The
applicant is incarcerated in remand prison on allegations of fraud as defined
in section 136 of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
He
is alleged to have fraudulently converted to his own use 30 tonnes of
fertilizer valued at US$16,200= which he had been contracted to transport.
He
was denied bail by a magistrate on the basis that he is a high flight risk. The
State alleges that the offence was committed in December 2009. Since then, he
has been on the run evading arrest until his recent arrest in November 2010. In
response, it was submitted, on his behalf, that all along he was not aware that
the police were looking for him.
In
determining the application for bail, the presiding magistrate took into
account that the right to liberty was a fundamental human right. He observed
that in the absence of compelling reasons the courts always lean in favour of
the enjoyment of the right to liberty rather than its extinction. Thereafter,
he reminded himself of the presumption of innocence until one is proven guilty.
He warned himself of the dangers and undesirability of pre-incarceration
pending trial.
The
trial magistrate made it crystal clear that he was averse to imprisonment of
suspects unless it was absolutely unavoidable in the public interest and the
due administration of justice. He was alive to the fact that the accused bore
the onus of establishing that his admission to bail will not compromise the
ends of justice
The
applicant's defence is simply that he instructed one Muchada to transport the
fertilizer. Having done that he does not seem to have advised the complainant
that he had instructed someone else to transport the fertilizer in question. He
also appears not to have sought any explanation from Muchada as to why the
fertilizer did not reach its destination.
The
trial magistrate relied on established precedent in the case of S v Hussey 1991 (2) ZLR 187 (SC) which is
authority for the proposition that if prior to his arrest an accused person is
shown to have tried to avoid arrest or escape it's a clear sign that he is
likely to abscond to avoid standing trial thereby compromising the ends of
justice.
Having
properly considered the facts, and the law, the lower court concluded that the
applicant had been trying to avoid arrest since 2009 until he was arrested a
year later following his arrest on a different case altogether. It therefore
determined that he is a flight risk and denied him bail.
The
applicant was unable to say why the police were unable to arrest him for a
whole year when his identity and colleagues were known. The fact that he was
only accounted for after he had been arrested on another charge tends to
support the magistrate's fears that the applicant cannot be trusted to stand
trial if granted bail. That being the case, I cannot perceive any misdirection
or impropriate in the trial court's determination.
The appeal is accordingly dismissed.
