Lobatse High Court judge, David Newman, has dismissed an urgent bail application pending appeal brought before his Court by convicted Russian child defiler, Sergei Pastochenko, on grounds that it did not have merit and he went on to set a date for an ordinary bail hearing for the 29 of May.
Dismissing the bail application, Newman said that determination for an urgent bail application pending appeal’s guiding principles are that a special or exceptional circumstance must be shown to exist for the applicant to be admitted to bail and the applicant bears the onus of showing such exceptional circumstances.
In this case, he said, there were two circumstances for consideration. These, he said, were whether the applicant can show reasonable or likely prospect of his appeal being successful when heard and whether there is a real risk that by the time the appeal is heard the whole or substantial amount of sentence would have been served.
If the above questions are answered in the affirmative, he said bail would normally be granted.
Lawyer for the defence, Fashole Luke, when asked why the bail application could not be brought in the normal course, responded by saying that his client was in poor health as he was suffering from high blood pressure, which requires ongoing treatment in the form of medication and a special diet not being afforded to him in prison. He also said his parents were old and needed to be taken care of.
The state prosecutor, Thato Malambane, submitted that the justifiable reasons for granting bail pending appeal have not been established. That the needs for the applicant’s parents was not exceptional circumstances and that, in regard of the applicant’s medical condition, no independent medical expert had confirmed that he was unable to receive adequate treatment whilst incarcerated.
What was submitted was that prison has a clinic for those requiring medical attention and that if the facility were unable to care for the applicant, he would be referred to clinics or hospitals out of the prison as had been the case before the filling of these proceedings.
Justice Norman said that after seriously considering the submissions made, he was satisfied that the matter was not so urgent that it could not have been brought in following the normal course.
He had no doubt, he said, that prison authorities would allow the applicant to receive any medication and diet lawfully prescribed for him by a medical practitioner.