Bail
Application
MAKONESE
J:
The
Applicant is a legal practitioner employed at a law firm in Bulawayo.
He is aged 36. He was arraigned before the Magistrates' Court on
charges of contravening section 136 and 184(1)(e) of the Criminal Law
(Codification and Reform) Act.
It
is alleged by the State that the Applicant and his co-accused, one
Absolom Hlupo, a prison officer based at Khami Maximum Prison,
connived to generate a fraudulent warrant of liberation to secure the
release of a convicted prisoner.
The
Applicant and his co-accused appeared before a magistrate sitting at
Tredgold Magistrates' Court and applied for bail pending trial.
The
application for bail was refused on the following grounds:
(a)
the applicant is facing serious charges.
(b)
the applicant faces charges which brings his profession (the legal
profession) and the justice delivery system into disrepute.
(c)
the offences involve numerous individuals working as a syndicate to
issue warrants of liberation.
(d)
if convicted the applicant faces a term of imprisonment and this will
be an inducement to abscond.
The
applicant has appealed against the refusal to grant bail on the
grounds that the court a quo erred by finding that the Applicant was
a flight risk in that there was no indication that the Applicant had
any inclination to abscond.
Further,
the Applicant avers that the court grossly misdirected itself by
making findings which were not supported by evidence placed before
the court.
In
addition the Applicant argues that the court failed to consider that
whatever the States' fears were in regard to the Applicant's
ability to stand trial, such could be safeguarded by the imposition
of appropriate bail conditions.
The
Applicant contends that the seriousness of the offence in itself is
not a sufficient ground to deny bail.
I
will deal with each of the grounds for refusal of bail in turn:-
Applicant
faces serious charges
There
can be doubt that the allegations against the Applicant are fairly
serious. The Applicant who is a legal practitioner is alleged to have
been involved in an attempt to secure the release of a convicted
prisoner by the use of a forged and fake Warrant of Liberation.
The
offence came to light when an alert prison officer at Khami observed
an irregularity on the Warrant of Liberation.
The
Applicant denies the allegations and boldly avers that he knows
nothing about the offence.
It
is settled law that the seriousness of an offence on its own is not a
good ground for the refusal of bail pending trial. However it must be
pointed out that the seriousness of an offence has a direct bearing
on the application for bail with the likelihood of a severe prison
term being imposed in the event that the State secures a conviction
being an inducement to abscond.
The
seriousness of an offence, should in my view not be taken in
isolation but must be considered together with the strength of the
State case.
Where
the charge is serious and the State case is strong, the Applicant in
a bail application may be induced to abscond to avoid a lengthy
prison sentence. See the case of State v Biti 2002 (1) 115 at page
118.
In
the circumstances of this matter I will take into consideration the
seriousness of the offence.
The
court misdirected itself by making findings not supported by evidence
The
argument has been made on behalf of the Applicant that the Applicant
is presumed innocent until he is proven guilty in a court of law of
competent jurisdiction.
It
has been argued that there is no evidence before the court to show
that the Applicant may abscond if granted bail pending trial.
While
it is trite that the liberty of an individual must not be lightly
interfered with, it is also important to safeguard the interests of
justice by ensuring that suspects stand trial.
What
is most disconcerting about the allegations in this matter is that
the Applicant, who is a legal practitioner, sought to subvert justice
by securing the release of a convicted and a serving prisoner.
If
the allegations are proved the Applicant will most likely face a
prison sentence.
The
inducement to abscond lies in the fact that apart from the
Applicant's bare denial of the allegations, the Applicant has not
proffered any meaningful defence to the allegations.
At
the hearing of this matter I quizzed Mr Ncube, appearing for the
Applicant and he seemed to suggest that the allegations are a mere
fabrication.
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 its
confidence by at least raising some plausible defence to the charge.
I
therefore do not agree that there was a misdirection on the part of
the Magistrate in the court a quo.
The
court failed to consider that whatever the State's fears were these
could be dealt with by imposition of appropriate conditions
The
imposition of appropriate bail conditions is always a factor to be
given careful consideration.
In
circumstances where the court considers that the due administration
of justice will not be endangered, the court may, impose appropriate
reporting conditions.
Bail
is penal in nature and the court must always lean in favour of the
granting of bail wherever possible. In this regard, it was stated as
follows in Attorney General v Phiri 1987 (2) ZLR 33 (H), at page 39:
“The
test in my view, should be one of deciding whether or not there is a
real danger, or a reasonable possibility that the due administration
of justice will be prejudiced if the accused is admitted to bail---.”
In
all the circumstances of this case, I cannot find any misdirection on
the part of the court a quo in dismissing the Applicant's
application for bail.
The
court exercised its judicial discretion and in the absence of a
misdirection, the court must not interfere with the court's
findings.
I
must, however highlight the fact the reasons given by the court a quo
for the denial of bail ought to be taken together and not in
isolation.
In
the result, the appeal against the refusal of bail by the magistrate
in the court a quo is hereby dismissed.
Messrs
Cheda and Partners' applicant's legal practitioners
National
Prosecuting Authority's Office, respondent's legal practitioners
