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MBABANE - Judge Cyril Maphanga said it appeared to him that the prosecution decided to ambush MP Bomber Mamba and only raise the issue of onus.
Onus means the burden of proof, which requires the accuser to prove the case against the accused
He said by so doing, the prosecution avoided the standard incidence of the burden of the Crown by suggesting that ‘attempted murder’ charge was of Fourth Schedule species.
The court noted that the charge did not indicate that this was a Fourth Schedule category offence intended to be brought within the fold of the subsection. Judge Maphanga said the charge was framed in imprecise terms.
Grievous
“The evidence itself is sketchy and ambiguous in describing the gravity of the offence. No indication that the Crown regards an element of grievous bodily harm to be involved in the offence even in the evidence of detective Zwane,” said the court.
He said the accused should not be left to surmise this or speculate. Judge Maphanga further stated that he was, therefore, not satisfied that the Crown could avoid the standard or conventional onus. According to the judge, the
Crown bore the burden to show that the detention of the accused was justified in the interest of justice as per the Criminal Procedure and Evidence Act.
“The two grounds relied on by the Crown turn on whether it has shown on objective basis that the existence of factors and evidence to ground a reasonable apprehension that the accused is likely to; endanger the safety of the identified witness and interfere with, intimidate or influence the witnesses from testifying against him,” noted the court.
The judge further highlighted that, to discharge the onus, it was suggested that the correct approach would be to ask the question whether it was likely that the accused would not interfere with the witness.
The court said the nature of the evidence led should show whether there was evidence of actual interference with the witness by the accused or previous conduct of such interference by him.
Judge Maphanga said the foremost test to be satisfied was whether evidence of the likelihood had been led to ground the prosecution.