Bail
Pending Trial
MWAYERA
J:
On
12 July 2018 after considering written and oral submissions by both
counsel, I gave an ex tempore judgment dismissing the application for
bail pending trial.
The
written reasons for my disposition are captioned herein.
The
applicant is facing allegations of rape as defined in section
65(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
It is alleged that on 12 June 2018 at Muumbe Village the applicant
who is a cousin to the complainant entered into the spare bedroom in
which complainant was. The applicant produced a knife and forced the
complainant on the ground, following which he took off complainant's
skirt and pant. The applicant then forcefully had sexual intercourse
with the complainant without the complainant's consent. The
applicant approached this court seeking for bail pending trial which
application was opposed by the State.
Our
law in applications for bail pending trial is fairly settled. The
court is enjoined to strike a balance between the right to individual
liberty enshrined in the Zimbabwean Constitution Amendment (No.20)
Act 2013 (hereinafter referred to as the Constitution) which anchored
on the presumption of innocence till proven guilty by a competent
court of law on one hand, and the interests of administration of
justice which is premised on the societal interests of ensuring that
a matter is prosecuted to its logical conclusion.
In
terms of section 50(1)(d) of the Constitution any person arrested has
a right to his liberty unless there are compelling reasons militating
against his admission to bail.
Section
50(1)(d) is instructive, it reads:
“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.”
The
court in seeking to balance the right to individual liberty on one
hand and interests of administration of justice has to consider among
others factors outlined in section 117 of the Criminal Procedure and
Evidence Act [Chapter
9:07]
which among others include;
1.
Whether or not the release of applicant on bail will endanger the
safety of the public or any person.
2.
Whether or not the applicant will stand his trial.
3.
Whether or not the applicant will influence or intimidate witnesses.
4.
Whether or not the release on bail of the applicant will undermine or
jeopardise the proper functioning of the criminal justice system,
including the bail system.
In
the circumstances of this case, the applicant and complainant are not
only related but stay at the same homestead. The applicant is facing
serious allegations of rape in aggravatory circumstances, where a
knife is alleged to have been used.
I
am alive to the fact that the seriousness of the allegations or
offence on its own is not enough ground warranting deprivation of the
applicant's right to liberty as spelt in some cases like S
v Hussey 1991
(2) ZLR 187. See also Tavonga
Shava v The State HMA8/16.
I must however, emphasise that sight should not be lost of the fact
that the seriousness of allegations is a relevant factor for
consideration and ought to be considered with other relevant factors
when one seeks to decide whether or not there are compelling reasons
warranting denial of bail.
In
applications for bail it would be improper to consider factors which
fall for consideration as guidelines in determining whether or not to
grant bail individually. The factors have to be cumulatively
considered, together with circumstances of the alleged commission of
the offence.
In
this case the applicant, an adult cousin to the applicant is alleged
to have raped the complainant a 13 year old juvenile. The applicant
is alleged to have used a knife to threaten and then rape. Such
circumstances of alleged rape in aggravatory circumstances in
relation to a juvenile complainant who naturally is vulnerable taints
the offence as serious. Further given the fact that a report was
timeously made and that the complainant is well known to the
applicant ruling out mistaken identity gives the State case the
complexion of not only being serious charges but strong State case
given medical evidence and relatives who got report. The likely
sentence in the event of conviction is a lengthy imprisonment term.
These
factors can easily weigh on the applicant and act as a temptation and
inducement to abscondment. Once there is such likelihood of
abscondment then there is a real risk to the administration of
justice; see Albert
Issau Mutendenedzwa
v
The State HH
102/16.
In
the present case, there is further risk to the administration of
justice brought about by the closeness of the applicant and the
complainant who are not only relatives but stay together at the same
house. Such a scenario is a recipe for direct and indirect
interference. The complainant can freeze upon seeing applicant out of
prison and will not be free to testify thus threatening the societal
interests of having the matter prosecuted to finality. The
possibility of the applicant imposing himself on the complainant so
that she does not testify is reasonably apprehensible. See Tibello
Tlou
v
The
State HH
22/18.
Further
the possibility of the applicant and all other relatives conniving to
domestically resolve an otherwise criminal allegation is not
far-fetched.
Given
this apprehension on likely interference the suggestion of an
alternative address for the applicant will not cure the fear of
direct and indirect interference.
With
the current complaints on sexual abuse, the community at large is
alive to the sentences that attach in the event of conviction thus
the temptation to settle the matter at home is high. The temptation
to resolve the matter domestically is likely and this would
jeopardise the interests of administration of justice.
Upon
considering the circumstances of this matter and considering the
factors that fall for analysis in applications of this nature there
are too many risks to the administration of justice if the applicant
is admitted to bail. In other words it is my considered view that
upon weighing the interests of administration of justice and the
right to individual liberty, in this case there are compelling
reasons why the applicant should not be admitted to bail. For purpose
of ensuring that the matter is prosecuted to its logical conclusion
the interests of justice demand that the applicant should not be
admitted to bail.
Accordingly
the bail application is dismissed.
Mhungu
& Associates,
applicant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
