R v Moalosi and Another (CRI/APN 155 of 2013) [2014] LSHC 84 (5 February 2014)

IN THE HIGH COURT OF LESOTHO CRI/APN/155/2013 (R/1409/2006) HELD AT MASERU In the matter between: REX And LEBEKO MOALOSI LEOATLE KUENANE Applicant 1st Respondent (Accused1) 2nd Respondent (Accused 2) JUDGEMENT Coram Date of hearing Date of Judgement : : : Hon. Acting Chief Justice T. E. Monapathi 18th December, 2013 5th February, 2014 SUMMARY When in an application for leave to appeal the Crown closed its case and the defence also closed its case but did not put in controverting evidence there are good prospects on appeal. This was more so where exhibits were even found on the scene where Accused were also present. Delay in filing appeal should not be inordinate. Leave was allowed. CITED CASES Rex v Masupha Sole CRI/T/11/1999 S v Beer 1986 (2) ALL E. R 32 at page 327 Lerato Mahanye and Another v REX 1999-2000 LLR-LB 105 Raselebeli Maboee and Another v REX C of A (CRI) No.7 of 2010 REX v Motlatsi Motsamai C of A (CRI) No 21/2009 STATUTES Criminal Procedure and Evidence Act No.9 1981 [1] This is an application for leave to appeal out of time by the Crown. The said application is opposed by the Respondents (Accused) herein, who were accused 1 and 2 respectively in the court a quo in CR/1409/2006. The Respondents were jointly charged with the offence of common theft. It was alleged that: “In or upon or about the 10th August, 2006, and at or near Sehlabeng, Lekhalong in the district of Maseru, the said accused did one, the other or all of them wrongfully, unlawfully and intentionally steal seven (7) litres of petrol and thirty (30) litres of diesel, the property of the Lesotho Government under possession, control and/or custody of the Ministry of Justice Law and Constitutional Affairs and did thereby commit the crime aforesaid.” It is noteworthy that some damning exhibits were found at the home of Accused 1 as explained hereunder. [2] The two Respondents were charged before His Worship Mr. M. Monethi, Senior Resident Magistrate. Due to the lengthy delays in having the case prosecuted, the reasons for which we need not burden this judgement with at this stage, the Crown had to lead the evidence of a single witness. This fell to be treated under the provisions of section 238 (1) of the Criminal Procedure and Evidence Act No.9 1981. [3] At the close of the Crown case, the court a quo held, in dismissing the application for discharge, made on behalf of the then Accused that, the Crown had established a prima facie case which called for the Accused to answer. Then the Respondents herein chose to exercise their constitutional rights by electing not to testify in their defence and so closed their case on that note. In effect the case against Accused went unanswered. In delivering its judgment on the 21st June 2012, the court a quo gave the [4] Accused herein benefit of doubt and acquitted them, as well as making a disposal order of the exhibits in favour of the Accused 1. [5] The Respondents herein deny the reasons advanced by the Crown as to the delay and also contend that the Crown has no prospects of success on appeal. The Crown’s attitudes is that it will not be necessary to deal with the myriad of accusations leveled personally against the Director of Public Prosecutions, Adv. Leaba Thetsane KC as they considered them to be vexatious and of no relevance, in any material way, to the present proceedings. It is a very important fact worth noting that the Accused 1was the owner of [6] the homestead at which plastic cans containing fuel were found on the material day, similarly it is of paramount importance to note that the Accused 1was the official driver of the government vehicle which was found at his house with petrol dripping from the petrol tank aperture according to PW1. [7] Furthermore, both Accussed and a third person against whom charges were later withdrawn, as he was reported to e terminally ill, were also present at the scene at the relevant time. And whereupon they even attempted to flee when they noticed the police presence converging and that the Accused 2 herein furnished an unsatisfactory explanation to the police whilst the Accused 1 elected to give no explanation even up to the point when he was detained and locked up in the police cell. Are these not circumstances which seem to require reasonable explanation if not earlier but later in the trial? It is trite law that in applications of this nature, the onus lies with an Crown, [8] on a preponderance of probabilities, to prove the following factors to the court, to wit reasons for the said delay and of course, the degree of the said belatedness, the existence of prospects of success of the intended appeal the importance of the case to the parties. Indeed, in dealing with an application for bail pending appeal, and in respect of which similar considerations apply, Cullinan A. J. as he then was in the case of Rex v Masupha Sole (CRI/T/11/1999), quoted with approval the following pertinent and instructive dicta in the case of S v Beer 1986 (2) ALL E. R 32 at page 327, wherein it was stated by the presiding judge that: “---------- I am satisfied that for the Applicant to succeed in the application there is an onus upon him to show on a balance of probabilities; that there is no reasonable possibility that he will abscond and avoid his punishment and thus defeat the ends of justice; that there is a reasonable possibility that a sentence other that imprisonment will be imposed upon him, either a fine, the option of a fine, or a wholly suspended sentence (underlined for emphasis).” In the founding affidavit the Director of Public Prosecutions (DPP), a senior [9] and responsible officer of the government, and also charged with onerous duties, has deposed to the fact that at the relevant time, which was shortly after the inauguration of the coalition government in this country, an austerity programme was given to all heads of department to provide performance reports within hundred (100) days. This event the court can take judicial notice of. And that the court can accept that it was this programme which preoccupied the DPP to the extent that he failed to give this particular matter the necessary attention which it deserved. Needless to say this crucial averment was met with no answer but a bare denial by the Accused 1 herein, Accused 2 having filed no affidavit in opposition hereto. [10] The Director of Public Prosecutions has also deposed to the fact that it was only as late as in or around the 22nd February 2013 that he had occasion to discuss the outcome of the said case in CR/1409/2006 with the then prosecuting counsel. He then took the decision to apply, in the interests of justice, for leave to appeal out of time. That decision is according to the law vested in him and certainly, not the prosecuting counsel in this mater or any other. [11] The Director of Public Prosecutions contends that even if learned of the outcome in CR/1409/2006 in or around June 2012, the delay in his reacting thereto cannot, moreso when viewed in the light of the austerity programme alluded to above, by any stretch of imagination be viewed as inordinate. He submitted that in the present case and although the converse was the case in the Sole’s case (supra) there is a reasonable possibility that another court property advised, will alter the verdict given b the court a quo in CR/1409/2006 and return a verdict of guilty. That the facts shown in paragraph 6 above sharply and heavily suggest a Crown’s case if unchallenged and uncontroverted that stood beyond a reasonable doubt. [12] As it is not in dispute in the case that the Accused did not take the witness stand themselves nor call any other witness to rebut the prima facie case established by the Crown. It was consequently submitted that on the basis of abundant authority on the subject, the state case then became conclusive. See Lerato Mahanye and Another v REX 1999-2000 LLR-LB 105 at page 126 (and the authorities cited therein) also Raselebeli Maboee and Another v REX C of A (CRI) No.7 of 2010 (unreported) (and the authorities cited therein). [13] It was further submitted that the court a quo erred and/or misdirected itself in law by regarding the suggestions (in form of questions as if they constitute evidence. They remain only such. See REX v Motlatsi Motsamai C of A (CRI) No 21/2009 (unreported) at pages 9-10 (and the authorities cited therein). It was therefore correctly submitted, that on appeal there will be found that Crown’s case was properly proved. I agreed that reasonable prospects of success in respect have been ably demonstrated. [14] It was submitted that this case is very important to the Crown as it involves an officer of the state, the Accused 2 herein, who was charged with a position of responsibility for state property, and who breached the trust placed upon him by acting in the manner attributed to him and his co-accused in the charge. [15] I agreed that surely the dictates of justice should not be sacrificed on the alter of technicalities on an issue of such importance. Furthermore, the Accused do not stand to suffer any irreparable harm and/or prejudice as they will still be afforded an opportunity to oppose the appeal on the merits in due course. In the circumstances, it was correctly submitted that there is merit in this application and it ought to be granted as prayed. ---------------------------- T. E. MONAPATHI ACTING CHIEF JUSTICE For Crown For Accussed 1 and Accused 2 : : Adv. H. Nathane KC Mr. Ndebele 6