IN THE HIGH COURT OF LESOTHO
In the matter between:
RULING ON AN OBJECTION
Delivered by the Honourable Mr. Justice T. Monapathi on the 24th day of September 2003
The Accused is charged with Treason alternatively Sedition, further alternatively contravening section 7 of Internal Security Act No 24of 1984 on Count 1 and contravening section 183(2) of Criminal Procedure and Evidence Act 1981 on Count 2. Accused in this case took an objection which was not common. Mr Semenya for the Accused made a submission discussed below which the Crown through Mrs Himraj opposed. The objection could still be seen as being in favour of the accomplice witness (PW 3) who was concerned in the objection.
On principle the privilege against self-incrimination extends to every witness,
except an accomplice witness. An accomplice is promised an indemnity (discharge of liability) on condition that he answers to the satisfaction of the Court. Such a promise is empty and valueless and may be prejudicial if an accomplice cannot be competently charged with any of the offences with which the Accused is charged. On principle I agreed.
In the midst of the evidence of PW 3 Hosanna Sako, who had been declared an accomplice and was given a warning in terms of section 236 of the Criminal Procedure and Evidence Act 1981 (CP&E) the defence raised the following objection. Since this witness has already been convicted of Mutiny and he having been a major player in the circumstances he ought not to be warned (as an accomplice) respecting these charges on same facts covered on account of which he would plead autrefois convict. The basis or object of the plea of autrefois convict being to avoid double jeopardy or simply that a convicted person ought not to be punished again on the same or "similar" offence.
4. The primary issue or attack by the defence is that the warning given to the witness as an accomplice is unrealistic in that he may not be charged with Treason because he has been convicted on the same facts in the Mutiny charge against him. That furthermore it makes a lot of difference as to how he will testify when he is labouring under the impression that the liability will not be discharged. The principle contended for is that it is consequently irrelevant if an accomplice
testifies to the satisfaction the Court when in fact he cannot in the end be charged on account of the plea of autrefois convict.
It is a question which the defence has been unable to answer as to how conceptually the witness ought not to testify as an accomplice with regard to the facts to which autrefois convict would stand, and at the same time testify not as an accomplice to charge in which the facts do not coincide with those dealt with under the Mutiny charge, while he is simultaneously on the stand in the same proceedings, in which it is sought to prove the former facts together with the latter facts. How are both situations conceptually divisible even if Sedition for example is a sister charge to Treason under our law?
It was common cause that the Accused was charged with Mutiny in terms of section 48(1) (2) and (3) of the Lesotho Defence Force Act 1996. The main charge being in terms of section 48(1) of the Act and other or alternative charges. On judging from the facts, as it was said in argument, there were no doubt three sets of particulars of the offences which shared the same set of facts.
Section 48 of the above Act is headed "Mutiny". The subsection (3) describes what Mutiny as defined whose aspects are all in the context of the issues of authority, duty, service within the Lesotho Defence Force. This was what the witness was previously convicted on as it became common cause.
The charges in the Mutiny substantially are from the same section. The facts are contained in the "particulars of the offence" which were read by Mrs Himraj and which run up to sixteen (16) paragraphs. This were said to be along the same lines with the other charges in counts 1 and 3. Counsel could not lay her hands on Count 2 but this did not depart from the agreement between Counsel.
Mrs Himraj would submit that the fact in the particulars are completely different from the particulars as found in the Treason charge which relates to primarily to the overthrowing of the government of Lesotho. To that extent she said they were different. The question then is whether any witnesses including the present one may not raise the defence of autrefois convict.
For the defence to succeed the accused has to show that he was previously convicted of the same offence as the one previously charged or which was substantially identical with the one he is required to plead to which an accomplice would be required to plead to. Two cases were cited by the Crown in that regard namely the S v Khoza 1989(3) SA 60(T). The accused therein was found guilty of public violence and thereafter charged with murder arising out of the same incident. The plea of autrefois convict was rejected.
Then secondly was cited the case S v Gabriel 1971 (2) 645. The accused therein
was charged with attempted murder of his wife and was convicted. He was later charged with murder arising out of the same attack after the wife died. The plea was once again rejected. When one is convicted on a light crime, as it was commented in that case, he can later be charged with a more serious one arising out of the same event. (See Voet).
.And finally as it was submitted that the warning given to PW 3 that there are those dangers or repercussions on failing to testify truthfully or to the satisfaction of the Court which will eventuate that is, he shall not be "discharged from the liability to prosecution for the offence concerned" is well placed in the present circumstances and the witness rightly remains to testify as an accomplice witness. It is because there are other charged except Mutiny. See section 236(2) of the C.P.&E. The person is discharged from liability for "the offence concerned".
Mrs Himraj responded further to say that in having to decide whether it is the same offence that is being charged the Court must look at both the facts and the definition of the crime. The test for Mutiny which is a statutory offence which is much narrower than Treason which is a common law offence and much broader. It could be that one is included in the other but not necessarily so because one is a common law offence and it also depends on how the Treason charge has been couched or formulated.
Mrs Himraj conceded however that it is only to the extent that the two charges both spoke about a plan that the similarity ended but the Treason went much further as to the fact that such as overthrowing of Government and lawful authority "to assassinate and take over the Government." Indeed that was the impression I gathered looking at both charges. To recap the context in the Mutiny charge was only extended to the authority of the LESOTHO DEFENCE FORCE (LDF). I agreed that apparently the facts that constitute the Mutiny are only a part of the Treason charge.
I found a good answer to my question as to why now should not autrefois convict apply if the facts in Mutiny charge are also to be found in the Treason. The answer was that the witness was said to be an accomplice to other alternative charges with which the present Accused was charged. So that the warning of an accomplice remain proper and extended even to those alternative charges. It was not as if Treason was the only charge facing the Accused, whose facts necessarily referred to the Treason charge and to no other charges. There were other charges such as sedition and two others statutory ones which could coincide on the facts found in the Treason charge as against the restricted and narrow facts supporting the mutiny charge which is primarily directed at the military authority as aforesaid. The Accused was significantly charged with other counts.
Adv. Semenya answered by saying that the Court need not rely on labels and say
for example that mutiny by definition would a different offence. He said it was not. See S v Davidson 1964(1) SA 192(T) and R v Long 1958(1) SA 115 (AD) (infra). Yes, labels do not matter. What matters are facts. But there is eminent value in the discussion shown in the previous paragraph which places distinction on the difference in offences. It shows the futility of the Accused's submission if argument is stretched to the extent of ignoring the distinction inherent in the different offences.
Another important or "parting" distinction to be made, as contended, was that the present Accused would never be prosecuted under military law. Indeed he is not a soldier or member of the LDF. And to rely on the dichotomy (that the charges are different in substance) brought by this situation is fallacious. So that as defence submitted calling offences by different names cannot assist the Court in arriving at a conclusion whether the plea of autrefois acquit or autrefois convict would succeed or not. The Court has to look at the facts giving rise to those offences not the labels or appellation as the defence argued. I could not agree with respect.
I agreed that as the facts and events relied on for presenting the charge of Treason at the stage at which the evidence of PW 3 (Hosanna Sako) stood were substantially similar only to the extent of the plan similarly conceived. The Court observed in agreement that the context is that of the military mischief (in mutiny)
while the facts relating to Treason and other alternative charges are surely broader in context. This was unarguable in my opinion but still it would not assist the Accused in his objection.
I found the Crown's submission not entirely accurate in so far as it said that all the facts were different, apart and separate but what is substantially correct in my view is that the facts as included in the Treason charge and together those with respect to other charges are broader. And so broad were the facts as to be able to sustain, if proved, at least one of the alternative charges. I did not find anything wrong with use of adjectives "similar" "different etc" to the extent that they described the nature, quantify and the quality of facts. And that is precisely the way the lawyers' skill in use of language is designed to work and is expressed.
I stand wiser to note that the Crown concedes that certain facts relating to the Mutiny charge are to be found in the Treason charge as I discovered but just as a portion of the whole. Mr. Semenya however contended that the entire facts in the Treason charge would stand in the mutiny charge. Supposing this was correct would the same argument extent to the facts supporting the alternative charges? The answer can only be in the negative. In my view this is the controlling factor. It is because even assuming that autrefois convict would apply as to the Treason and other charges at least one would remain as an exception. And in addition the prosecution may even choose to indict the accomplice witness on one charge and
not others if liability to prosecution is not discharged as envisaged in section 236 of the CP&E.
The test is not whether one crime is part of the other. In this instance one is a common law offence (Treason) and the other is a statutory one. It is whether the facts in the proved case are such as to give rise to the present charge or whether they can stand under the alternative charge. As I said clearly the Mutiny charge depended on the narrow confines of breach of military law as envisaged in section 48(3) of the Lesotho Defence Force Act
I refused to accept that distinctions between crimes have no value. It is precisely one controlling factor in that what has to be considered is whether the crime or offence is charged in the late indictment in the same, or in effect or substantially the same, as the crime charged in the former indictment. According to some Court decisions it is immaterial that the facts under examination or the witnesses being called in the late proceedings are the same as those in the earlier proceedings.
In Connely v Director of Public Prosecutions (1964) 1964 ALL ER 401, accused was charged with robbery and later with murder or the same factor. Autrefois acquit did not avail the accused. Lord Devlin said, that at page 1340, for the principle to apply it must be the same offence both in law and in fact.". See
Blackstones Criminal Practice 1998 DI0.29, 1288. This principle is faulted, in S v Davidson 1964(1) SA 192(T) and R v Long 1958(1) SA 115 (AD). Whether an offence in the same or not is a matter of substance rather than a technical description. It does not matter if it fits more than one crime. I would agree with this opinion with respect.
Even if these principles were to be faulted, thus calling for my discretion, I would show that special circumstances exist. These are that PW 3 will testify not only to the narrow facts "of Mutiny" but will extend to other facts and other charges. I have already said the similarity in the facts could therefore even exist only with regard to that the plan which may have been a single one or which coincides with others at some point. Much as I would endorse this similarly in the plan I would not agree that Mutiny is anything other than that which is prescribed in subsection 48 (3) of the Lesotho Defence Force Act. Mutiny has to be concerned with the authority of the Defence Force or forces of the Defence Force and the duty and service of the Defence Force. That is why it would be over-stretching the definition of Mutiny if it were to extend to any beyond what is contained in the said section.
Even if it is correct that certain restricted set of facts (as shown in the summary of the Mutiny offence) coincide with what is to be found in facts founding a Treason charge is not a good reason for not making a distinction between Treason
as a common law crime on the one hand and Mutiny as a statutory crime on the other hand. I did not easily lay my hands on authorities which I would associate with in saying that the distinction is material so as to say that a matter cannot be autrefois convict or autrefois acquit merely because although the facts are similar the previous charge was statutory and the other was a law one or vice-versa.
It should be clear that in the circumstances the objection ought to fail as I ordered.