IN
CHAMBERS
MAVANGIRA
JA:
[1] The
appellant faces one count of robbery as defined in s126(1)(a) of the
Criminal Law (Codification and Reform) Act [Chapter
9:23].
He and accomplices allegedly conspired to rob a ZB bank cash in
transit truck that was transporting cash amounting to US$2,775,000 to
the bank's branches in Chinhoyi, Kadoma, Gweru, Bulawayo, Gwanda
and Zvishavane.
[2] He
applied to be admitted to bail by the High Court. His application was
dismissed by CHITAPI J on 16 February 2021. He thereafter petitioned
the High Court again, seeking to be admitted to bail on the basis of
alleged changed circumstances. The application was dismissed by
FOROMA J on 31 March 2021. Aggrieved, he noted this appeal in terms
of r67(1) of the Supreme Court Rules, S.I. 84/18 (the Rules). He
prays that this Court admits him to bail.
[3] In
dismissing the first application CHITAPI J found that the appellant
was a flight risk as the police arrested him after having been tipped
of his intention to leave the country. The appellant was said to have
been arrested after being ambushed at a toll gate where he was found
in possession of a substantial amount of money in United States
dollars. Upon his arrest he allegedly led to the recovery of
US$48,000 which he could not account for and which was alleged to be
his share of the crime proceeds.
[4] In
his reasons for judgment CHITAPI J stated inter
alia:
“The
second applicant is a demonstrated flight risk who was caught while
in the process of leaving Harare. The applicant is not only a flight
risk but his release on bail given the serious uncontroverted
allegations which were not challenged upon his remand will undermine
the objective and proper functioning of the criminal justice system
and the bail institution.”
[5] In
his judgment FOROMA J stated inter
alia:
“Despite
these positive findings against applicant another attempt at getting
his freedom was made by applicant on 18 February 2021 which was an
application for bail pending appeal based on changed circumstances.
That application was argued before me on 25 February. It was opposed
by the respondent on the basis that there were no changed
circumstances. I did not find any changed circumstances and
accordingly dismissed the application.”
[6] Before
FOROMA J the changed circumstances were alleged to be that because
the investigating officer had since considered that the appellant's
residential address as indicated to the police by an informant was
incorrect, it therefore followed that the police's failure to
locate the appellant at that address could not be support for the
contention that the appellant was on the run or that he was a flight
risk.
[7] FOROMA
J noted in his judgment that the alleged changed circumstance was
placed before CHITAPI J and was therefore not indicative of any
change in circumstances subsequent to CHITAPI J's judgment.
[8] In
Daniel
Range v S
HB-127-04
the following was stated at p2 of the judgment:
“In
determining changed circumstances the court must go further and
enquire as to whether the changed circumstances have changed to such
an extent that they warrant the release of a suspect on bail without
compromising the reasons for the initial refusal of the said bail
application.”
[9] The
court in S
v Brian Makanya
HH15/15 had this to say:
“The
applicant bears the onus to produce evidence which satisfies me that
exceptional circumstances exist which in the interest of justice
permit his release. Even if I accept that there are new circumstances
or changed circumstances, I am still obliged to consider all the
facts before me, new and old and on that basis decide whether the
applicant is a good candidate for bail.”
[10] The
dismissal of the appellant's application before CHITAPI J was on
the basis that he was a flight risk as demonstrated by the
circumstances of his arrest. The issue of the wrong residential
address was before CHITAPI J and he considered and dealt with it. It
was not the reason for the denial of bail. The dismissal of the
application was on the basis, primarily, that he had been arrested
while in the process of fleeing. That is what swayed CHITAPI J to
deny the appellant bail. This aspect was also found to justify the
different treatment that was received by the appellant's co-accused
who were admitted to bail. Their circumstances differ materially from
the appellant's in this respect.
[11] It
is trite that this Court will interfere with a decision of a judge of
the High Court in a bail application only if the judge a
quo
committed an irregularity or misdirection or exercised his or her
discretion so unreasonably or so improperly as to vitiate his or her
decision. See Remember
Moyo & Ors v The State
SC106/2002, citing with approval S
v Chikumbirike
1986 (2) ZLR 145 (S) at 146 E-F; S
v Barber
1979 (4) SA 218 (D) at 220 E-G.
[12] On
the facts related to above I find no misdirection on the part of the
court a
quo
in its dismissal of the application based on changed circumstances.
None has been established. In the circumstances, the appeal has no
merit.
[13] It
is accordingly ordered as follows:
The
appeal be and is hereby dismissed.
Maposa
& Ndomene,
appellant's legal practitioners
Prosecutor-General's
Office,
respondent's legal practitioners
