The
applicant was arraigned before the Harare Magistrate Court facing
three counts of contravening section 122(1) of the Criminal Law
(Codification and Reform) Act [Chapter
9:23]
which relates to robbery committed in aggravating circumstances
(armed robbery).
The
brief allegations in respect of the three counts of robbery are as
follows:
In
Count 1, the applicant is jointly charged with six other persons,
being, Ephraim Malcom Matiza, Trust Misola, Graig Benjamin Musasa,
Taurai Fagai, Roy Fungai Mafunga and Mustapha Ganda, who all reside
in the different suburbs of Harare. It is alleged that four other
suspects are at large. It is alleged that on 12 October 2014 the
applicant, with 10 other persons, proceeded to Number 3828 Rockview
Park in Ruwa using two getaway motor vehicles, a Toyota Chaser, white
in colour, registration number ADG 8309 and a white Toyota Vista
station wagon registration number ADJ 3718.
At
the premises, the applicant and his accomplices are said to have
manhandled a gardener, one Nhamo Magaso, and they tied both his hands
and legs after which they also blind-folded him. They proceeded to
use force to open the kitchen door and proceeded to the complainant's
bedroom where they stole a safe containing cash US$30,000=, an HP 13
Core laptop, silver in colour, and Stanbic cheque books. They loaded
their loot into the Toyota Chaser and drove to Proton Farm in
Caledonia, Acturus, where they broke the safe and shared the
US$30,000= and other property stolen.
It
is alleged that the safe was recovered on the applicant's
indications after his arrest and that the applicant and his
accomplices were also identified by the gardener after their arrest.
In
Count Two, the allegations are that the applicant, with four others,
Trust Misolo, Taurirai Fagai, Robson Paga and Mustapha Ngunda,
together with five others still at large, proceeded, on 6 November
2014, to Number 58 Gaydon Road Greystone Park, Harare armed with a
revolver driving get-away cars, a blue Mercedes Benz C200
registration numbers ABY 5171 and a silver Mercedes Benz C180 whose
further particulars are unknown.
At
the premises, the applicant and his accomplices are alleged to have
scaled over a precast wall and accessed the kitchen through an open
door. While inside the kitchen, they are alleged to have grabbed a
housemaid, one Charity Mwadzura, by the neck, and, while pointing the
revolver at her, demanded to know the whereabouts of the complainant,
Bi Heyan. The housemaid was force marched upstairs where the
complainant was busy on his laptop. At gun-point, the complainant's
hands and legs were tied using a computer cable. The complainant was
ordered to surrender all the cash he had failure of which he would be
killed. It is alleged that the whole house was ransacked and the
following property was stolen;
(a)
A chubb safe containing three pistols.
(b)
Three pistols, namely -
(i)
Glock pistol serial number LN2 936.
(ii)
Glock pistol serial number NXP 983.
(iii)
Glock pistol serial number unknown.
(c)
Firearm certificates for the three pistols.
(d)
300 x 9mm live rounds of ammunition.
(e)
Company documents, all in the safe.
(f)
Various unspecified clothes.
(g)
Mini laptop.
(h)
Cash US$485=.
It
is alleged that the applicant and his accomplices loaded all the
stolen property into the two getaway cars and drove to a bushy area
in Tafara, Harare where they broke the safe, shared the three pistols
and other property among themselves.
It
is further alleged that after the applicant's arrest he and others
led to the recovery of the stolen chubb safe at a bushy area in
Tafara and that the pistols were recovered upon the
applicant's arrest.
In
respect of Count Three, it is alleged that on 14 November 2014 the
applicant, together with Ephraim Malcom Matiza, Trust Misolo, Taurai
Fagai, Robson Pagai, Mustapha Gunda, Jonathan Muchemwa and the other
four accomplices at large proceeded to Number 537 Damba Road, Ruwa,
the premises of a company called Graceb Investments, driving two get
away motor vehicles, a silver Mercedes Benz whose registration
numbers are unknown and a white Subaru B4 registration number ADJ
4803 belonging to the applicant. They were also armed with a revolver
and the three Glock pistols stolen in Count Two.
At
the premises, they allegedly scaled the precast wall and accessed the
canteen where there were various people. They force marched these
people into a room where one of the applicant's accomplices guarded
them. The gang proceeded to a workshop where some workers were robbed
of their cellphones and force-marched to a room under guard. The
applicant and his accomplices are alleged to have ransacked all the
offices at the premises and stole the following property;
(i)
Cash US$39,600=.
(ii)
Norinco pistol serial number 49109330.
(iii)
Close circuit television decoder.
(iv)
4 laptops.
(v)
Various clothes.
(vi)
Various cell phones.
The
applicant and his accomplices are then said to have tied all the
complainants at the premises on both the legs and hands using ropes.
They then took two motor vehicles, a grey Honda CRV registration
numbers ACA 9323 and a Nissan Gloria Reg No. ACV 6755 which they used
to flee from the scene. The two motor vehicles were then dumped at
Letombo Spar, in Msasa Harare where the applicant and his accomplices
had left their getaway motor vehicles.
It
is alleged that the gang drove to Larfage cement and ZRP Support Unit
where they shared the loot. It is alleged that the applicant and his
accomplices were positively identified by the complainants, Wang Can,
Liu Ting and Li Guangxin during the robbery at the company's
premises. Further, it is alleged that the Norinco pistol and the
applicant's Sabaru motor vehicle were recovered upon the
applicant's arrest.
The
value of the property stolen in all the three counts is US$98,150=
and the value recovered is US$14,500= hence the actual prejudice of
US$83,650=.
The
circumstances of the applicant's arrest are alleged to be as
follows:-
On
19 November 2014, detectives from the CID Homicide, Harare received
information that the applicant and his accomplices were responsible
for the spate of movie-style armed robberies in greater Harare.
Acting upon this information, they proceed to Bob Farm in Mabvuku at
about 2330 hours and arrested Ephraim Malcom Matiza at the farm who
is linked to Count 1 and Count 3. It is alleged that Ephraim Malcom
Matiza implicated Benjamin Musasa and one Roy Fungani Mafunga and led
detectives to Roy Fungai Mafunga's House No.7464 Unit K,
Chitungwiza. The detectives managed to locate Roy Fungai Mafunga who
was driving a Toyota Vista registration number ADJ 3718 and Benjamin
Musasa driving a Toyota Chaser registration number ADG 8309 at
Chitungwiza Aquatic Complex that night after the two had parked their
motor vehicles. The detectives blocked the two motor vehicles and
arrested the two. It is alleged that these two, upon their arrest,
implicated Taurai Fungai, Jonathan Muchemwa, Trust Misolo and the
applicant and proceeded, that night, to lead detectives to the
applicant's residence at No.6292 New Tafara, Harare.
It
is alleged that at about 0200 hours, the detectives saw the
applicant's motor vehicle, a white Sabaru B4 registration number
ADJ 4803 parked along a road opposite the house with all the doors
open. Inside this motor vehicle were the applicant, who was at the
driver's seat, and the three others, Taurai Fagai, Jonathan
Muchemwa and Trust Misolo. The detectives proceeded to block the
Sabaru B4 motor vehicle in a bid to arrest the applicant and others
and it is alleged that the applicant and his accomplices drove
straight towards the police detectives' motor vehicle, a KB 300
Isuzu registration number ZRP 300E, hitting the police detectives'
motor vehicle. It is alleged that the applicant and his accomplices
started firing at the police detectives who returned fire and shot
Taurai Fagai on the right thigh and the applicant on the right ankle
after these two had bolted out of the Sabaru B4 motor vehicle running
away. The other two, Jonathan Muchemwa and Trust Misolo, were
arrested while still in the Sabaru 4 motor vehicle. The police Isuzu
KB 300 motor vehicle sustained a slight dent on the front bumper.
It
is alleged that the applicant's Sabaru B4 motor vehicle was
searched immediately and the following was recovered;
(i)
Glock pistol serial number LZA 936 with a magazine of 13 rounds
(relevant to Count 2).
(ii)
Glock pistol serial number NXP 983 with a magazine of 15 rounds
(relevant to Count 2).
(iii)
A Norinco pistol serial number 49109330 with 5 rounds (relevant to
Count 3).
(iv)
A pellet gun (not relevant to Count 1, Count 2 or Count 3).
(v)
359 x 9mm loose ammunition (relevant to Count 2).
It
is alleged that it was after this arrest that the applicant and his
accomplices led to the recovery of the safe stolen in Count 1, which
had been dumped at Proton Farm, Caledonia in Acturus and the chubb
safe stolen in Count 2 which had been dumped in a sewage in a bushy
area in Tafara, Harare.
These
are the detailed allegations of how the three Counts of armed robbery
were committed, the nature of the property stolen, how the applicant
was arrested, the property recovered, and how the applicant is
implicated in these allegations.
In
his bail statement, the 39 year old applicant, who resides at Number
6292 New Tafara confirmed his arrest in the early hours of 20
November 2014. The applicant stated that he is of fixed abode and was
arrested while at his house. The applicant denies any knowledge or
involvement in all the three Counts of armed robbery. The applicant
raises the defence of an
alibi;
that on the dates these offences were committed he was out of Harare
on business. The applicant does not specify as to when he left Harare
or when he returned. The applicant does not also state where he had
gone or the nature of the business he had attended to.
The
applicant denied that he was arrested after a massive shoot out with
the police and that the police are lying. Counsel for the applicant
accused the police of lying and submitted that the police detectives
callously shot at the applicant after they had ordered him to lie
down. The applicant denied that he resisted the arrest at all.
It
is the applicant's contention that no property was recovered on his
person upon arrest and denies that he led the police to the recovery
of any stolen property. Instead, the applicant alleges that he is
being maliciously implicated by his accomplices for reasons unknown.
The
applicant submitted that it has not been shown that he will not stand
trial and that he has no intention of fleeing from the jurisdiction
of the court. Further, the applicant stated that the State case, in
respect of all the three Counts, is very weak as there is no evidence
linking him to the offences other than the alleged implication by
some of his accomplices - some of whom he said were even granted
bail. The applicant said the State case is further weakened by the
fact that his alibi has not been disproved. All in all, the applicant
alleges that the
police have acted in bad faith as they cruelly shot at him when he
never resisted arrest and proceeded to plant fire arms in his motor
vehicle.
In
concluding, the applicant submitted that he is a proper candidate for
bail and is willing to deposit US$1,000= as recognisance, report to
the police as many times as may be required, and to continue to
reside at his house on New Tafara.
The
respondent opposed bail strenuously indicating that there are a
number of reasons why the applicant should not be admitted to bail.
Counsel
for the respondent submitted that the applicant is a flight risk as
he tried to flee from the police at the time of his arrest resulting
in him being shot. It was further submitted that the case against the
applicant is very strong as the stolen firearms were recovered from
the applicant's motor vehicle after his arrest and that he led
police to the recovery of some of the stolen property hence a clear
link to the offences….,.
In
support of his position, counsel for the respondent called two police
detectives, D/Sgt Gift Muuya and D/Sgt Charlie Munda both of C.I.D.
Homicide Harare.
Detective
Sergeant Gift Muuya (D/Sgt Muuya), a very experienced officer who has
been in the police force for 21 years, is the one who arrested the
applicant and his accomplices on 19 November 2014 to the early hours
of 20 November 2014 together with a team of other three detectives.
Detective
Sergeant Muuya narrated how, after the arrest of Ephraim Malcom
Matiza at Bob Farm, he implicated and led to the arrest of Craig
Benjamin Musasa and Roy Fungai Mafunga in Chitungwiza as already
explained. He said upon the arrest of these two they denied
involvement in respect of the robbery in Count 2 in Greystone Park,
and, instead, implicated the applicant, Jonathan Muchemwa, and Taurai
Fagai. These two, Craig Benjamin Musasa and Roy Fungai Mafunga, then
led detectives to where the applicant and others were in New Tafara –
specifically, the applicant's residence.
Detective
Sergeant Muuya said he proceeded to the applicant's house at about
0200 hours in the company of three detectives using an Isuzu KB300
and all four were armed with AK47 assault rifles.
In
Tafara, they were shown the applicant's Sabaru B4 motor vehicle
which was parked along a road opposite the applicant's house with
its doors open and there were four (4) people he later became to know
as the applicant who was on the driver's seat, and Taurai Fagai on
the front passenger seat with Jonathan Muchemwa and Trust Misolo in
the rear. Detective Sergeant Muuya said they drove towards the
applicant's motor vehicle with the head lights of the Isuzu KB300
on and proceeded to identify themselves as detectives shouting and
ordering the applicant and his three accomplices to come out of the
Sabaru B4 motor vehicle and submit to arrest by lying down. Instead,
he said, the applicant started his motor vehicle driving at high
speed towards the police vehicle and side-swiped the front bumper. He
said at the same time the applicant and Taurai Fagai shot randomly at
the police but did not hit the motor vehicle. Detective Sergeant
Muuya said he and his colleague, who were in the back seat of the
police motor vehicle, fired back and the applicant, together with
Taurai Fagai, bolted out of their motor vehicle and started to flee.
The other two, Jonathan Muchemwa and Trust Misolo, remained rooted in
the car. He said warning shots were fired to no avail and they shot
at the applicant who was hit on the right ankle as he fled and Taurai
Fagai on the right thigh. They managed to arrest all the four (4)
suspects.
Detective
Sergeant Muuya said after the arrest of the four suspects they
searched all of them and also the Sabaru B4 motor vehicle and
discovered the following:
(a)
Nothing was found on the person of the applicant, Taurai Fagai and
Jonathan Muchemwa.
(b)
Trust Misolo had, in his left trousers pocket, a Glock pistol
magazine charged with 13 x 9mm calibre live rounds of ammunition. He
was seated at the back of the Sabaru B4.
(c)
Inside the Sabaru B4 motor vehicle they recovered the following -
(i)
Glock pistol serial number LZA 936 with a magazine charged with 14 x
9mm rounds of ammunition. It was cocked and just under the driver's
seat where the applicant was seated. This pistol is relevant to Count
2.
(ii)
Glock pistol serial number NXP 983 with a magazine charged with 5 x
9mm rounds of ammunition and cocked – it was under the front
passenger seat where Taurai Fagai was seated. This pistol is relevant
to Count 2.
(iii)
Norinco pistol serial number 49109330 with a magazine charged with 5
x 9mm rounds of ammunition. It was in a satchel bag between the rear
seats where Trust Misolo and Jonathan Muchemwa were seated. The
pistol is relevant to Count 3.
(iv)
341 x 9mm rounds of ammunition – these were in the same satchel bag
described above and the ammunition is relevant to Count 2.
(v)
A pellet gun in the boot of the motor vehicle.
Detective
Sergeant Muuya said the two Glock pistols and rounds of ammunition
were linked to the robbery in Count Two and the Norinco pistol to
Count 3 and were later identified by the respective complainants.
Under
cross examination by counsel for the applicant,
Detective Sergeant Muuya said it is the applicant who drove the
Sabaru B 4 motor vehicle side-swiping the police motor vehicle. He
insisted that the applicant is one of the two suspects who randomly
fired at the police. He said the visibility was good as they used the
headlights of the police motor vehicle to beam at the applicant's
motor vehicle which was in front of them, hence he was able to see
the number of people in that motor vehicle and their sitting
arrangement. He insisted that the applicant drove his Sabaru 4 motor
vehicle at high speed towards the police motor vehicle hitting the
fender as police returned fire.
Detective
Sergeant Muuya gave very clear evidence and remained unshaken during
cross-examination. He clearly explained what led detectives to the
applicant; how the applicant was arrested; what was recovered upon
the applicant's arrest; and how the applicant is linked to Count
Two. He also explicitly narrated how and why the applicant was shot.
I have no cause not to accept his version of events.
Detective
Sergeant Charles Munda (Detective Sergeant Munda) was part of a team
which interviewed the applicant and others after the arrest in
connection with the three counts. He said on 20 November 2014 he
interrogated the applicant and that the following emerged;
(a)
In relation to Count 1, the applicant made indications as to where
they had dumped the stolen safe, and led them to Proton Farm in
Acturus when they recovered the safe in a gulley and recovered a
duvet stolen in Count One.
(b)
In relation to Count Two, he said the applicant and two others led
them to an area between Mabvuku and Eastview where they recovered the
safe stolen in Count Two which was dumped in a pool of water. Inside
the stolen safe they recovered three (3) firearm certificates
relevant to three (3) pistols stolen in Count Two and the complainant
in Count Two's personal and business documents.
(c)
Detective Sergeant Munda said he did not take part on the
identification parade held in respect of Count Three.
The
cross-examination of Detective Sergeant Munda by counsel for the
applicant was half-hearted and feeble. It was clear he had no
meaningful questions to put to him as he clearly explained the
indications the applicant made in respect of Count One and Count Two.
In
dealing with an applicant for bail pending trial the court should
always strive to strike a
balance between the liberty of the accused person and the interests
of justice. In terms of section 50(1)(a) of our Constitution any
person who is arrested must be released unconditionally or on
reasonable conditions pending charge or trial unless there are
compelling reasons justifying the continued detention.
The
provisions of section 117 of the Criminal Procedure and Evidence Act
[Chapter
9:07]
give useful guidelines on the factors the court has to consider in
dealing with whether there are compelling reasons justifying the
denial of bail. They include, inter
alia;
(i)
Whether the accused, if released on bail, he will endanger the safety
of the public or any particular person or will commit an offence
referred to in the First Schedule.
(ii)
Whether the accused will stand trial.
(iii)
Whether the accused will attempt to influence or intimidate witnesses
or to conceal or distort evidence.
(iv)
Whether the accused's release will undermine or jeopardise the
objective or proper functioning of the criminal justice system
inclusive of the bail system.
I
am not persuaded that the applicant is a proper candidate for bail.
The
applicant is facing very serious offences for which, if convicted, he
is most likely to be visited with a very lengthy custodial sentence.
It is trite that the seriousness of the offence, alone, is not the
basis to deny bail as the presumption of innocence operates in favour
of the applicant. This has to be considered with other factors. See S
v Hussey
1991 (2) ZLR 187 (S).
The
evidence led clearly shows that the appellant is a flight risk. The
manner in which he was arrested clearly demonstrates not only his
disdain of the law but frightening determination to escape the long
arm of the law. I do not believe that an applicant who engages in a
gun battle with the police, in a bid to avoid arrest, can, by any
stretch of the imagination be deemed to be a proper candidate for
bail. The conduct of the appellant clearly endangered not only just
the safety of law enforcements agents but the public in general. It
is clear the gun-totting suspects cannot be allowed to roam our
streets….,.
Other
than being implicated by the other accomplices, the applicant is the
owner of the Sabaru B4 motor vehicle used in the commission of the
offence in Count 3. Further, the appellant is linked to all three
Counts. In Count 1 he allegedly made indications just as in Count 2
leading to the recovery of the stolen safes in both counts which had
been dumped in the bush. The two stolen Glock pistols and rounds of
ammunition in Count 2 and the Norinco pistol stolen in Count 3 were
recovered in the applicant's motor vehicle. The strength of the
State case is likely to induce the applicant to abscond. This is
fortified by the fact that the applicant does not proffer a plausible
defence at all. The defence of an alibi which is half baked is not
useful to the applicant at this stage in light of the evidence placed
before the court.
I
am satisfied that there are compelling reasons justifying the
continued detention of the applicant. The application for bail lacks
merit.
In
the result, it is ordered that the application for bail pending trial
be and is hereby dismissed.
