R v Motsamai (C OF A (CRI) NO. 21/09)

Media Neutral Citation: 
[2010] LSCA 32
Judgment Date: 
22 October, 2010

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IN THE COURT OF APPEAL OF LESOTHO


C OF A (CRI) NO. 21/09


In the matter between:


REX APPELLANT


and


MOTLATSI MOTSAMAI …..................RESPONDENT


CORAM: RAMODIBEDI, P

SMALBERGER, JA

HLAJOANE, JA


HEARD : 8 OCTOBER 2010

DELIVERED : 22 OCTOBER 2010


SUMMARY

Appeal by the Crown against the discharge of the respondent (accused) at the end of the Crown case on charges of bribery and corruption – evidence before court a quo considered – evidence on which a reasonable man might convict – application for discharge should have been refused – appeal upheld – matter remitted to court a quo.


JUDGMENT

SMALBERGER, JA:

[1] This is an appeal by the Crown against the discharge of the respondent (“the accused”) at the end of the Crown’s case on a charge of bribery and two alternative charges of contravening section 22(1) of the Prevention of Corruption and Economic Offences Act 5 of 1999. In acquitting the accused the learned trial judge (Mahase J) purported to act in terms of section 175 (3) of the Criminal Procedure and Evidence Act 7 of 1981 which provides:


If, at the close of the case for the prosecution, the court considers that there is no evidence that the accused committed the offence charged in the charge, or any other offence of which he might be convicted thereon, the court may return a verdict of not guilty.”


[2] The accepted test that had to be applied by the trial judge at the end of the Crown case when the accused’s discharge was sought, was whether there was evidence on which a reasonable court might, as opposed to ought to, convict the accused of the offences with which he was charged, or any competent verdict in respect thereof (REX v MANYELI C of A (CRI) 14 of 2007, para [15]). It is trite law that at that stage of the proceedings issues of credibility do not arise, save perhaps in exceptional circumstances (DIRECTOR of PUBLIC PROSECUTIONS v MACAEFA C of A (CRI) 9 of 2008, para [6]).


[3] I do not propose to undertake a detailed consideration and evaluation of all the Crown evidence. In view of the conclusion to which I have come that the appeal must succeed, which will result in the matter being remitted to the trial court, it would be undesirable to do so lest it be seen as an attempt to influence or pre-empt the ultimate findings of that court.


[4] The evidence of Francina ‘Malisebo Khosi (“PW1”) was to the effect that she had been a co-accused in a case of stock theft with one Johannes Molapo Sello. On one of the remand dates, while she was out on bail, she was approached by the accused, who was the local public prosecutor at the time. He pointed out that the case against her could result in her imprisonment for a long period. He undertook, if she agreed to pay him the sum of M6 000-00, to decline to prosecute her. She intimated that she could not afford that amount of money and it was agreed that the accused would accept M3 500-00. Nothing further happened at that stage.


[5] Sometime later Trooper Lechato (“PW4”) came to her home to inform her that she was required in Hlotse in connection with the charge against her. She told him what had transpired between herself and the accused. She was asked to report to the Hlotse police station on a certain date. On her arrival there a police trap was set up. In the presence of PW4 and certain other police personnel (including policewoman Metsing and Trooper Thamae, who testified as PW2 and PW3 respectively) she telephoned the accused on her mobile phone with the speaker on. She informed him that she had been unable to raise M3 500-00 and only had M2 950-00. He was prepared to accept that with the balance to be paid later. They arranged to meet for the handing over of the money.


[6] PW1 was handed a white envelope containing notes with a face value of M2 950-00 (of which only the top notes were genuine). With envelope in hand she proceeded to the place where she had agreed to meet the accused. She was shadowed, amongst others, by PW2, PW3 and PW4. When the accused arrived she handed over the envelope to him. Her evidence with regard to the events that took place at the police station, her telephone call to the accused (although not the details of her conversation with him) and the handing over of the envelope to the accused is supported in material respects by PW2, PW3 and PW4. They further testified that when the accused became aware, after receiving the envelope, of the presence of police in the vicinity, he threw the envelope away and, as one witness put it “dashed to the opposite direction.” The envelope and notes were subsequently recovered from the spot where they had been discarded.


[7] Mr. Ntśene, for the accused, fairly conceded that the evidence of PW1, if accepted, established all the elements of the offences with which the accused had been charged. As pointed out previously, issues of credibility do not arise at the end of the Crown case, except in exceptional circumstances. Despite being subjected to vigorous cross-examination, PW1’s testimony was clearly not destroyed, nor could it prima facie be said to be “of such poor quality that no reasonable person could possibly accept it” – see S v MPETHA AND OTHERS 1983 (4) SA 262 (C) at 265 E-F. Consequently, at the close of the Crown case there was clearly evidence on which a reasonable court might have convicted the accused, and the application for his discharge should have been refused.


[8] In conclusion I feel called upon to make certain comments with regard to the trial judge’s reasons for granting the discharge of the accused. While legitimate criticism may be directed at aspects of the Crown’s evidence, there is a need to guard against criticism which is ill-conceived or such as would normally carry little weight.


[9] In the course of her judgment the trial judge said, inter alia, the following:


Of significance are also the following:


  • Firstly, there is no iota of evidence to prove that the accused did solicit a bribe of M6,000.00 which was allegedly later reduced to M3 500.00 when PW1 had attended a remand for the second time.


  • Secondly, there is also no iota of evidence tendered by the Crown to prove or suggesting that PW1, on the 16th August, 2007 had a telephone conversation through her cellphone with the accused wherein the issue of her going to hand the bribe money was discussed between them. The cellphone numbers of PW1 and accused still remain a mystery to this court.”


[10] “No iota of evidence” means no evidence at all. If that is so, it would mean that the trial judge simply disregarded the evidence of PW1. There would be no justification for that. If the trial judge intended to convey that there was no corroboration of PW1’s evidence in the respects mentioned (which may have been the case), that would be a matter for consideration, not at the close of the Crown case, but at the conclusion of all the evidence (including that of the accused should he choose to testify) when the trial court will be required to weigh up their respective versions. Should the accused in circumstances such as the present fail to gainsay PW1’s evidence the trial court would be entitled to find that the Crown had proved its case against the accused. (In passing it should be mentioned that the fact that PW1 phoned the accused and spoke to him, as Mr. Ntśene conceded, is not in issue. Telephone records would therefore have served no purpose.)


[11] A further feature of the trial judge’s judgment is that she appears to equate the accused’s version of events as put to the Crown witnesses under cross-examination to evidence by the accused. There is a significant difference in the legal effect of what is put under cross-examination in that respect, as opposed to evidence actually given under oath. Only when the accused has given evidence, and been subjected to cross-examination, can his evidence properly be evaluated and weighed up against that of PW1.


[12] In the result it follows that the court a quo erred in granting the accused’s discharge at the end of the Crown case. The appeal accordingly succeeds and the matter falls to be remitted to the court a quo.


[13] The following order is made:

(1) The appeal is upheld.

(2) The order of the court a quo granting the application for the discharge of the respondent (Motlatsi Motsamai) at the end of the Crown case and returning a verdict of not guilty is set aside and is replaced by the following order:


The application for the discharge of the accused is refused.”


(3) The matter is remitted to the court a quo for the trial to proceed in the ordinary course.




_______________________

J.W. SMALBERGER

JUSTICE OF APPEAL



I agree:

_______________________

M.M. RAMODIBEDI

PRESIDENT OF THE

COURT OF APPEAL



I agree:

_______________________

A.M. HLAJOANE

JUSTICE OF APPEAL



FOR APPELLANT : MR. T. MATOOANE

FOR RESPONDENT : ADV P.S. NTŠENE