Bail
Application
MAKONESE
J:
The
Applicant who is 24 years is a male adult ordinarily resident at
number 67043/7 Sizinda Flats, Bulawayo. He faces a charge of murder.
The
allegations are that on the 10th
December 2014 and at around 2000 hours the Applicant stabbed the
deceased (who was his half brother), once in the collar bone using a
screw driver. The deceased died as a result of the stab wound upon
admission to hospital.
The
Applicant is seeking bail pending trial. He argues that he a is
suitable candidate for bail on the following grounds:
(a)
his release on bail will not prejudice the due administration of
justice.
(b)
investigations are almost complete and there is no possibility of
interference with state witnesses.
(c)
the Applicant has no pending cases related to violence and has not
previously been convicted of a similar offence.
(d)
there is no risk of the Applicant absconding in spite of the
seriousness of the offence.
The
State opposes the application for bail and contends that there is
every likelihood that if granted bail the Applicant may be tempted to
abscond because of the inevitability of a custodial sentence if
convicted even on the lessor charge of culpable homicide.
The
State has further alluded to the fact that the Applicant did not
readily surrender himself to the police after the commission of the
offence. He disappeared and went into hiding soon after committing
the heinous crime. He was arrested at a beerhall in Sizinda two days
after the stabbing.
There
is no reasonable or credible explanation as to why the Applicant went
into hiding.
In
applications of this nature the courts will lean in favour of
granting bail where the following factors are established:
(a)
the interests of justice will not be prejudiced.
(b)
there is no danger of the Applicant absconding to avoid standing
trial.
See
the case of S
v Fourie
1973 (1) SA 110.
I
am mindful of the fact that there is evidence that the deceased may
have been the initial aggressor but it seems that the Applicant's
reaction to that aggression was totally disproportionate.
The
Applicant stabbed the deceased in the collar bone with deadly
consequences.
He
showed no remorse to the victim and fled the scene of the crime. He
went into hiding and was only arrested after police received
information on his whereabouts.
On
the basis of the circumstances surrounding the commission of the
offence and the manner of the Applicant's arrest there is no doubt
that the possibility of abscondment is real. The Applicant must be
aware that upon conviction he faces the possibility of a prison
sentence. That on its own will provide sufficient inducement for the
Applicant to abscond if granted bail pending trial.
In
terms of section 117(2)(a)(ii) of the Criminal Procedure and Evidence
Act [Chapter 9:07], the refusal to grant bail and the detention of an
accused in custody shall be in the interests of justice if it is
established that the accused will not stand trial.
In
considering whether this ground is established section 117(3)(b)(ii)
of the Criminal Procedure and Evidence Act requires that the court
following factors:
(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 likely penalty
therefore.
(v)
the strength of the case for the prosecution and the corresponding
incentive of the accused to flee.
(vi)
the efficiency of the amount or nature of bail and enforceability of
any bail conditions.
(vii)
any other factor which in the opinion of the court should be taken
into account.
I
am of the view that given the strength of the State case against the
Applicant and the certainty of a custodial sentence upon conviction,
the Applicant is not a suitable candidate for bail.
The
Applicant went into hiding after the commission of the offence which
points to his ability to abscond.
In
balancing the interests of the Applicant and the due administration
of justice the court is more likely to impede the proper
administration of justice by admitting the Applicant to bail.
In
the result, the application for bail pending trial is hereby
dismissed.
Messrs
Cheda and Partners,
applicant's legal practitioners
National
Prosecuting Authority's Office,
respondent's legal practitioners
