Application
for bail pending appeal
TAGU
J:
The
applicant was jointly charged with one Onismas Chitemere, a truck
driver who was acquitted, on a charge of unlawful dealing in
dangerous drugs as defined in section 156(1)(a) of the Criminal Law
(Codification and Reform) Act [Chapter
9:23].
The applicant was convicted after a contested trial, and was
sentenced to eight years imprisonment of which two years imprisonment
were suspended for five years on the usual conditions of good
behaviour.
Dissatisfied
with the conviction and sentence she noted an appeal to this court
under case number HC656/14. Pending the determination of her appeal,
she has approached this court for bail.
The
application is opposed by the respondent.
The
allegations were that the applicant unlawfully imported, delivered or
transported 76.96 kilogrammes of dagga from Mozambique into Zimbabwe
through Nyamapanda Boarder Post. The dagga was being ferried in a
vehicle, a Load Master horse registration numbers BM08PLGP, and a
trailer bearing registration numbers BM03LSGP being driven by Onismas
Chitemere.
The
undisputed facts were that the applicant boarded the said vehicle in
Malawi which was enroute to Durban in the Republic of South Africa.
It is not in dispute that the vehicle was occupied by two people
only, that is, the applicant and the driver. When the vehicle arrived
at Nyamapanda Boarder Post the driver declared his consignment. The
applicant did not declare anything. She proceeded to the Zimbabwean
side of the boarder. The dagga was discovered by ZIMRA Officials by
use of sniffer dogs when they were searching the said vehicle.
Upon
discovery of the dagga, the driver was very cooperative. He
immediately told the ZIMRA Officials that the dagga belonged to a
passenger he had given a lift, and had crossed the Zimbabwean Boarder
Post. He further told the officials that the said passenger was
waiting for him. He asked the officials to hide in the vehicle so
that he could show them the owner of the dagga. This led to the
arrest of the applicant.
The
applicant's defence is simply that the dagga did not belong to her.
She shifted the possession to the driver of the vehicle. She did not
dispute the fact that she was a passenger in the said vehicle. Other
than being a passenger she told the court that she was now in love
with the said driver who had proposed love to her.
The
principles governing applications of this nature were well settled in
the cases of S
v
Dzawo
(1) 1996 ZLR 536, S
v
Musasa
SC45/ 02 and in S
v
Labuschagne
2003 (3) ZLR 644 (S). The following were held to be the primary
considerations:
(i)
The prospects of success on appeal;
(ii)
Likelihood of abscondment;
(iii)
The rights of an individual to liberty; and
(iv)
The potential length of delay before the appeal is heard.
I
carefully perused the record of proceedings attached to this
application. There is nothing untoward on the manner the officials
testified. They gave their evidence very well. They even corroborated
the driver on the fact that applicant admitted that the dagga was
hers. She even asked to be pardoned. When she was arrested she even
asked to collect her $100-000 which she had stashed in the dash board
of the vehicle. When they arrested her she was the one who was
calling the driver to find out where the driver was. This is contrary
to her evidence that when she got at the boarder she left the driver
so that she proceeded on her own to Harare. The driver was not
initially arrested, but was actually a State witness. He was made an
accused by the prosecutors after the accused was now denying
possession of the dagga. The court therefore, from the evidence on
record did not misdirect itself when it acquitted the driver.
The
court properly found the driver to be a credible witness though he
was an accomplice. While it is trite that the State must prove its
case beyond a reasonable doubt, and that an accused has no onus to
discharge, the findings of the court on p219 of the record is
unassailable. The appellant contradicted herself in material respects
leaving her defence unreasonable. The court said:-
“Upon
arrest Accused (1) admitted to the offence. At one point she
indicated that she admitted to the offence on the instruction of
Accused (2) and because she deeply loved him. At another point she
admitted fearing assaults which threats she indicated at some point
came from Accused (2) and later stated that it was from the manner
she was arrested. Surprisingly, according to her testimony at Zimra
yard, she tried to dispute or deny the offence but she was threatened
with assaults by an unspecified person……In the foregoing, I found
inconsistencies in the evidence of Accused (1) which attacks
credibility. This against the background of the two State witnesses
which Accused (1) indicated had no reason whatsoever to lie against
her and their evidence was corroborative…Circumstantially, the
defence of Accused (1) is not only improper but cannot be accepted.”
Having
gone through the record of proceedings I share the same views. There
are therefore, no prospects of success in this appeal.
Given
the fact that applicant was sentenced to an effective sentence of six
years, there is a likelihood that she would abscond once released on
bail. Further, it must be noted that the applicant has a heavy onus
to prove. She is no longer presumed innocent. Her presumption of
innocence has fallen away. Hence her rights to liberty are weighed
against that of the administration of justice. The amount of dagga
she imported into the country is very substantial. A sentence in the
region of 10 years imprisonment was called for. She was lucky to get
away with an effective sentence of six years imprisonment. This
however, is appropriate given that she was a female offender. A
different court would not impose anything less than six years
imprisonment. The applicant therefore, is not a good candidate for
bail at this stage.
Lastly,
on the potential length of delay before the appeal is heard, this is
no longer a valid ground for admitting a convicted person to bail.
Appeals are currently being expeditiously dealt with.
In
the result, and for the foregoing, the application for bail pending
appeal is dismissed.
Makiya
and Partners,
applicant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
