Bail
Application
MAKONESE
J: The
Applicant is self employed. He operates a taxi business and
drives his own taxi for a living.
The
Applicant together with other accused persons, namely Derek Nkala and
Mayibongwe Banda are facing charges of robbery as defined in section
126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
It
is the state's case that on the 10th
June 2014 and at the intersection of Ardleigh Road and Chelmsford
Road, Matsheumhlope, Bulawayo, the Applicant together with his
accomplices, whilst armed with a wheel spanner and a knife,
intentionally used violence or threats of violence to induce the
complainant, who had lawful control over a Honda Fit, to relinquish
his control over the said motor vehicle.
The
Applicant applies for bail pending trial and submits that he is a
good candidate for bail for the following reasons:
(a)
the Applicant is a person of fixed abode.
(b)
he is self employed and his family is dependent on the proceeds of
his taxi business.
(c)
Applicant has no previous convictions and has no pending matters of a
similar nature.
(d)
the fact that the offence he is facing is serious on its own is not
sufficient ground to deny him bail.
The
Applicant denies the offence. He contends that he is jointly charged
with the other two accused persons only because he was found in
possession of a gear box which was sold to him by the said accused
persons. He further avers to that he paid the sum of $300 for the
gear box. In Applicant's assessment, the state case is weak and
there are high chances that he will be acquitted at trial.
The
state opposes the granting of bail in this matter and the following
grounds:
(a)
Applicant is facing allegations of a serious nature and the likely
sentence in the event of a conviction might induce him to abscond.
(b)
The state has a strong prima
facie
case against the Applicant.
(c)
Investigations are still incomplete and there is a possibility that
if granted bail the Applicant may interfere with the evidence and the
witnesses.
(d)
The investigating officer deposed an affidavit wherein he asserted
that when Applicant realised that his arrest was imminent he evaded
the police and went to his residence where he disposed some of the
property he obtained as proceeds of the crime in an effort to
frustrate investigations.
(e)
The Applicant is directly linked to the offence in that the gear-box
stripped from the stolen motor vehicle was found fitted on
Applicant's motor vehicle.
In
the matter of S
v Nhlovu
2001 (2) ZLR 261 the learned judge, NDOU J stated at page 264 as
follows:
“The
primary question to be considered is whether the Applicant will stand
trial or abscond. Of equal importance is whether he will influence
the fairness of the trial by intimidating witnesses or tampering with
evidence. A further consideration is whether the Applicant if
released, will endanger the public or commit an offence.”
It
is trite that in bail applications, the court must strike a balance
between the interests of the public and the proper administration of
justice as against the interests of the Applicant.
It
is my view that the presumption of innocence must be weighed against
all the available facts.
In
casu,
the Applicant contends that the gear-box removed from the stolen
Honda Fit was found affixed to his motor vehicle. His defence is that
he is an innocent purchaser. He paid for the gear-box and had no
knowledge of the robbery.
The
problem though is that the Applicant was arrested after being
implicated by his co-accused. He attempted to conceal evidence
when arrest was imminent. The finger prints from the crime scene
match those extracted from him.
In
accordance with the provisions 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.
I
am mindful of the fact that a bail application is not a trial on the
merits but I am satisfied in the instant case that it is neither
desirable nor in the interests of justice for the Applicant to be
granted bail pending trial.
If
granted bail, the Applicant will most likely be tempted to abscond to
avoid a trial.
The
likelihood of a lengthy prison sentence upon conviction is an
incentive for the accused to skip bail and avoid a trial.
It
should be noted that the seriousness of an offence on its own is not
a good ground for denying the Applicant bail, but the strength of the
case against him, coupled with his attempt to conceal vital evidence
leads to the conclusion that the Applicant cannot be a good candidate
for bail pending trial.
In
the circumstances, the application is hereby dismissed.
T.
Hara and Partners,
applicant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
