Bail
Appeal
CHIKOWERO
J:
Aggrieved
by the magistrates Court's refusal to admit him to bail pending
trial, the appellant has sought that decision reversed.
The
appeal is made in terms of s121(1) of the terms of the Criminal
Procedure and Evidence Act [Chapter 9:23] (“the CPEA”) as read
with r6(1) of the High Court of Zimbabwe Bail Rules, 1971.
THE
BACKGROUND
Appellant,
the Human Capital Director and Acting Town Clerk of the City of
Harare, was brought before the Magistrates Court at Harare a
Designated Anti-Corruption Court facing a charge of Criminal abuse of
duty as a public Officer as defined in s174(1)(a) of the Criminal Law
(Codification and Reform) Act [Chapter 9:23] (“the code”)
alternatively theft of trust property as defined in s113(2)(b) of the
code.
Appellant
was employed as Capital Director by the City of Harare at the time of
alleged commission of offence. The allegations are that on 30 October
2014 the appellant working in collusion with other executive
employees of the City of Harare transferred US$130,000 from the
traditional Beer Levy Account into his personal bank account.
Thereafter,
he used US$119,000 to purchase a Land Cruiser Prado which he
registered in his name; he pocketed the difference amounting to
US$11,000, which he later refunded to his employer through deductions
from his salary.
According
to the Traditional Beer Act [Chapter 14:24] the traditional beer levy
account is maintained by a local authority on behalf of the Minister
of Local Government Public works and national Housing. It is an
account kept separate from the local authority's general revenue
accounts. Withdrawals from that account are, by statutory command,
only permissible on Ministerial authority and only then for the
benefit of the residents of the local authority in the sense of
funding the provision sanitation, water and health among other
essential services.
The
alleged criminal conduct is that the appellant (in connivance with
the other executive employees) abused his duty as a public officer by
appropriating the US$130,000 without ministerial authority to the
prejudice of the residents of the city of Harare. Alternatively, the
simple allegation is that the appellant stole those trust funds.
The
Magistrates Court gave two reasons for refusing to admit the
appellant to bail;
(i)
First, the appellant was likely to abscond.
(ii)
Second, he was likely to interfere with investigations and witnesses.
THE
GROUNDS OF APPEAL
Five
(5) grounds were raised. I quote these verbatim:
“1.
The learned Magistrate misdirected herself and improperly exercised
her discretion in finding that there was likelihood that the
appellant would abscond without applying her mind to, and
considering, all the mandatory factors provided for in s117(3)(b) of
the Criminal Procedure and Evidence Act [chapter 0:07]
2.
The learned Magistrate misdirected herself and improperly exercised
her discretion in finding that there was a likelihood that the
appellant would interfere with evidence without applying her mind to,
and considering, all the mandatory factors provided for in s117(3)(c)
of the Criminal procedure and Evidence Act [chapter 9:07].
3.
the learned Magistrate misdirected herself in law in failing the find
that the state had not discharged the onus of proving “compelling
reasons” for denial of bail within the contemplation of s50(1)(d)
of the Constitution of Zimbabwe, 2013, particularly in that:
3.1
There was neither compelling evidence nor any other basis from which
it could be said that appellant was likely to abscond.
3.2
There was neither compelling evidence nor any other basis from which
it could be said that appellant would interfere with witnesses.
4.
the learned Magistrate's decision to deny bail on the basis of the
two grounds advanced by the state is so outrageous in its defiance of
logic or common sense that no reasonable magistrate, applying his/her
mind to the facts and conscious of the right to liberty, could ever
have reached that conclusion, particularly in that:
4.1
No reasonable magistrate could have failed to find that the bail
conditions offered by the appellant overwhelmingly addressed and
answered each of the grounds upon which bail was opposed and refused.
4.2
No reasonable magistrate could have failed to find that the crux of
the state case, namely appellant's alleged use of his position to
benefit himself, fell outside the main charge thereby making the
state case so weak that it could not be a reasonable basis for
denying bail.
5.
The learned magistrate committed an irregularity by writing a ruling
that is so brief and generalised as not to be a permissible basis for
denying bail.”
THE
TEST FOR INTERFERING WITH THE LOWER COURTS DECISION ON BAIL
The
granting or refusal of bail involves the exercise of discretion by
the Court before which the bail application is made. An appellate
Court will therefore not interfere with the exercise of discretion by
the lower Court unless the discretion was wrongly or improperly
exercised. See Aitken and Another v AG 1992 (1) ZLR 249 (S);
Chimwaiche v State SC18/13.
Interference
with a lower Court's exercise of its discretion is thus permissible
only in limited circumstances.
In
Baffos and Another v Chimponda 1999 (1) ZLR 58 (5) GUBBAY CJ, with
the concurrence of EBRAHIM JA and MUCHECHETERE JA said at 62F-63A:
“The
attack upon the determination of the learned Judge that there were no
special circumstances for preferring the second purchaser above the
first – one which clearly involved the exercise of a judicial
discretion – may only be interfered with on limited grounds. See
Farmers Cooperative Society (Reg).) v Beffy 1912 AD 343 at 350.
These
grounds are firmly entrenched.
It
is not enough that the appellate Court considers that if it had been
in the position of the primary Court, it would have taken a different
course. It must appear that some error has been made in exercising
the discretion. If the primary Court acts upon a wrong principle, or
irrelevant matters to guide or affect it, if it mistakes the facts,
if it does not take into account some relevant considerations, then
its determination should be reviewed and the appellate Court may
exercise its own discretion in substitution, provided always has the
materials for so doing. In short, this court is not imbued with the
same broad discretion as was enjoyed by the trial Court.”
It
is with these principles in mind that I proceed to determine the
appeal.
THE
ISSUE ARISING FROM THE GROUNDS OF APPEAL
Bail
was refused on two grounds, but five grounds of appeal have been
relied upon in attacking the decision of the Magistrates Court. The
issues arising from the grounds of appeal are these;
(i)
First, the Court below misdirected itself on the law in not
considering all the factors laid down in s1217(3)(c) of the CPEA in
assessing, respectively, whether the likelihood of abscondment and
interference with investigations or evidence were established.
(ii)
Second, the magistrates Court misdirected itself in finding in the
absence of evidence that the state had established that if released
on bail the appellant was likely to abscond and to interfere with the
investigations or evidence.
(iii)
third, the magistrate misdirected herself in failing to find that the
imposition of bail conditions was enough to allay any fears that the
appellant with investigations and evidence.
To
me, ground number 5 is not really a ground of appeal. Rather, it is
effectively an argument stemming from the first, second and third
issues I have just pelt out. The argument is simply that the brevity
of the judgment a quo evidence that the relevant bail principles were
not considered. No analysis of the evidence and submissions was made.
The result is that there are no proper reasons for the decision to
refuse bail.
ABSCONDMENT
S117(3)(b)
lays out six factors that the Court must consider in assessing
whether there is a likelihood of abscondment. These are:
(i)
the ties of the accused to the place of trial;
(ii)
The existence and location of assets held by the accused;
(iii)
The accused's means of travel and his or her possession of or
access to travel documents;
(iv)
The nature and gravity of the offence or the nature and gravity of
the likely penalty therefore;
(v)
The strength of the case for the prosecution and the corresponding
incentive of the accused to flee;
(vi)
The efficacy of the amount or nature of the bail and enforceability
of any bail conditions;
(vii)
Any other factor which in the opinion of the Court should be taken
into account.
To
begin with, the Court a quo misdirected itself on the law on bail
when it said:
“In
considering bail application, Court has to weigh factors which are
outlined in s117(2) of the Criminal Procedure and Evidence Act,
Chapter 9:07 which among those factors include absconding,
interfering with evidence, seriousness of the offence and likely
sentence.
Either
one or more of them if established constitute compelling reasons and
justifies accused persons continued detention in custody pending
trial.”
The
seriousness of the offence and the likely penalty are not two
factors. It is one factor.
A
serious or grave offence is more likely than not to attract a
corresponding penalty. Seriousness of an offence is one of the
factors a Court puts into the scales when weighting the risk of
abscondment. The seriousness of an offence or the likely penalty are
not standalone factors on which bail may be refused.
The
Court a quo mixed up the bail principles.
The
Court a quo misdirected itself in treating the seriousness as two
different factors.
It
further misdirected itself in considering the maximum sentence for
the main charge - 15 years imprisonment – as a factor with an
existence separate from the seriousness of the offence.
On
the basis of this erroneous view of the law (which was not warranted)
the magistrate concluded that appellant was likely to abscond. This
appears in three short paragraphs:
“On
the likelihood of absconding trial if granted bail, state averred
that accused person is facing a serious offence. A plethora of case
law has ruled seriousness of the offence per se is not a bar to deny
accused person bail. However, state further indicated that due to the
gravity of the offense in question and that the likely sentence is
imprisonment not exceeding 15 years. Court rules that the cited cases
by state which include S v Ndlovu, 2001 (2) 261 are of paramount
importance contrary to what accused person through his defence
counsel even though they were decided before the enactment of the new
2013 Constitution for they are in tandem with the factors stipulated
in s117(2) of the Code.
Court
rules that the seriousness of the offense or its gravity and the
likely lengthy imprisonment would induce accused person to flee the
jurisdiction of this Court. This is further coupled with the laxity
that our Police Officers and Immigration Officers, as was held in
William Sithole v State, 88/02 that people cross borders easily
without requisite travel documents.” (underlining mine for
emphasis)
I
agree with Mr Madhuku that the Magistrate found that the respondent
had established that appellant was likely to abscond simply because
he was facing a serious offense for which the law giver had
prescribed a maximum penalty of 15 years imprisonment. This was
denying the appellant bail on the ground that he was facing a serious
offence. This is an invalid reason to deny anyone bail. See S v
Hussey 1991 (2) ZLR 187 (SC).
The
Magistrate therefore grossly misdirected herself.
It
is true that after making this finding the Court below then went on
to recite other reasons to bolster a finding that it had already
made. The reasons were placed before the Court when the State Counsel
was making submissions. But the learned Magistrate did not assess
them against competing submissions made on behalf of the appellant.
That
is an injudicious exercise of discretion.
A
Court's duty is to weigh argument from both sides to enable it to
arrive at a proper determination of matter before it.
The
submissions which were uncritically accepted by the Court a quo, post
its finding that the seriousness of the offense was likely to induce
the appellant, were these:
(i)
The Police and Immigration Officers were lax in enforcing border
controls;
(ii)
this country's borders are porous;
(iii)
appellant is a person of means;
(iv)
he has travelled to various countries;
(v)
he stayed for a considerable period in Zambia;
(vi)
the extradition process with neighbouring countries has proven
difficult;
(vii)
appellant acted in connivance with others who are still out large;
(viii)
the investigating officer is finding it difficult to locate
appellant's accomplices who are still at large.
The
court a quo did not consider all the factors germane to an assessment
of the likelihood or otherwise of abscondment. These include;
(i)
the strength of the case for the prosecution;
(ii)
effectiveness or otherwise of bail conditions to allay any fears of
flight;
(iii)
the ties of the appellant to the place of trial; and
(iv)
the existence and location of assets held by the appellant.
The
magistrate thus did not properly exercise her discretion. See Gomba v
The State HH557/20.
The
error means I am at large to exercise my discretion on the issue of
abscondment, using the same materials as before the court a quo. In
doing this, I may or may not reach the same conclusion as was reached
a quo.
The
record discloses the following:
Appellant's
roots are in Zimbabwe. Although he studied in Zambia, he has worked
in this country. He is the owner of an immovable property called 10
Chamberlain Road, Greendale in Harare. This is where he resides.
There is no evidence that he has connections outside Zimbabwe. There
is no evidence that he owns assets outside our borders. There is no
evidence of any money he holds with any local bank. There is no
evidence that he holds any offshore bank accounts.
There
is uncontroverted evidence that some prominent persons (not named)
contacted the investigating officer pleading for his release from
police custody.
My
view is that both the main and alternative charges are serious.
Appellant
benefited in the sum of US$130,000. These appear to be public funds.
That he received this amount is not in dispute. That this was without
Ministerial authority is not denied. The audit report shows that
appellant orchestrated the process by recommending to the caretaker
Council in 2014, that the funds be transferred into his personal
account. It appears the appellant and his accomplices used the
councilors as the machinery to access funds which they had no legal
entitlement to.
I
am not the trial court but it seems to me, prima facie, that it
cannot be a strong defence to both the main and alternative charges
for appellant to say his conditions of service entitled him to the
vehicle which was bought using money from the traditional beer levy
account. The bottom line seems to be that funds from that account
ought not to have been used for the purpose which appellant and his
accomplices, having got their way around council, utilized it.
The
prejudice to the residents of Harare appears to be there.
It
seems to me that one cannot say, for purposes of this appeal, that
the respondent's case is weak in respect of the main charge. If the
respondent proves at the trial, which to me seems quite probable that
the funds in question were trust funds the alternative charge would
have been proved.
My
view is that the prosecution has a strong case against the appellant,
the probability of conviction on either charge is high and if that
happens, then the likelihood of appellant being incarcerated for a
lengthy period is also high.
The
maximum penalty in respect of the main charge is fifteen years
imprisonment while that for the alternative charge is twenty five
years imprisonment.
It
is the fear of lengthy incarceration coming on the high chances of
conviction that I find likely to induce the appellant to flee, with
or without a passport.
His
known immovable property can actually be disposed of to facilitate
the abscondment.
It
is true that the investigating officer said he did not know of
anything that the appellant has done suggestive of absondment. But
the investigating officer is not the court. The court retains its
discretion.
Although
appellant testified a quo he did not produce his title deeds. He did
not offer the title deed as part of the bail conditions.
I
raised this aspect with Mr Madhuku at the hearing of the appeal.
He
said if the appellate court were minded to allow ordering the
surrendering of title deed could be made.
I
heard this matter on appeal. The title deed is not part of the
record. The learned magistrate could not have decided the matter on
documentary evidence not placed before her. Neither can I consider to
surrender the title deed. The document is not before me.
My
view on the issue of abscondment may have been different if the title
deed were placed before the learned magistrate and a suitable
condition suggested to her. In short, I can only exercise my
discretion based on the materials that are before me. That is my
understanding of the dicta that I have quoted from the decision in
Barnos and Another v Chimphonda (supra).
A
trial is only possible where the course of justice is allowed to run
its course.
When
prominent people pleaded with the investigating officer to release
the appellant the intention was to scupper the prosecution of the
appellant.
The
offence was allegedly committed in 2014. The Tribunal, in March 2016,
recommended the prosecution of the appellant. Instead of that
happening the appellant resurfaced at Town House in 2020, this time
not only as Director Human Capital but also as Acting Town Clerk.
When he was eventually arrested prominent people pleaded for his
release.
In
my view all this was meant to ensure that appellant does not stand
trial.
All
devices not to stand trial have so far, failed. What could be the
next move? In my view it was too risky to release the appellant
pending the trial. The likelihood of him absconding remains high.
INTERFERENCE
WITH WITNESSES AND THE EVIDENCE
I
agree that the magistrate misdirected herself in perfunctorily
dealing with this aspect. She said the police needed to be accorded
time to finalise statement recording, and that the outstanding
witnesses were workmates of the appellant.
That
was all that she said.
Despite
this misdirection, I agree with her conclusion that appellant was
likely to interfere with the evidence.
The
police recorded statements from two City of Harare employees. At
least three more had statements yet to be recorded from them. These
are junior workmates of the appellant. The Chamber Secretary was
dragging his feet. He considered himself too junior to testify
against the appellant. If he did not cooperate the investigating
officer said the police had no option but to have him subpoenaed. The
other witnesses are a councilor and an employee from the accounts
department. These persons were named during the bail hearing.
Appellant knows them.
My
view is that appellant is a man of influence at city of Harare, He is
a Director Human Capital. In that capacity it appears he deals with
City of Harare employees in issues relating to employment. He is not
only that, he is now the Acting Town Clerk.
I
am persuaded he wields some influence.
The
witnesses from whom statements were yet to be recorded would, in my
view feel intimidated to cooperate with the appellant investigations
while appellant roamed free at Town House.
During
the appeal hearing, Mr Madhuku shot down, in anticipation, any
suggestion from the respondent that appellant should not appear at
Town House before finalization of investigations.
The
investigating officer's evidence that a large portion of the
documentary evidence that he had obtained consisted of illegible
photocopies was not controverted. He had difficulty even in securing
those photocopies. He was pushing to obtain the originals because it
is those which would be admissible at trial. He was yet to secure the
relevant bank statements.
Considering
that despite the Tribunal recommendations in March 2016 this is a
matter which had been swept under the carpet the investigating
officer's difficulties are understandable.
My
view is that it would be easy to destroy or conceal evidence if the
appellant were released while the investigations are in progress.
The
investigating office is Superitendent Moreblesing Gandiyaro. He is a
high ranking officer in the Zimbabwe Republic Police. A man of twenty
years experience in crime investigation, he is currently stationed at
the Police General Headquarters. That is the seat of police
operations in this country.
Despite
his seniority and where he operates from some prominent persons had
the courage to contact him to procure the release of the appellant.
Those were attempts to obstruct or defeat the course of justice. That
in itself is a crime. It also shows that appellant is well connected
to prominent people in this country.
Interference
with investigations and witnesses remains precisely that whether done
by the appellant directly or indirectly, through other persons. The
objective would be the same. The beneficiary would remain the
appellant. Those attempts all smack of corruption. It matters not
that the investigating officer was unable to tell whether those
efforts were engineered by the appellant. This was interference with
the process of investigation itself, targeted at the functionary
spearheading that process – the investigating officer.
The
objective was to kill the process at its inception.
It
is necessary that I extensively quote the words of GIKONYO J in
Republic of Kenya v Mayende and 3 others Criminal case 55 of 2009.
This is what his Lordship said about interference at pp 5–6 of the
cyclostyled judgment:
“[22]
All that the law requires is that there is interference in the sense
of influencing or compromising or inducing or terrifying or doing
such other acts to a witness with the aim that the witness will not
give evidence, or will give particular evidence or in a particular
manner.
Interference
with witnesses covers a wide range; it can be immediately on
commission of the offence, during investigations at inception of the
criminal charge in court or during the trial; and can be committed by
any person including the accused, witnesses or other persons.
The
descriptions of the kind of acts which amount to interference with
witnesses are varied and numerous but it is the court which decides
in the circumstances of each case if the interference is aimed at
impeding or perverting the course of justice, and if it so found, it
is a justifiable reason to limit the right to liberty of the accused.
[24]
In all civilized systems of court, interference with witnesses is a
highly potent ground on which the accused may be refused bail. It is
a reasonable and justifiable limitation of right to liberty in an
open and democratic society as a way of safeguarding administration
of justice undoubtedly a cardinal tenet in criminal justice, social
justice and the rule of law in general…
[25]
Administration of public justice particularly in criminal sphere
includes the process of adjudication as well as investigation of
criminal offences. On this the following words of Mac Dermott, Lord
Chief Justice in the case of Reg v Bailey [1956] N115 at p26 are apt:
'The
administration of public justice in the criminal sphere cannot well
be confined to the process of adjudication. In point of principle we
think it comprehends functions which nowadays belong to, in practice
almost exclusively, to the police, such as the investigation of
offences…'
It
also recognizes the compelling state interest principle where the
state's constitutional duty to bring offenders to book should be
free from wanton interference of its witnesses, and is to be weighed
against the right to liberty of the person charged if that person is
being accused of interfering with witnesses in his own cause.
It
is therefore a matter of great public interest to allow the course,
of justice to run without being hindered by any person, a group of
persons, a state organ or organs whatsoever, otherwise the pillar of
justice that is the enabler of constitutional rights and obligations
in society will collapse, and with it will tumble the entire societal
fabric, social justice and the rule of law.
That
is the amount of preponderant weight that administration of justice
bears and outweighs the right of the fourth accused to liberty
particularly where he has acted in a manner tending to impede the
course of justice….” (underlining mine for emphasis)
In
advancing argument on the likelihood of interference with
investigations Mr Kariwo submitted before the learned magistrate, at
pp150-151 of the record:
“We
will now your worship deal with the second ground on which we are
opposed to bail. This second ground your worship is to be found in
s117(2)(a), subpara (3) and we are saying the accused will attempt to
influence or intimidate witnesses or to conceal or destroy evidence.
Your
worship the court already heard the investigating office tell the
court that since the arrest of the accused person, he has been
contacted by various persons who are seeking the release of the
accused person. Your worship this already points to interference with
investigations. And if the accused person himself were released, we
submit that the intensity of such interference and intimidation of
witnesses would actually increase…”
I
associate myself with the sentiments of GIKONYO J in Republic of
Kenya v Mayande and Others (supra) that it is in the interests of
justice that the criminal justice system, which includes the
investigation of criminal offences, should be allowed to run its
course unhindered.
Mr
Kamuriwo hit the nail on the head when he argued a quo that the
release of the appellant would compromise the investigation.
In
my judgment respondent established that if appellant were released he
would attempt to influence or intimidate witnesses or to conceal or
destroy the evidence, including otherwise interfering with the
investigation process itself. His release would undermine or
jeopardise the objectives or proper functioning of the criminal
justice system including bringing the bail system into disrepute.
No
condition would reasonably deal with the interference because the
likelihood was not confined to direct and visible efforts of the
appellant.
In
the result, although I have found that the learned magistrate did not
judiciously exercise her discretion in determining the issue of
interference I have found no basis for interfering with her finding
and conclusion in that regard.
THE
OTHER GROUNDS OF APPEAL
I
have addressed the issues raised in the course of disposing of the
grounds of appeal on abscondment and interference. The need for a
separate treatment of the other grounds of appeal therefore falls
away.
DISPOSITION
In
the result, the appeal against the refusal of bail be and is
dismissed.
Lovemore
Madhuku lawyers, appellant's legal practitioners
National
Prosecuting Authority, respondent's legal practitioners
