IN THE HIGH COURT OF LESOTHO
In the matter between:
DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT
HIS WORSHIP MAGISTRATE MOTINYANE 1st Respondent
MOLEFI MATSOSO 2nd Respondent
For the Applicant : Ms Mofilikoane
For the Respondents :Miss Thabane
Delivered by the Honourable Mr. Justice T. Monapathi on the 14th day of January 2003
The Applicant seeks for review and setting aside of the first Respondent's decision whereby the charges against the second Respondent were dismissed in the circumstances shown fully below.
The First Respondent "released and discharged" the Second Respondent (Accused) from further prosecution on the 31st July 2002 in case number CR 115/98 of the Maseru Magistrate Court. The main reason had been that despite several postponements the public prosecutor had failed to appear on the date appointed for trial. The case had commenced on the 24th April 1998.
As Miss Thabane for Accused (Second Respondent) submitted that the order for discharge of Accused was properly made by the learned magistrate in accordance with section 278(1) of the Criminal Procedure and Evidence Act 1981 (CP&E). The sub-section reads:
"If a prosecutor –
In the case of a trial by a Subordinate Court does not appear on the Court day appointed for the trial, the accused may move the Court to discharge him and the charge may be dismissed,............"
The Director of the Public Prosecutions thought otherwise. Hence this application for review in which it is said that the First Respondent "proceeded in Chambers and without the knowledge and participation of the Chief Public
Prosecutor in the trial ........". That the acquittal of the Second Respondent should be reviewed.
This failure to appear on the said date of hearing is admitted by the Applicant's deponent (Ms Buang Mothae - Chief Public Prosecutor). She was the Applicant's deponent in the founding affidavit. She deposed to say that she was submitting:
"very strongly that it is not fair or just that First Respondent should have acquitted Second Respondent on this minor technicality in the face of such serious charges and in disregard of a very strong prima facie evidence in favour of the Crown."
The Crown case had already proceeded up to witness PW 7 when the said date of hearing was appointed. The matter had become a part-heard matter as against one in which an accused had not pleaded. The learned magistrate is accordingly blamed for not having considered in his decision the fact that the case was extensively part-heard. If he had done so he would not have made the decision that he made. It was furthermore contended that the case a serious one of two counts of attempted murder.
A further undisputed factual background was disclosed by the Chief Public Prosecutor. It was that on the late afternoon of the 30th July 2002, the First Respondent left the record of proceedings in the said CR 115/98 for her attention. The case was to resume its hearing on the next day. On page 65 of the record the learned magistrate states that the prosecutor had on the previous day at 11.00 am been reminded of this case. The record of proceedings revealed that the case had been handled by a public prosecutor who had since been relieved of her duties.
The Chief Public Prosecutor had familiarized herself with the record of the case "despite the fact that I had a matter of my own, which was also set for hearing ...". She was then as she averred called to "the DPP's office on an administrative matter. She said she became held up at the said office until the end of the working day. Apparently the Chief Public Prosecutor had not asked for an excuse from the First Respondent. It was not even averred that the First Respondent knew of the whereabouts of the Chief Public Prosecutor. Incidentally the first Respondent was in no way blamed for his efforts in seeing that the case had to be made to proceed.
On the following day - the day after the hearing - the Chief Public Prosecutor was informed by the First Respondent that the Second Respondent had come in company of his Counsel straight to his office and because the Chief Public Prosecutor was not present he had to discharge the accused for want of prosecution on application of his Counsel. The learned magistrate stated on page 65 of the record that "at 2.50 pm for reasons unknown to this Court Miss Mothae is not present." Miss Thabane had, as stated in the proceedings even been made to look for the Public Prosecutor and failed.
A further point is made by the Chief Public Prosecutor in her affidavit was that when the learned magistrate made the decision, which was not on the merits of the case, the record of proceedings was in the Chief Public Prosecutor's possession or with her secretary.
It was further common cause that as the learned magistrate also recorded there was a series of postponement which were "catalogued" which led to acquittal of the accused ostensibly on account of those postponements. What amounts to an assertion that there ought to have been some kind of condonation can be seen from the oblique statement from Miss Mothae that she could not
account for whatever happened during the various stages of development of the case in court.
This was a case as said before had been postponed several times not due to the fault of Accused, since 1998. At first the original prosecutor was suspended. In addition the presiding magistrate had gone even temporarilry on retirement. This was in all to the prejudice of the Accused.
I further noted, pertinently, that Miss Mothae had however been made aware of the case on the previous day. The fact of having familiarized herself with the case should have dictated her to a proper attitude to this a long-drawn proceedings which this case had become. Regrettably she had not informed the First Respondent of her unavailability nor sought to be excused on the day of dismissal of the case.
The Crown submitted that in a part-heard case such as the present the learned magistrate should not have acquitted. That therefore section 278(1) (b) of the CP&E was not applicable because "the provision of this section is also not mandatory." Maybe it is not. But why not? One thing to consider was that the
Public Prosecutor as representative of the Crown in criminal matters and thus being dominis litis was not discharging her duty.
In the circumstances the Applicant then spoke of the need to avoid further delay in the case and to avoid denying the Accused his freedom or liberty which policy is even justified by promulgation of Speedy Trial Act No 9 of 2002.
Another factor which the Applicant correctly introduced was the balance of the need for fairness and avoidance of prejudice against the Accused by reason of the charge that was hanging over his head for a period of about four years and on the one hand, as against the harm to administration of justice on the other hand by dismissal of the case that proceeded at great length without consideration of the merits, by the learned magistrate, as submitted by the Crown.
My interpretation of the powers of the court seized with an application in terms of section 278(l)(b)is that the presiding officer has a discretion. Hence the use of the phrase the charge "may be dismissed". Then the next question which arises is this one. Whether it was fair in the circumstances bearing in mind factors which I have alluded to in the preceding paragraph that the court can so
dismiss the charge without looking into the merits of the case. That is without having assessed or evaluated the evidence on record. The Crown submitted that this would amount to failure of justice
Incidentally there is no reference in section 278(l)(b) to proceedings or evidence such as in section 75 (3)of the (CP&E) which refers to discharge at the end of the crown case nor is there any distinction as to whether the case was to commence or was already part-heard. But the answer is simple to arrive at even without answering the question directly. Reference should be made to the minute of the 31st July 2002 page 2 of the proceedings where the learned Magistrate refers to there having been no prima facie case at the time when he ordered for the discharge. One would have wished the learned magistrate to have been more elaborate about the quality of the evidence. But it is quite clear that he excercised his mind about the quality of the evidence which is a process of evaluation and assessment assuming that such is the requirement.
On the other hand, and still in looking for alternative answers to the question, is the first difficulty that arises in seeking to answer the question from reading of the section 278(l)(b). There appears to be nothing to circumscribe the presiding officer's discretion by reference for example, to use of the words such
" if it appears to him", "if he is satisfied", "if he believes", "he shall on reasonable cause or on reasonable grounds", "in his opinion", "and if he thinks fit" or some such statutory formulae. I have however concluded that a presiding officer has a discretion. This he must exercise judicially taking into consideration all relevant factors.
On my part I would be guided by whether a presiding officer has taken to account relevant factors and made his decision on reasonable grounds which I would conclude he has. See the case of Dairy Produce, Quota Tribunal Ex-parte Caswell (1990) 2 A.C. 738 at 75. 'My first interest however is that the learned Magistrate has to weigh the factors before him in the totality of the circumstances. This factors can only be those that has been previously alluded to. These are for example: interests of the administration of justice, delay, unfairness and prejudice.
No suggestion can however, as Miss Thabane submitted, be positively inferred that in reaching this decision the presiding officer has to assess and evaluate the evidence before him. It is that situation where Crown Counsel has admitted could only lead to frustration of the administration of justice. This to my mind are questions of fact which although the presiding officer is not
implicitly asked to consider. May be in fairness and in the interest of justice he has to.' This is again bound up with the question whether there were reasonable grounds or there was a good cause for the learned Magistrate having taken that step. This I have already answered in the affirmative.
The second impression is one that one has to arrive at by seeking to investigate the policy of sub-section 278(l)(b) and what mischief it could have sought to work at and eradicate. Implicit in this reasoning would result the finding as to what the intention of legislature was. It is because :
"Legislation has an aim it seeks to obviate some mischief to supply on inadequacy to effect a change of policy, to formulate a plan of Government. The aim of that policy is evinced in the language of the statute as read in the light of other external manifestations of purpose". C.F. Frankfurter in Some Reflections on Reading of Statutes in Essays in Jurisprudence from Columbia Law Review (1963) at page 54-55, as quoted in Interpretation of Statutes by C.E. Devenish, First Edition, at page 34".
The overriding factor which is about the purpose of the section 278(l)(b) must have been to avoid the mischief of a charge hanging over the head of an accused who has a right to have his case heard or his fate decided and where the mischief is primarily caused by the "default of prosecution". The policy of the law is achieved if the charge is dismissed and the Accused is liberated where his case is not prosecuted.
I repeat that on good grounds the First Respondent discharged the Accused in the court a quo.
The application therefore fails.