BAIL
APPLICATION
CHIGUMBA
J:
The
question that the court must determine in this matter is whether it
is in the interests of justice that the applicant be detained in
custody because the concerns raised by the State have merit, that he
is likely to interfere with witnesses, and/or that he is likely to
abscond and not stand trial.
In
other words, the court must consider the evidence tendered on behalf
of the State, to substantiate these allegations.
It
is only where the court makes a finding that the State's
allegations are well founded, and the applicant fails to discharge
the onus on him to establish that he is a good candidate to be
admitted to bail, that a finding can be made that it is in the
interests of justice that the applicant be detained in custody.
In
the advent of the new Constitution regard must be had to a new
dispensation which demands that the court, in an application of this
nature, be satisfied that there are compelling reasons justifying the
continued detention of the applicant pending trial.
It
is my view that the test is the same as that emanating from section
117 of the Criminal Procedure and Evidence Act, except that section
50 of the Constitution makes it clear that the reasons for denying
admission to bail must be compelling.
In
my view this means that the State now has the onus of providing
cogent evidence to support its allegations against an applicant for
admission to bail. A certain level of proof of the allegations made
by the State in opposing admission of an applicant to bail must now
be met. It is my view that compelling reasons for refusal to admit to
bail must be such allegations that are more likely than not to be
true, on a balance of probabilities. The standard of proof is not
beyond a reasonable doubt at this stage, it is based on a
preponderance of probabilities.
The
applicant applied to be admitted to bail pending trial.
On
the 2nd of December 2015, the application was dismissed for the
reason that the applicant was not a suitable candidate for admission
to bail. The court stipulated that its reasons for this finding would
follow. These are the reasons.
This
is an application for bail pending trial, in which the applicant
seeks to be admitted to bail on the following conditions:
1.
That he deposits US$50,00 with the Clerk of Court, Murehwa
Magistrates Court.
2.
That he resides at Nyamandoro School in Mudzi.
3.
That he reports on every Friday at Mudzi Police Station between 6am
and 6pm.
4.
That he be ordered not to interfere with any State witnesses.
Applicant
was charged with murder, as defined in section 47 of the Criminal
Law, Codification and Reform Act [Chapter 9:23] (the CODE), it being
alleged that, on the 17th of October 2015, at 1800 hours, in Dzapasi
Village, Chief Mangwende village in Murehwa, he murdered Vaidah
Mubaiwa.
According
to the Form 242 Request for Remand form, the accused was positively
identified by three witnesses who are closely related to him, shoe
prints at the scene of the crime were found to match the shoes that
the accused was wearing when he was arrested, and the victim had
positively identified the accused as the person who had waylaid and
tried to ambush her at some point, before her demise.
According
to the outline of the State case, the accused was arraigned before
the Regional Court at Murehwa on a charge of the rape of the deceased
victim. He was remanded to 16 November 2015 for trial. It is alleged
that, on 17 October 2015, the accused tried to waylay and abduct the
deceased victim while she was alone at home. The deceased managed to
escape, and reported the incident to a neighbor. Maud Mufandaedza
Chivengwa who is the mother of the accused person. The accused's
mother instructed Chengetai and Chantel Chivengwa to accompany the
deceased victim to identify if indeed it was the accused person who
had tried to abduct her.
They
proceeded to a storm water drain where he had hidden and positively
identified him.
It
is alleged further, that the accused was waiting to pounce on the
deceased victim at her home and that, later on that day when she went
back home to secure the doors, he tried to grab her and she escaped.
She was in the company of Chengetai and Shantel Chivengwa. The two
again positively identified the accused as their uncle, and they
reported this to their grandmother, as well as the fact that he tried
to abduct the deceased victim again.
On
18 October 2015, the deceased's body was found in a gum tree
plantation in the same village. The shoe prints at the scene of the
crime were uplifted as evidence. The accused's shoes were taken as
evidence when he was arrested.
The
affidavit of the Investigating Officer, Detective Sergent Benjamin
Thamangani of the Zimbabwe Republic Police, Criminal Investigations
Department, makes interesting reading.
He
avers that he received a report that the body of a fourteen year old
girl had been found in a gum tree plantation in Chief Mangwende's
village. She had allegedly been kidnapped from her home. Her remains
were dumped on a pathway to the communal borehole. Her body had no
visible marks. It was noted that two witnesses had been with her when
she screamed for help while a kidnap attempt had been made on her. It
was noted that the accused was on a rape charge in which the deceased
was the complainant, on CRB 480-15.
The
implication was that the pending rape trial was the motive for the
murder, to silence the complainant and prevent her from testifying
against the accused.
It
was averred that the witnesses were closely related to the accused,
and that he had already threatened one of them over the phone.
Messages had been found in the accused person's mobile phone in
which he had intimated that he was preparing to flee to South Africa
to escape justice.
Applicant
in his bail statement submitted that applications of this nature are
governed by section 117 of the CPEA. He referred the court to the
case of Ian Makone v The State1where
this court stated that bail should be allowed in the interest of
individual liberty unless it is not in the interests of justice, and
that each individual case must be dealt with on its own merits.
That
case cited the case of S v Essack2,
in which the following dicta appears;-
“…in
dealing with an application of this nature it is necessary to strike
a balance as far as that can be done between protecting the liberty
of the individual and safeguarding and ensuring the proper
administration of justice”.
The
applicant referred the court to section 50 of the Constitution3
which in 50(1)(d) which states that;-
“50
Rights of arrested and detained persons
(1)
Any person who is arrested —
(a)…
(b)…
(c)…
(d)
must be released unconditionally or on reasonable conditions, pending
a charge or trial, unless there are compelling reasons justifying
their continued detention; and…”(my emphasis)
The
applicant denied that he murdered Vaida Mubaiwa as alleged.
It
was submitted on behalf of the applicant that he resides in Dzapasi
village under Chief Mangwende, and that he is 48 years old, and that
has never shown any willingness to endanger the safety of any member
of the public, and that he cooperated fully with police
investigations. It was submitted further that the applicant was not
likely to abscond because he has family ties here and no means of
escaping from this jurisdiction. He is a family man of fixed abode
with a large family which depends on him.
The
court was urged to follow the dicta in the case of S v Benataar4
that the chances of abscondment can be minimized by the imposition of
suitable conditions.
The
court in that case said that;-
“…
in
striking a balance between the liberty of a subject and the proper
administration of justice, the imposition of conditions in an
application for bail can be decisive, where bail can be granted
subject to safeguarding conditions, the court should if possible lean
in favor of doing so…”
The
court was asked to note that the applicant had not breached his bail
conditions on the rape charge, an indication that he was willing to
stand trial and to clear his name.
It
was submitted that the allegations against the applicant were
manufactured in an attempt to 'fix' him by witnesses whose
evidence is unreliable and unbelievable. It was submitted that the
evidence of the shoe prints was unreliable from a forensic point of
view. The evidence of interference with witnesses and intention to
flee the jurisdiction was not buttressed by any documentary evidence
such as phone records.
It
was submitted that there is no prima facie evidence that it was the
accused who murdered the deceased.
Applicant
assured the court and undertook not to interfere with any of the
witnesses if admitted to bail.
The
court was urged to be guided by the case of S v Bennet5,
where it was stated that;-
“…
it
appears to me that as applicants have not interfered with
investigations the proper approach should be that unless the State
can show that there is a real risk that the accused will, not merely
may, interfere, there does not appear to me to be a reasonable
possibility of such interference. In any event the applicant can be
dissuaded from such interference by the imposition of suitable
conditions. In reality if the police experience or encounter any such
interference that is fertile ground to apply for re-arrest and
cancellation of bail”.
It
was submitted that the applicant is aware of the seriousness of the
charge that he is facing, but that, this alone is not enough to deny
him his constitutionally guaranteed right to liberty. The court was
urged to rely on the case of S v Hussey6,
as authority for this proposition.
The
court in that case said that the mere fact that an offender is facing
a serious charge, albeit of a prevalent offence, does not justify his
incarceration pending trial, and that seriousness of an offence is
clearly a factor which should be taken into account together with
other factors, but not the only factor to determine whether a person
should be incarcerated. The court went to say that;-
“….
it is a well-established principle of our law that a man is innocent
until proven guilty. To disregard this very well founded principle
and to incarcerate an individual purely because he faces a serious
offence would be to disregard this very valid and important principle
and to weaken respect for the law and the social condemnation of
those who break it…”
On
the purpose of bail, it was submitted that the court must, in an
application for bail, strike a balance between the interests of
society that accused should stand trial and that there should be no
interference with the administration of justice, and the liberty of
an accused who, pending the outcome of his trial is presumed
innocent. See Kisimusi Dhlamini v The State7;
S v Achison8;
S v Dube9;
AG v Phiri10;
S v Chiadza11;
S v Matagoge & Ors12;
and S v Fourie13.
Finally,
it was submitted that the applicant had discharged the onus of
showing that he was a suitable candidate for admission to bail, on a
balance of probabilities.
The
State opposed the admission of the applicant to bail on the basis
that the evidence against him was overwhelming. The court was
referred to the case of S v Aitken14,
as authority for this proposition.
It
was submitted on behalf of the respondent that the allegations
against the applicant had been substantiated by the affidavit of the
investigating officer, in the outline of the State case, and on the
Form 242 Request for Remand form. It was submitted further that there
are compelling reasons justifying the continued detention of the
accused in terms of section 50(1)(d) of the Constitution.
Courts
are guided in their consideration of the suitability of any candidate
for admission to bail pending trial, by the provisions of section
117(1) of the Criminal Procedure and Evidence Act, [Chapter 9:07],
hereinafter referred to as the CPEA, which provides that:
“117
Entitlement to bail
(1)
Subject to this section and section 32, a person who is in custody in
respect of an offence shall be entitled to be released on bail at any
time after he or she has appeared in court on a charge and before
sentence is imposed, unless the court finds that it is in the
interests of justice that he or she should be detained in custody.”
(my emphasis)
The
court, in an application of this nature, must be satisfied that there
are compelling reasons justifying the continued detention of the
applicant pending trial.
Some
of the factors that the court ought to consider in establishing
whether the State's allegations are well founded are set out in
section 117 of the CPEA in considering whether it will be in the
interests of justice to detain the accused in custody on the basis of
cogent evidence that if released on bail he is not likely to stand
trial, or that he will attempt to influence and intimidate witnesses,
the court is enjoined to consider the following factors:
Where
it is alleged that accused will abscond and not stand trial:
(i)
the ties of the accused to the place of trial;
the
evidence on record is that the accused person's family homestead is
in this area, his mother and his brother live there, and that he is
the headmaster of a local school. Accused has lived in this area all
his life. I am satisfied that his ties to this area are binding and
substantial.
(ii)
the existence and location of assets held by the accused;
there
was no evidence in the accused applicant's papers on this aspect,
or in the State papers. The accused will be taken as not having any
assets for purposes of this application, because of the paucity of
evidence.
(iii)
the accused's means of travel and his or her possession of or
access to travel documents;
There
was no evidence in the State papers, except an allegation that
accused's mobile phone contained messages to the effect that he was
preparing to flee this jurisdiction.
In
S v Hudson (supra) at p 149, the court stated that:
“Where
an accused applies for bail and confirms on oath that he has no
intention of absconding due weight has of course to be given to this
statement on oath. However, since an accused that does have such an
intention is hardly likely to admit it, implicit reliance cannot be
placed on the mere say-so of the accused. The court should examine
the circumstances.”
We
note that no sworn statement was filed of record on behalf of the
accused.
The
accused did not take the court into his confidence as to whether he
has a valid passport, nor did he tender it to the court. Accused is
employed as a teacher so we can find that he has the means to travel
should he wish to do so.
Accused
has not discharged the onus of showing that he is not a flight risk.
The
State's statement on oath by the investigating officer constitutes
prima facie evidence of its averments. It is cogent evidence unless
it is discredited.
On
a balance of probabilities, balancing that statement against the bald
assertion of 'fixing' made on behalf of the accused, it is more
likely than not that the sworn statement contains true averments.
I
am satisfied that it is more probable than not, that the accused
indeed indicated that he intended to flee this jurisdiction via
messages on his mobile phone.
There
is no reason why, from the record of proceedings, and in the absence
of evidence other than a bald averment, the court should come to the
conclusion that the investigating officer, who is an officer of the
court, was not telling the truth in a sworn statement.
We
find further, on a preponderance of probabilities, that, it is more
likely than not, that the accused has no travel documents otherwise
he would have offered to surrender them in an effort to persuade the
court that he intends to stand trial and not flee.
(iv)
the nature and gravity of the offence or the nature and gravity of
the likely penalty therefor;
murder
is a capital offence which can attract the death penalty if committed
in aggravatory circumstances, will attract a custodial sentence of at
least twenty years. There is no doubt that the prospect of being
incarcerated for a long period is very real in these circumstances,
upon conviction.
(v)
the strength of the case for the prosecution and the corresponding
incentive of the accused to flee;
It
is an indictment on the accused that the witnesses against him are
all members of his family. There is no evidence on record that there
is bad blood between the accused, his mother, his brother's wife
and/or his nieces. A bald statement of their intention to 'fix'
him forms part of the record.
In
the absence of a better explanation as to why all these witnesses,
including two minor children would 'collude' against him, the
probabilities support the assertion that the witnesses may indeed
have seen what they claim to have seen. They did not see the accused
murder the victim, but their evidence of the kidnapping and abduction
attempt by the accused will have to be refuted at the trial, or by
tangible evidence of its unreliability or inconsistency.
For
purposes of this application, we accept that it is more likely than
not that the State case against the accused is strong.
The
accused was charged with the rape of a minor and admitted to bail
pending trial. The parties all lived in the same community, and were
neighbors. While on bail pending trial for rape, it is alleged the
accused was seen attempted to kidnap the victim, by members of his
own family. The victim had earlier on sought refuge at his mother's
homestead, alleging that he was lurking about her homestead and that
she had fled in fear after he tried to abduct her. In these
circumstances, the accused's incentive to flee is strong.
(vi)
the efficacy of the amount or nature of the bail and enforceability
of any bail conditions;
the
accused is a teacher who will be able to afford the proposed deposit.
The proposed conditions are not onerous, that are similar to the ones
imposed when the accused was admitted to bail on the rape charge. We
accept that the accused faithfully adhered to those conditions. There
is no cogent evidence on record to justify a contrary conclusion.
(vii)
any other factor which in the opinion of the court should be taken
into account;
The
court considered that the victim of rape and subsequently murder was
a minor whose life was cut short in the most callous manner after
being subjected to sexual violence. The court also considered that
the victim and the accused were neighbors, and that these cumulative
offences against the victim will have traumatized to community.
The
court also took into consideration the following factors;-
(i)
whether the accused is familiar with any witness or the evidence;
as
previously stated, the accused is closely related to all the
witnesses and if admitted to bail at the address proffered, is likely
to and reside in the same community as those witnesses, which is not
desirable.
(ii)
whether any witness has made a statement;
it
is common cause that the witnesses are closely related to the accused
person, and that the minor witnesses claim to have seen him hiding in
a storm water drain after allegedly attempting to abduct the victim
from her home. There are no witness's statements in the record.
(iii)
whether the investigation is completed;
it
is common cause that the investigations are not yet complete.
(iv)
the accused's relationship with any witness and the extent to which
the witness may be influenced by the accused;
it
is common cause that the witnesses are closely related to the accused
and that, some of them being his nieces are likely to be respectful
and deferential to him in accordance with our African culture. The
minors are the ones who are eyewitnesses, and are more likely to be
susceptible to undue influence.
(v)
the efficacy of the amount or nature of the bail and enforceability
of any bail conditions;
this
has been discussed above.
(vi)
the ease with which any evidence can be concealed or destroyed;
there
is no indication that the police are searching for any evidence that
is likely to be tampered with forensic or otherwise.
It
is this court's view that the State's fears that the applicant
will attempt to interfere with witnesses is well founded by the
averments in the affidavit of the investigating officer.
The
close family ties between the accused and the witnesses does not bode
well for peaceful co-existence pending trial or even during trial.
One of the witnesses is the accused's own mother. How will they
look each other in the eye pending the resolution of this matter?
They all reside in Chief Manwgende's village and fetch water from
the same well. There is a real risk that the accused will interfere
with his relatives because of the nature of the allegations, the
family ties, and the importance of their eyewitness accounts to his
conviction or acquittal.
The
imposition of bail conditions in this case is not likely to deter the
applicant from absconding, for reasons which the court has already
canvassed above. We find that there are compelling reasons why the
accused cannot be admitted to bail and should not be admitted to
bail, at this stage. It is for his own protection, as well as the
safety and protection of the witnesses.
After
all, in the circumstances of this case, the victim was apparently
killed to prevent her from giving evidence on the rape allegations.
Accused has not been proved to be the perpetrator of this violence
upon the person of another, but his release back to the community in
these circumstances may not be in the interests of justice.
The
court must weigh the interests of justice against the right of the
accused to his personal freedom, with particular emphasis on the
likely prejudice he would suffer were he to be detained in custody.
In
its analysis, and balancing act, the court is enjoined to consider:
(a)
the period for which the accused has already been in custody since
his or her arrest;
(b)
the probable period of detention until the disposal or conclusion of
the trial if the accused is not released on bail;
(c)
the reason for any delay in the disposal or conclusion of the trial
and any fault on the part of the accused with regard to such delay;
(d)
any impediment in the preparation of the accused's defence or any
delay in obtaining legal representation which may be brought about by
the detention of the accused;
(e)
the state of health of the accused;
(f)
any other factor which in the opinion of the court should be taken
into account.
The
applicant has been in custody since October 2015. There is no trial
date. The accused is a family man who is has previously been
convicted of domestic violence. Both crimes that he stands currently
accused of involve elements of physical violence against the person
of another.
The
court finds that the interests of justice would be prejudiced by the
admission of the accused to bail, because there is cogent evidence
that he has not been candid with the court in various material
respects, the prosecution case against him is strong, the penalty
severe, the court is not satisfied that he intends to stand trial,
the court is not satisfied that the accused has sufficient incentives
to stay in Zimbabwe until the finalization of the trial. The court is
satisfied that, the imposition of bail conditions would not be a
sufficient deterrent to keep the applicant in Zimbabwe, because of
the severity of the sentences that are likely to be meted out to him
if he is convicted.
The
applicant failed to discharge the onus on him, to place sufficient
evidence before the court, to satisfy the court that, on a balance of
probabilities, he will stand his trial if released on bail. This
means that he is not a suitable candidate for admission to bail.
The
application for bail is dismissed for these reasons.
Muchineripi
& Associates, Applicant's Legal Practitioners
National
Prosecuting Authority, Respondent
1.
B439-07
2.
1965 (2) SA 161D @ 162D
3.
Constitution of Zimbabwe Amendment number 20 Act 2013
4.
1985 (2) ZLR 205 (HC)
5.
1976 (3) SA 653 (H)
6.
1991 (2) ZLR 187 (S)
7.
HH57-2009
8.
1991 (2) S 805
9.
HB9-03
10.
1998 (2) ZLR
11.
1988 (2) ZLR (S)
12.
1991 (1) SACR 539B @ 542D-F13
13.
1993 (1) ZLR 100 (S)
14.
1992 (1) ZLR
