MAKONI J: The applicant and 3 of his accomplices
appeared before a Magistrate charged with murder. The brief facts of the matter
are that the applicant and his accomplices approached Gletwin farm in
Chishawasha armed with pistols and with two get away cars. They disarmed the
two guards who were by the gate by tying them with shoe laces and bag handles.
They also handcuffed a guard who was in the chicken run. They also assaulted
him. The guard screamed and one Edson Manembe who was guarding the storeroom
heard the screams. As he approached the chicken run, armed with a catapult, he
was shot at 3 times in the chest, cheek and stomach. The applicant and his
accomplices attempted to open the storeroom and later ran away. Edson Manembe
was taken to hospital where he died on admission. The applicant and his three
accomplices were later arrested.
The
applicant now approaches this court seeking to be released on bail in terms of
s 117(1) as with s 117 A(1) of the Criminal Procedure and Evidence Act [Cap 9:07].
The
Law
Section
117(2) sets out in detail the grounds upon which a Judge may refuse to grant
bail to an accused. These include:-
(i)
where
there is a likelihood that the accused will not stand trial.
(ii)
attempt
to influence or intimidate witnesses or to conceal or destroy evidence..
These grounds have been expanded on
in case law. In S v Jonjure 2002 (2)
ZLR 209 at
215 G-H it was held that when
assessing the risk of an applicant for bail absconding before trial, the court
will be guided by the character of the charges and the penalties which in all
probability would be imposed if convicted, the strength of the state case; the
accused's ability to flee to a foreign country and the absence of extradition
facilities, the past response to being released on bail; and the assurance
given that is indeed to stand trial. The most critical factors are the nature
of the charges and the severity of the punishment likely to be imposed upon
conviction and also the apparent strengths and weaknesses of the State Case”.
Applying
the Law to the facts
The
applicant is facing a serious offence of murder in the course of a robbery. If
convicted chances of him being sentenced to death are very high. The accused's
version of events is that on the day the crime was committed he was nowhere
near the crime of scene. He was sick and being nursed by his wife at home. He co-operated
with the Police and led to the arrest of the accused who had hired his motor
vehicle. He was questioned by the Police whether he had relatives who were
police officers or knew anyone with relatives who were police officers. He led
them to Owen whose motor vehicle had also been hired by the accused.
The
State's version is that the accused was arrested and he led the arrest of his
accomplices. He led the Police to Owen whose motor vehicle they had hired. He
led to the recovery of one of the firearms which was used in the commission of
the offence.
The
probabilities favour the states version. The applicant happened to mention the
name of Owen to the Police who coincidentally had hired out his vehicle to the
alleged accomplices. He led to the arrest of one of the accused who shot
himself with the firearm used at the crime scene. He made indications to the
Police. It is my view that the State has a fairly strong case and chances of
the applicant being convicted are quite high. If the strength of State case is
taken into account together with the likely sentence, chances are that the
applicant will abscond if admitted to bail.
In
view of the above I will make the follow order.
The
application is dismissed with costs.
Mushongwe &
Company, applicant's
legal practitioners
E.
Makoto, respondent's legal practitioners
