CHIWESHE
JP: The applicant is charged with armed
robbery on five counts. He is currently
on trial at the Magistrates Court, Harare.
The applicant is a member of the
Zimbabwe Republic Police. He is aged 28
and resides at 1207 Muzikanwi Street, Dzivarasekwa, Harare. His co-accused, Samson Chigwende, is a member
of the Police Special Constabulary in Dzivarasekwa, Harare. He is also aged 28. He resides at 7802 Tynwald South and works
for ZESA.
It is alleged that some time in
December 2009 the applicant, his co-accused, Eddie Chirwa and Richard Zimba
connived and hatched a plan to commit a spate of armed robberies around Harare
targeting elderly people. The plan was
that the applicant and his co-accused Samson Chigwende would supply Eddie
Chirwa and Richard Zimba with two sets of army uniforms and an air gun with
which the two would use to commit armed robberies in and around Harare. The applicant and his co-accused would in
turn receive part of the loot from the robberies so committed.
During the months of December 2009
and January 2010, Eddie Chirwa and Richard Zimba, dressed in army uniform and
armed with the air gun so supplied by the applicant and his co-accused, went on
to commit armed robberies against the persons and properties of five elderly
complainants . The complainants are as
follows:
(i)
Turville Kille, aged 77, residing at 53 Gallant Drive,
Mount Pleasant, Harare.
(ii)
Peggy Tandaol, aged 82, residing at 40 Northwood Rise, Mount Pleasant, Harare
(iii)
Dawson Gilbert Neville, aged 83, residing at 42 Couril
Drive, Mount Pleasant, Harare.
(iv)
George William Frederick Ellway, aged 82, residing at
17 Morgate Road, Mount Pleasant, Harare, and
(v)
Patrick Ronald Chisholm, aged 52, residing at 73
Lavenham, Bluffhill, Harare.
After the commission of these robberies, Chirwa and Zimba gave the
applicant and
his co-accused
an undisclosed sum of money and a 1209 Nokia cell phone.
On 30 January 2010 police, acting on
information, arrested the pair of Chirwa and Zimba. The army uniform, the air gun and various property belonging to the
complainants were recovered as a result Chirwa and Zimba implicated the
applicant and his co-accused. The
applicant and his co-accused were arrested on the same day 30 January
2010. On being searched the applicant
was found in possession of the 1209 Nokia cellphone which was positively
identified as belonging to D.G. Neville of 42 Couril Drive, Mount Pleasant,
Harare.
The applicant seeks bail pending
trial. He is employed by the Zimbabwe Republic
Police and is resident at 1207
Muzikanwi Street, Dzivarasekwa, Harare.
He is married and supports his family and members of his extended
family. He does not hold a passport and
if granted bail he would be able to report at his nearest police station at
least once a week. In addition the
applicant has a legitimate complaint – that is, it has taken too long for the State
to bring him to trial. He has awaited
trial since his arrest on 30 January 2010.
Ms Fero for the respondent and
the trial prosecutor have advised that trial has since commenced. The applicant has attempted to convince the
court that these two officers of the court are deliberately misleading the
court as to the progress made vis vis trial procedures. He maintains that no trial is in sight. In a sworn statement made available to the
court, the trial prosecutor, Mr Norman Tsarwe, states that on 17 September 2010
the applicant and his co-accused cross examined the first State witness. It was not possible to call the second State
witness as time had run out. The first
and second witnesses are both convicts serving prison terms (presumably these
would be Chirwa and Zimba). They have to
be conveyed to and from court by Prisons.
Sometimes Prisons would inadverrently leave them behind when conveying
other prisoners to court. On other
occasions prisons would not do the court run as they had no fuel. On this particular day, 17 September 2010, it
was CID Homicide who had to bring these witnesses to court. Mr Tsarwe further states that trial has been
adjourned to 1 October 2010. It is
intended to call on that day the second convicted witness and thereafter three
more state witnesses.
In addition Ms Fero has advised the court that she had physically visited the
magistrate's court to enquire from officers thereat as to what progress had
been made vis a vis trial. I have no
reason to doubt her integrity in that regard.
On the contrary, the applicant's assertions that the State was doing everything
to block commencement of trial and the further suggestion that State counsel is
deliberately misleading the court, should be dismissed for want of
substantiation. It is, however, correct
to observe that the applicant awaited trial for a period of at least eight
months, an inordinate delay for a case of this nature. Nonetheless it is also a fact that trial has
since commenced.
In a bail application it is now
established that the following factors, among others, should be taken into
account, namely;
i)
whether the applicant is likely to abscond and thereby
not stand trial
ii)
whether the applicant is likely to interfere with
witnesses or investigations if granted bail, and
iii)
whether the applicant is likely to commit further
offences while on bail.
The State is opposed to this application primarily because it is feared
the applicant may
abscond and thus
not stand trial, to the prejudice of the due administration of justice. The probabilities of abscondment in my view
are very high in the present case. The applicant
is facing a very serious charge and if convicted will be sentenced to a long
term of imprisonment. That in itself is
likely to induce abscondment on his part.
Further, the evidence against him is strong. In addition to the evidence of his alleged
accomplices, he has to explain how he came to be in possession of the Nokia
cellphone (identified by serial number) belonging to one of the victims of the
spate of armed robberies in which it is alleged he took part, directly or
indirectly. The prospects therefore of
conviction on one or more of the five charges preferred against him are
good. I therefore share the views of the
State that the applicant, faced with such prospects and such consequences, is
likely to abscond.
It was for these reasons that I dismissed the application for admission
to bail.
Attorney General's
Office, respondent's legal practitioners
