Pelea v Director of Public Prosecutions (CRI/APN 601 of 2000) [2000] LSCA 123 (25 October 2000)

1 CRI/APN/601/2000 IN T HE H I GH C O U RT OF L E S O T HO In the matter b e t w e e n: T S O T A NG P E L EA A P P L I C A NT and T HE D I R E C T OR OF P U B L IC P R O S E C U T I O NS R E S P O N D E NT J U D G M E NT Delivered by the Honourable M r. Justice T. Monapathi on the 25th day of October 2000 T h is w as an application for bail p e n d i ng appeal. It w as being o p p o s ed by R e s p o n d e n t. Applicant w as convicted of the c r i me of m u r d er by this C o u rt on the 24th J a n u a ry 2 0 00 a nd sentenced to a term of 5 years i m p r i s o n m e n t. He has noted an appeal to C o u rt of A p p e al of Lesotho against this conviction a nd n ow seeks to be released on bail p e n d i ng the hearing of his appeal. Since Applicant's appeal has not b e en enrolled for O c t o b er 2 0 00 sitting of the C o u rt of A p p e al his appeal m ay be heard in the M a r c h / A p r il 2 0 01 sitting of C o u rt of A p p e a l. Applicant further says that d ue to circumstances b e y o nd his control the record of the appeal w as not finished timeously for filing to the C o u rt of A p p e al w h o se sitting w as scheduled for O c t o b er this year. Applicant said to date the record of proceedings to the appeal has not b e en finalized but all the s a me he h ad promised that the appeal w o u ld only c o me in the April 2 0 01 session. He says this delay w as being prejudicial to h im as he w a n t ed to k n ow his fate soonest. Applicant averred that he h ad prospects of success on appeal as it appeared fully in the annexure TP " 1" (Notice of appeal a nd the grounds of appeal). R e g a rd being heard to the circumstances explored in that annexure he respectfully averred that another C o u rt w o u ld c o me to a different conclusion. He craved leave of this C o u rt to incorporate the contents of annexure TP " 1" as if specifically averred therein. T he said notice of appeal as said included grounds of appeal w h i ch abundantly stated issues in s o me four pages m o st of w h i ch questioned the findings of the C o u rt on questions purely of credibility of witnesses. Applicant's Counsel, M r. M p a k a, m a de submissions on the law in matters of bail pending appeal a nd he spoke about the following issues: Firstly that the statutory rights to bail does not apply in cases w h e re an offender w ho has received custodial sentence lodges notice of appeal either against conviction or sentence or both. T h at the decision whether or not to grant bail in such cases is a question for the exercise of judicial discretion by the Court. He referred to the w o rk of C Charterton in B A I L, L AW A ND P R A C T I C E, L o n d o n, Butterworths 1 9 86 p 59 par. 3.17 a nd p 60 thereof. He spoke a b o ut the discretion of the C o u rt as explained in pages 59 a nd 60. He said the principle w as that in considering bail p e n d i ng appeal the C o u rt will naturally take into account the increased risk of a b s c o n d m e nt in view of the fact that the accused has b e en convicted a nd sentenced a nd w as not merely awaiting the o u t c o me of his trial. He referred in that regard to the w o rk of Ferreira C R I M I N AL P R O C E D U RE IN T HE L O W ER C O U R TS (1979) p.216 a nd secondly to B A IL P R A C T I T I O N E R 'S G U I DE by J V an d en Berg Juta & C o. Ltd C a pe T o wn 1986 at p.118. Secondly, Counsel further posed a question as to whether there exists strong a nd cogent reasons a nd if there w as no such reasons bail should not be granted w h en there has already been a conviction. In that regard he referred the C o u rt to the case of N D A BE K H O A R AI v D P P 1993 -1994 L LR a nd LB 1 at p 4. Thirdly that bail should not be granted with regard to sentence merely in the light of mitigation to w h i ch the judicial officer has in his opinion given d ue weight or in regard to conviction on a ground w h e re he considers a chance of a successful appeal is not substantial. This w as about prospects of success. A nd then fourthly, that the length of the period w h i ch might elapse before the hearing of C o u rt of A p p e al is not in itself a g o od g r o u nd for bail. It m ay be o ne factor in the decision whether or not to grant bail but the judicial officer w ho is m i n d ed to take this factor into account m ay find it advisable to contact the Registrar in order that he m ay have an accurate a nd up to date assessment of the likely waiting time. Counsel concluded that regard being h ad to the above it w as submitted with respect that the Applicant h ad m a de out a sufficient case to be granted bail as prayed for in the notice of motion. I then h ad submissions by the Respondent's Counsel M r. L e n o n o. He started by saying of that the attitude of our Courts in applications of this nature has b e en reinstated in a n u m b er of times before in particular he spoke of the case of M A K H O A B E N Y A NE M O T L O U NG A ND O T H E RS v R EX 1974-1975 L LR p.370 at 372(b) w h e re the learned judge w as said to have stated: "Granting of bail pending appeal is not automatic f r om a superior court a nd very strong reasons indeed would be needed to justify a departure from this." This authority w as followed also in the case of M A M A K O AE M O K O K O A NE v D PP C R I / A P N / 9 2 / 9 5. Counsel further submitted that in the case of S T E P H EN M E Y ER v R C R I / A P N / 4 / 77 N o .3 of the 27th J u ne 1977 Cotran CJ, as he then w a s, said: " T he principle under which the Court grants bail pending appeal are well k n o w n. It is not as readily granted as w h en the application is o ne for bail pending trial. To grant it is the exception rather than the rule for it is presumed that an accused having been tried by Court of competent jurisdiction h ad h ad a fair trial a nd ought to start serving his sentence forthwith." W i th regard to this statement that an accused person h ad to start serving his sentence forthwith, I h ad earlier questioned M r. M p a k a, as to w h at the policy of the Court w as to be a nd w h at were the guidelines to the Court in a situation w h e re an accused person is convicted a nd he goes to prison to serve a sentence of imprisonment. A nd then in such circumstances the Court is being asked to release h im pending the hearing of appeal, the risk being abundant that the accused person w o u ld have to go back to prison a nd serve the remainder of the prison sentence. W h at the policy of the Court should be m o re especially on the prejudice to the accused himself a nd prejudice to the administration of justice. I reminded M r. M p a ka that there is a remark about this factor in that w o rk of Chatterton B A I L, L AW A ND P R A C T I CE and I will c o m m e nt about that r e m a rk later in my judgment. M r. L e n o no argued further to say that in R v F O U RE 1948(3) SA 5 08 at 5 49 which w as quoted with approval in the case of M O T L O U NG (supra) where it w as said: "It seems to me especially in the case of a serious crime that a convicted person should not be admitted to bail. He has been convicted and his sentence is in force and the fact that he has noted an appeal or had a point of law reserved does not entitle him to ask that the sentence be stet pending the decision of his appeal." In similar judicial thinking in the case of M I C H A EL M A S E KO v R CRI/A/58/87 Sir Peter Allen J held that when a fairly long sentence, and in that case appeal was against a two year sentence, accused's bail should be refused. The Crown accordingly in the light of the last authority submitted that the doctrine of stare decisis dictated that this application must fail. It meant that judicial precedent indicated that in circumstances such as this one bail should not be allowed. I accepted the Crown's argument that the very anchor of foundation of Applicant's contention seems to be perched on the credibility of Crown witnesses as I have already remarked. Outside that there are no special circumstances which he points out as entitling him to qualify for a departure from the general rule and to be released on bail. The Crown further submitted that the onus lied on the Applicant to show that another Court may reasonably come to a different finding regarding the correctness of his conviction. I was not persuaded by Mr. Mpaka's argument that the question of the proximity of the Accused and the deceased when the fatal shot was fired indicated that there could have been an attack that the Accused warded off in self defence. I indicated to Mr. Mpaka in no uncertain terms that I had found that there had been no attack from the deceased and that I did not believe that there was a knife involved in the attack. I was on the other hand persuaded that more than anything else the Accused seemed to have attacked the deceased during a frenzy of serious provocation from the deceased. This fact of provocation if found as a defence overwhelmingly proved that there w as an excuse of s o me kind in favour of the accused. A nd it w as this very factor of provocation which the Accused insistently denied despite invitation from the Court that facts pointed out to the existence of such provocation. In my mind I felt that had Accused take the chance he could have proved a defence that he acted through provocation, I would have found that he attacked the deceased not in self defence because he w as severely provoked a nd he could accordingly take the opportunity of a defence of provocation. This he resisted despite invitation from the Court. This I say in response to the fact that another Court could find that the Accused w as provoked but still that Court if it finds that there w as a defence it could not m e an that the Accused would completely be acquitted. He could still be convicted of another offence m o re particularly Culpable H o m i c i de as this can be seen clearly from section 3 of the C R I M I N AL L AW H O M I C I DE A M E N D M E NT P R O C L A M A T I ON NO.42 of 1959 section 3 which says that if a person acts in a w ay that causes death in the heat of passion caused by sudden provocation he is guilty of Culpable Homicide only and not guilty of murder. T he conviction would still be o ne that attracts a sentence of imprisonment. T he C r o wn further submitted quite correctly that there was also an onus on other aspect of whether prospects of success existed that another Court m ay reasonably interfere with the sentence imposed. In S v N D L O VU A ND A N O T H ER 1999(2) SA at 645 at 6 5 0E particularly it has been said: " T he first question arising in my view is whether the reasonable possibility exists of avoiding a sentence of imprisonment on appeal. In S v A N D E R S ON (supra) at 343(c) Fleming JP stated the question to be whether the appeal will succeed but on a lessor standard, whether the appeal w as free from predictable failure to avoid imprisonment." ( My underlining) In this regard the Learned Judge referred to two extremes that is one on one h a nd where the appeal w as likely to succeed and on the other hand where the Appellant would have no prospect of avoiding imprisonment and would therefore gain postponement not avoidance. In the latter event Learned Judge in my respectful view correctly held at 432F: "A Court will not allow bail procedures to frustrate punishment procedures which have been duly formalised. See S v H L O N G W A NE 1984(4) SA 7 9T at 102 E-G." This underlines the issue that in applying for bail the m a in ground is that another offence will be substituted, then the question is whether w h en that other crime is substituted Appellant will still be liable to serve a term of imprisonment. If the answer is in the affirmative then there is no value in allowing the Appellant out on bail on that account. On submitting further M r. L e n o no said that in T S I TA v R E G I NA 1959 H C T LR at 2 paragraph C today Elyan AJ said: " Of course the primary consideration in my opinion in an application such as this is always whether there would be on appeal be a reasonable prospect of success. In other words prospects of disturbing the conviction." Even with regard to this consideration of the prospects of disturbing the conviction I go back to say that the grounds of appeal solely speak about matters about the credibility of witnesses. There is nothing by w ay of taking a point or even questioning any issue in a serious w ay other than about the conduct and d e m e a n or of the witness which is primarily a question of credibility. T he aspect of credibility is one which the trial court has the best opportunity of judging at the best of times. T he C r o wn finally submitted that the matter before this Court w as an unprocedural one and it ought to be struck off on that ground. M r. L e n o no cited section 101(3) of the C. P.&E. Act 1981 which expressly provides that: "Every written application for bail shall be in the form of petition." C r o wn Counsel argued to say that in R A T IA v R 1976 L LR 141 at 142 the Court stated that it could condone unprocedural applications only in exceptional circumstances and cast the onus on the Applicant to show such circumstances. T he C r o wn contended that it w as the s a me with the present application that the procedure was w r o ng and no exceptional circumstances were stated for the need to condone the unprocedural application. T he C r o wn then submitted that on the basis of judicial authority referred to above and the special circumstances of the case the onus cast on the Applicant h ad not been discharged should accordingly fail. This Court dealt with an application for bail pending appeal in M O T H I B E LI LETSIE R A M A L U M A NE v D I R E C T OR OF P U B L IC P R O S E C U T I O NS CIV/APN/244/99,16th August, 1999. In that case the Court agreed that based on flawed definition of accessory after the fact the Court on appeal would probably reach a difficult conclusion as to the crime with which the accused was guilty of. It was not that the Accused/Applicant would be acquitted. T he Court found that this could not be a basis for good prospects of success on appeal. T he Court in R A M A L U M A N E 'S case dealt with that issue which I have earlier referred to herein (at page 4) about the broad policy consideration w h en an accused has already served part of his sentence and yet wanted to be allowed out on bail pending appeal. I quoted from page 60 paragraph 3.17 of the said work of Clifford Chatterton in B A I L, L AW A ND P R A C T I CE (supra). I emphasised from that statement that it had to be for exceptional reasons and in the interest of justice that an accused m ay be released on bail. In addition that it w o u ld not be in the interest of just to h a ve " an appellant taken b a ck into custody over w h i ch he h ad b e en on bail." I also referred to R v F O U RE (supra) in relation to the a b o ve consideration a nd to release on bail in serious crimes. See also S v DE A B B R E AU 1980(4) SA 9 4 ( W) at 1 00 at H to note that the : " fundamental principle is in favour of the liberty of the subject a nd that bail should only be refused if there is a real d a n g er that justice will not be done." E v en w h en the probability w o u ld be substitution of a conviction for another or a different sentence it cannot be said that justice will not h a ve b e en d o ne in refusing the appellant bail pending appeal. I found that in the circumstances of the case my discretion w o u ld not allow release of the Applicant on bail h e n ce the application m u st fail. T. M O N A P A T HI J U D GE For the Applicant : M r. M p a ka For the Respondent: M r. Lenono