This is an application for bail
pending trial which was only filed on 15 March 2012 when the applicant and his
co-accused were arrested on 12 September 2010. The applicant says he once filed
a bail application but withdrew it.
The
applicant is facing a charge of murder and his trial has been set for 14 May
2012 in this court. The allegations are that on 2 July 2010 himself and 3
others proceeded to Gletwin Farm in Chishawasha armed with pistols. They were
driving 2 motor vehicles which they parked some distance away from the farm
gate. They allegedly walked to the farm, cut a hole on the security fence to
gain entry and then proceeded to the guard room.
It
is alleged that they threatened 2 guards with pistols before tying their hands
and legs. They proceeded to the chicken run where they handcuffed another guard
before assaulting him demanding keys to the storeroom. The guard in question
screamed attracting the attention of another guard, the deceased, who came to
investigate. When the now deceased
appeared armed with a catapult, the applicant and his accomplices allegedly shot
him 3 times on the chest, cheek and stomach resulting in his death.
The
applicant and his co-accused were later arrested. They allegedly made
indications which led to the recovery of the firearms and the getaway vehicle,
a red vauxhall registration number AAL 1577. The applicant has remained in
custody since that time.
The
applicant, who appeared in person, submitted that 3 dates have been given for
their trial previously but on each occasion the trial has failed to take off.
He attributes the failure to try them to the fact that the State has no case
against them. He further submitted that the State is relying on indications
which were induced by assault as well as warned and cautioned statements which
were not made freely and voluntarily. In his view, he has no incentive to
abscond as he would like to clear his name and expose the violence being used
by the police against accused persons.
Mr
Chimbari for the State submitted that
the trial of the applicant has been set to commence on 14 May 2012 and that of
the applicant is a flight risk given that there is overwhelming evidence
against him and his co-accused. As he is facing a serious charge where capital
punishment may be imposed, this will act as an incentive for abscondment.
Prima facie the State case against the
applicant is very strong, what with the indications that were made by his
co-accused which led to the recovery of the weapon used in the commission of
the crime and the fact that the applicant was fingered by his co-accused Kudzai
Madziro. The applicant also admits having given an incriminating warned and cautioned
statement which he intends to challenge at the trial. Whether he will succeed in his endeavours is a
matter for another court and not the present inquiry.
That
the applicant faces a serious charge is self-evident. This application
therefore turns on the risk of abscondment. In S v Jongwe 2002(2) ZLR
209(S) at 215 B-C, the Supreme Court set out considerations for abscondment as
follows:-
"..
In judging the risk that an accused person would abscond the court should be
guided by the following factors:-
(i)
The nature of the charge and the
severity of the punishment likely to be imposed;
(ii)
The apparent strength or weaknesses of
the State case;
(iii)
The accused's ability to reach another country
and the absence of extradition facilities from the other countries;
(iv)
The accused's previous behaviour;
(v)
The credibility of the accused's own
assurance of his intention and motivation to remain and stand trial".
I
have already stated that the case against the applicant is very strong and that
the
charge he is facing is serious
indeed. The applicant is a sophisticated person who was a police officer at the
time of the alleged offence and would have little difficulty reaching another
country. I am not swayed by his assurances that he would like to have his day
in court in order to expose the brutality against accused persons being
perpetrated by our police force. It is not clear when he underwent this damascene
transformation he having been a member of the force until his arrest.
Indeed,
if convicted, the applicant is likely to be sentenced to a lengthy prison term,
if not to capital punishment. These considerations will certainly act as
motivation for abscondment.
In
any event, this application is coming rather late in the day when the
applicant's trial date is a month away and yet he has not bothered to apply for
his release all this time since he was arrested. When he should be bidding his
time for his day in court he now actively agitates for his release, raising the
probability that he will not stand trial.
I
conclude therefore that the applicant is not a good candidate for bail.
Accordingly
the application is dismissed.
Attorney-General's Office, respondent's legal
practitioners
