MAFUSIRE J: The applicant
was arrested for theft of a motor vehicle. He was remanded in custody. He
applied for bail pending trial. The respondent, the State, opposed the
application.
The applicant was an
ex-policeman. He was vague about his exact date of discharge, being content to
allege that it was in 2016. The State said he impersonated a policeman and
committed the offence. The date of the offence was 6 December 2016. The State
said by that date he had since been discharged from the police force.
The allegations were that
on that date the applicant, clad in police uniform, purported to hire the
complainant, the driver of a golden coloured Toyota Funcargo motor vehicle, to
ferry his children from some school along the Gutu – Roy Road in Masvingo. He
convinced the complainant to drive via Gutu Police Station purportedly to
officially knock-off duty. On approaching the police camp he persuaded the
complainant to allow him to take over driving to facilitate easy entry at the gate.
At the entrance he asked the complainant to handover a cellphone to some other
policeman inside the station whilst he waited for him in the car. The
complainant obliged. When he came back, the applicant had vanished with the
car. The complainant reported the matter to the police.
At first the police had
no clue who could have done it. They had no leads. But how they ended up
tracing the stolen vehicle to the applicant was an impressive piece of
detective work.
The police started with
the cellphone. It was a Samsung type. The investigating officer, Detective
Constable Zachariah Chikwena [“Constable Chikwena”] was called to
give evidence against the bail application. Among other things, he explained
that the cellphone would have captured the essential details of every sim card [subscriber identity module] that
would have been inserted in it. The police enlisted the help of one of the
mobile telephone service providers, Econet Wireless. They used its eco-cash
mobile money transfer facility and inserted a sim card to activate the phone. Information about all the sim cards previously used popped up. The
details showing included the caller number [outgoing] and the called number [incoming];
the dates, times and geographical locations of the calls; and whether the calls
had been voice calls or short message services [sms].
A log sheet was compiled.
Two numbers were predominant. Both were traced to an address in Tynwald South,
Harare. The one turned out to be that of the applicant. The other belonged to a
female person.
Tynwald South, Harare,
was the police's next port of call, one and half months after the vehicle had
been reported stolen.
The police arrived when
the applicant and his wife were just about to drive off. They were in the
stolen vehicle. The applicant was arrested. The police recovered parts of the
police uniform. The applicant said he had sold the other parts to someone whom
he named. The police traced the buyer and accounted for the rest of the missing
items.
The applicant claimed he
had bought the vehicle from one Freeman Manyika [“Freeman”] of Ngundu,
Masvingo. That was the next port of call for the police.
Freemen denied ever
selling the applicant the vehicle. He was a car dealer. He had several cars on
display. One had been a golden coloured Toyota Funcargo. It had been a
non-runner. Freeman told the police the applicant had once visited him, clad in
police uniform, and had expressed a strong interest in the body of that
vehicle. Trusting him as a member of the police force, Freeman had released the
registration book to the applicant who had promised to come back later. But he never
did.
Constable Chikwena said
that when they arrested the applicant and recovered the stolen vehicle, it had
false number plates. It turned out that they belonged to Freeman's Funcargo. Freeman's
car dealership was unguarded. He denied he had ever given the applicant the
number plates. He had not even been aware that they were missing until the day
the police visited him. Constable Chikwena said the applicant admitted he had
plucked them off Freeman's stationary Funcargo, fixed them onto the stolen
vehicle and had thrown away the originals.
The State vehemently
opposed bail. It argued, among other things, that its case against the
applicant was very strong and that the evidence was overwhelming. As such, the
likelihood of a conviction was very high. In addition, the applicant was facing
several other charges. These included robbery and another one of theft of a
motor vehicle which had been committed in very similar circumstances. The
complainant in the latter matter had successfully picked the applicant at a
regular identification parade.
The State argued that if
convicted, the accused was unlikely to escape a custodial sentence. His
situation was exacerbated by the fact that he was an ex-policeman who continuously
abused his former status. Therefore, there was a strong inducement for him to
abscond.
The applicant completely
denied that he had stolen the vehicle. He denied that he was the character in
the complainant's story. He denied that he had ever impersonated a policeman.
He stuck to his story that he had bought the alleged stolen vehicle from
Freeman. Probably Freeman himself was the thief.
The applicant challenged
the telephone records. He said they were not authentic because there was
nothing to show that they had been from Econet Wireless. For example, they were
not on letter-head. Furthermore, there was no date-stamp.
On the other offences,
the applicant denied he had been involved. He argued, among other things, that he
had not been placed on remand in respect of any of them despite the time lapse.
That showed the police could not link him to them. The police were bent on
fixing him. Their plan was that once he got out on bail, they would pounce with
fresh charges, one after the other.
The law relating to bail
is well settled. There is really nothing new to add. The fundamental aspects
are re-stated merely as a route to the final decision.
Bail is a right. By it any
person arrested on suspicion of having committed a crime secures his liberty
and continues to enjoy his freedom. This is enshrined in s 50 of the
Constitution. Section 70 is a restatement of the common law. It says an accused
person is presumed innocent until proved guilty.
However, the same
Constitution empowers the court to deny bail in appropriate circumstances. Thus,
in every bail case, the task is to try and strike a balance between the
interests of the accused and the interests of justice: see Attorney-General v Phiri and S v Biti.
Sometimes it is not easy
to reach this equilibrium. On the one hand, until proved guilty, a person
arrested for any crime is still entitled to his freedom. On the other hand, that
person must be tried. If he is found guilty, it is in the interests of justice
that he be punished and rehabilitated. A trial, being the process by which his guilt
or innocence is determined, usually takes time to start or finish. This is due
to a number of factors. So the accused should not be prejudiced by the delays. If
there is an assurance that he will stand trial he should be freed on bail. If
there is no such assurance he must stay inside.
Guidelines have been
formulated by both case law and legislation to try and help the courts reach
this state of equilibrium in any given case. Each case depends on its own set
of facts. Some guidelines assume greater importance in some cases than do others
in other cases.
The legislature, in sub-section
[2] of s 117 of the Criminal Procedure and Evidence Act, Cap 9:23, has laid down a number of such guidelines. The
consideration whether or not the accused will stand his trial is elaborated on
in subsection [3]. In considering whether, if released on bail, there is a
likelihood that an accused will not stand trial, the court is directed to take
a number of factors into account. They include the nature of the offence or the
nature and gravity of the likely penalty. They also include the strength of the
case for the prosecution and the corresponding incentive on the accused to
flee.
The legislature did not
pretend to have listed all the possible guidelines that may be relevant in any
given case. It was left to the courts to develop them further. The court is
enjoined to take into account any other factor which, in its opinion it considers
should be taken into account. Taking a cue from this, the courts have said no
single factor is considered in isolation. For example, the nature of the
offence, the strength of the State case and the gravity of the likely penalty,
are all very important. But none of them is decisive or conclusive by itself: see
Fletcher Dulini Ncube v State.
In this case I have
considered that the State case is very strong. I am mindful that this bail
application is not the process by which the applicant's guilt or innocence is
being determined. But there is no denial that the evidence gathered by the
police so far is very strong. According to the State, the complainant was deceived
by a thief who stole his motor vehicle. The thief unwittingly left a cellphone
that provided a valuable lead back to him. The stolen vehicle was recovered in
his possession. His explanation for his possession, namely that he had bought
it from someone else, was investigated. It was a wild goose chase. I am
conscious that these allegations by the State are not yet proof of any sort. Among
other things, witnesses like Freeman are still to testify and be
cross-examined. The applicant himself is yet to testify. But these facts are an
important consideration.
I have considered another
factor which is of relative importance in this matter. In S v
Nyengera
MAKONESE J said, at p 3 of the unreported judgment:
“While an application for bail is
not a trial on the merits of the case itself, an Applicant must and should take
the court into [his] confidence by at least raising some plausible defence on
the charge.”
I agree with that
approach. Where the State has laid out a robust case against an accused person,
the heads naturally turn to him for a response. The ball is now in his court.
So if the accused's reply is incoherent or is implausible or is just a bare denial,
the court is excused if it concludes that the State case is strong. That has
been the position in this case. But there is more.
In Phiri's case above, REYNOLDS J said, at p 38C – D:
“I would accept that the mere
possibility of the accused committing further crimes, standing alone, would not
be of sufficient cogency to outweigh the accused's right not to be deprived his
freedom. But when to a bad criminal record is added the allegation, on evidence
of substance, that the accused committed further and similar crimes while on
bail, the matter, in my judgment passes beyond the limits of mere relevance,
and becomes highly persuasive and cogent.”
In
casu,
part of the State case was that the accused was facing other charges. One was robbery.
The other was theft of a motor vehicle, allegedly committed in similar
circumstances. Constable Chikwena said two other charges, namely relating to
impersonation and to driving a motor vehicle without a driver's licence, had
been combined under one docket with the current matter. The matters would be
dealt with under one trial.
To the State's
allegations of further offences, the applicant's response has just been a bare
denial. His argument was that he has not been placed on remand in respect of
them despite the passage of time.
Admittedly, in Phiri the court was addressing a
slightly different situation, namely the possibility of the accused committing
further offences whilst out on bail. However, it is my considered view that
what the court said therein is relevant in a case like this. The State has gone
beyond the mere sketching out of further offences by the applicant. It called
the investigating officer to provide the flesh to the skeleton. Among other
things, the applicant was positively identified by the complainant in the other
theft case. Mr Ndhlovu's
cross-examination on this aspect, as on many others, hit a brick wall. The
point was soon abandoned. Of course this was not the trial. At the actual trial
Counsel might well be more elaborate. The applicant might even be represented
by someone else. Nonetheless, all these circumstances are taken into
consideration in a bail application.
The applicant was an
ex-policeman. The State case was that he was abusing his former status and the paraphernalia
that he had not surrendered on discharge. The applicant said he had surrendered
it. But Constable Chikwena said part of it had been recovered on him. He had
sold the other part to someone whom he named. This had also been eventually recovered
from that individual. The major point is, if convicted the applicant is
unlikely to escape a jail term. He is likely to go in for a long stretch. For
theft, s 113 of the Criminal Law [Codification and Reform] Act, Cap 9:23, prescribes a penalty of a fine
not exceeding level fourteen [$5 000], the highest level, or imprisonment for a
period not exceeding twenty-five years, or both. Plainly, the Legislature was trying
to say theft is a very serious offence. This is a relevant consideration. A
lengthy custodial sentence is generally viewed as an inducement to abscond.
The applicant came across
as one who was a very itinerant person. Places traversed in this offence alone
included Mupandawana – Gutu, Harare and Ngundu. These are places some of which
have great distances between them. In addition, it was common cause that the applicant
had been to South Africa. He downplayed the visit to a single, once-off travel.
The State portrayed it as some considerable stay. Whatever the case, it had
been his right to travel. However, the point about this was that the applicant
was not an unsophisticated hermit. Constable Chikwena said at one time the
applicant had claimed he could easily procure travel documents without being
present in person. As a matter of fact, the applicant did have a passport. Constable
Chikwena said they had failed to recover it. The applicant said he was willing
to surrender it as part of the bail conditions if his application was granted.
At p 40 in Phiri's case, the learned judge said:
“In the absence of exceptional
circumstances, I believe that it would be irresponsible and mischievous for a
judicial officer to allow bail to a person who has given every indication that
he is an incorrigible and unrepentant criminal.”
Admittedly, cases such as
Phiri, Biti and Fletcher Dulini Ncube, supra,
and several others on the point, were decided before the advent of the
Constitution in 2013. So they should be treated with caution.
Section 50[1][d] of the
Constitution says that any person who is arrested must be released
unconditionally or on reasonable conditions, pending a charge or trial, unless
there are compelling reasons justifying their continued detention. In my recent
judgments in S v Nemaringa & Anor and Shava v S, I demonstrated that the
Constitution purposefully made bail a right of an accused person the breach of
which carries adverse consequences on all concerned, including judicial
officers, unless there is a law protecting them in the bona fide discharge of their duties. The new s 115C of the Criminal
Procedure and Evidence Act purports to thrust on the
accused the onus to prove compelling reasons for admission to bail in respect
of certain offences. But in those two cases, I held that this is manifestly in
conflict with the Constitution and that the onus remained on the State.
In this case I am
satisfied that the State has discharged the onerous burden on it to show that
compelling reasons exist to deny the applicant bail. Apart from the seriousness
of the offence and the strength of the case against the applicant, the improbability
of the accused's explanation and the several other factors against him that I
have explored above, are such that it would be “… irresponsible and mischievous …” to release the accused on bail.
In the premises, the
application for bail pending trial is hereby dismissed.
14 February 2017
Ndhlovu &
Hwacha,
legal practitioners for the applicants
National Prosecuting Authority, legal practitioners
for the respondent
