This
is an application for bail pending trial.
The
applicant is facing a charge of robbery as defined under section 126
of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
The
applicant appeared at the Magistrates Courts and was denied bail and
was referred to this Honourable Court since the robbery which the
applicant is facing involved the use of a firearm and hence falls
under the Third Schedule Offences Part 1 paragraph 3(a) of the
Criminal Procedure and Evidence Act [Chapter
9:07].
The
circumstances of the case are that on 22 November 2014, and at about
1800 hours, the applicant was driving a commuter omnibus along Upper
East, Avondale, Harare, in the company of two accomplices who are at
large. The applicant and his accomplices hatched a plan to rob
passengers in the commuter omnibus in and around Harare. They were
armed with a firearm and knives. The applicant and his accomplices
ferried passengers at Coppa Cabbana Rank
intending to go to Marlborough East. The commuter omnibus had
eighteen passengers. On the way to Marlborough East the driver
diverted the route and turned into Upper East towards Mt Pleasant.
One of the accused persons produced a knife and shouted at the top of
his voice ordering everyone to keep quite. The other accomplice
withdrew a pistol and pointed it at the other passengers whilst
demanding for all bags. The applicant, who was the conductor,
snatched the complainant's handbag and stole USD$440= and her
Samsung S4 Galaxy IMEI number 358904050059490. After the robbery, the
applicant and his accomplices pushed the complainant out of the
moving vehicle. They drove off at high speed along Pendenis Road, Mt
Pleasant, Harare.
On
29 January 2015 the police details received information to the effect
that the stolen cell phone was being used by Gerald Tarasikirwa.
Detectives interviewed Gerald Tarasikirwa who indicated that he
bought that cellphone from the applicant but had sold it to one Owen
Chinopamba. The cell phone was then recovered and it was positively
identified by the complainant as hers. The detectives interviewed the
applicant but he failed to give an account of where he obtained it.
He was then arrested.
The
respondent made a concession that the applicant is a good candidate
for bail. The reason being that the cell phone had changed hands
hence the evidence against the applicant was weak.
The
investigating officer, Detective Sergeant Alice Chirombo, deposed to
an affidavit opposing bail. Her basis for opposing bail being that
the applicant is likely to interfere with witnesses and
investigations. Further, some stolen property has not been recovered,
and, if granted bail, the applicant might hinder the arrest of the
outstanding accomplices. Furthermore, he might team up with his
accomplices and commit other similar offences. In the event of a
conviction he is likely to be given a lengthy custodial sentence and
this would induce him to abscond if granted bail.
The
principles which are followed in an application for bail pending
trial are set out in section 117 of the Criminal Procedure and
Evidence Act [Chapter
9:07].
The same principles were summarized in a number of cases. See
Makamba
v The State
SC30-04; Aitken
and Anor v Attorney–General
1992 (1) ZLR 249.
The
principles were stated as follows:
(1)
Whether the applicant will stand trial in due course;
(2)
Whether the applicant will interfere with the investigations of the
case against him or temper with prosecution witnesses;
(3)
Whether the applicant will commit offences while on bail; and
(4)
Other considerations the court may deem good and sufficient.
In
casu,
the applicant was linked to the robbery by the recovered cell phone
which was positively identified by the owner. His accomplices are
still at large, and, if granted bail, will not only interfere with
investigations, but also may commit further offences.
The
concession by the respondent is misplaced given the fact that,
although the cellphone exchanged hands, the others were able to
explain where they got it. The applicant dismally failed to give an
account of where he got it. It follows that the doctrine of recent
possession will operate against him.
Wherefore,
in the result, the application for bail pending trial is dismissed.
