified. The accused have even gone steps further in requesting or in filing a request to that effect in that among others they have - Sort to be granted leave by court to request further particulars. - They have applied for condonation by court of their failure to have requested such particulars before they had pleaded. As has been indicated above, the law that, (in the words of the crown counsel) is Lesotho encompassing regulation in criminal trials is the Criminal Procedure and Evidence Act No. 9 of 1981. - This is the very law whose provisions the accused have invoked in filing this application. - Obviously because of the above, the instant case is distinquisheable from that of Fath and Another v. Minister of Justice of the Kingdome of Lesotho, C. of A. (CIV) No. 10 of 2005 which has be relied upon by the crown. [19] In other words, contrary to what the crown agues at paragraph 2 of its written submissions, this step which the accused gave taken is allowed by or in the provisions of section 157 (1) of the Criminal Procedure and Evidence Act supra. In the circumstances, this court has jurisdiction to entertain this application. [20] It is the considered view of this court that where such a request is made, it should not be unreasonably withheld in the absence of a clear intention by the accused to waive his rights to request for same, as well as in the absence of prejudice to the crown if such application be granted. [21] The crown must indeed show in which respects it stands to be prejudiced in its case against the accused should the court in the exercise of its discretion order that such particulars be delivered. [22] There is nothing in the paper filed of record indicating that:- - The accused were ever informed and advised of their right to request for delivery of further particulars to the indictment. - The accused were aware that they in fact has such a right. - The accused did, before or at the trial or at any stage waive any of their constitutional rights to a fair trial. [23] The waiver of one’s rights especially in a serious matter and of the magnitude of the instant case is a fact which should not be based on speculation. In order to succeed to convince this court that the accused have indeed waived their above-referred to right, it should do so in clear terms. [24] It will indeed be unfair and prejudicial to the accused’s defence should this court act or rely on speculation and unfounded inferences such that merely because the accused’s case was previously handled by counsel not now before court, then the accused had been advised of their rights. [25] None of the previous counsel were actively involved in these proceedings. They simply attended court to postpone the matter. The crown is not each supported by any of the accuseds’ previous counsel to the effect that any of them actually did appraise the accused of their said rights for them to have elected to waive same. [26] This Court is aware and convinced that the accused were not aware of such rights to have waived them. In the circumstances this point is upheld. [27] I now deal with the issue pertaining to the entitlement of the accused to be furnished with the further particulars. Are the accused entitled, as of right to the further particulars? [28] The defence argues that the accused are entitled to same but the crown argues that they are not so entitled to same by the mere asking and that this decision rests in the end with the court. Indeed this is the correct interpretation of the law especially since the provisions of section 157(1) are not mandatory but are permissive. [29] The deciding factor herein will be that the accused must not be prejudiced by the non supply of further particulars. The argument advanced on behalf of the crown to the effect that the charges in the various counts as supplemented by the preamble to the indictment articulates the charges the accused need to answer to is sufficient, is with respect, not the only factor to be taken into account in deciding the application for a request of further particulars. [30] It has already been indicated above that the various previous counsel (not counsel now before court) did not issues of further particulars nor did they delve into this case as they only attended court to ask for a postponed for reasons that they had not been fully briefed. As a result, it cannot be fair to dismiss this application even though they have stated that in effect they only became aware of their said rights to request further particulars on the 7th September 2012 when for the first time they had a thorough consultation with their current counsel. [31] The crown counsel has not disputed the fact that the accused consulted thoroughly for the first time with their current counsel. Neither has the crown denied or challenged the contents or submissions advanced in support of this application as appears in paragraph 2.3 of their founding affidavit. [32] Regard being had to the seriousness and the coupled nature of the charges and related documentation presented as evidence by the crown against the accused, this Court has come to the conclusion that accused are entitled to be furnished with the further particulars which they have requested. Of course the right to request such particulars is not absolute but the legislative provision creating such an avenue (in the form of provisions of section 157 (1) supra) has not been created or invented for no good reason. This has been created so as to give a true and or a meaningful purpose to the motion of a fair trial; that explains why it is provided for such an order to be made before or at the trial. To time limit is sat for so ordering. Of course on case has its perculiar circumstances. [33] This Court is therefore prepared to also condone the filing of this application at this hour or at this stage of the proceedings. As has been indicated above, only one crown witness has testified but she has not yet been cross examined. The crown has not alleged any prejudice on its part if this application be granted. [34] Indeed this Court is of the view that it will not suffer any prejudice should this application be so granted; moreso because the crown will be entitled to recall PW1 if such need arise after further particulars are delivered. [35] The application is accordingly granted as prayed but only in respect of prayers 1, 2 and 3 (a) up to (c) prayers 3 (d|) and (e) are not granted. The court can and will be able to decide on issues raised herein only after crown has closed its case, not at this stage. M. Mahase Judge For Applicants/Accused For Respondents/Crown - - Adv. Rashid Patel with Adv. N. Hlalele Adv. H. H. T Woker S. C