Bail
Application
MOYO
J: This
is an application for bail pending trial.
The
applicant is facing a charge of rape in contravening of section 65 of
the Criminal Law (Codification and Reform Act [Chapter
9:23].
The allegations are that on 6 December 2014 at around 2000 hours and
at House Number 155 section 3, Collen Bawn, applicant unlawfully had
sexual intercourse with a female juvenile aged 12.
In
his statement for bail, applicant avers that he is 24 years old and
that he is employed by Geelong Mine. Applicant denies the charge. He
says at the material time, he was not in Collen Bawn but was at his
place of employment in Geelong Mine.
He
says he also went to Gotshi stamp mill on 11 December 2014 and spent
seven days there crushing ore. He states that he returned to Colleen
Bawn on 18 December 2014.
He
is alleged to have raped the complainant on 6 December 2014.
It
is important to note at this stage that whilst the charge sheet
stipulates the date the offence was allegedly committed as 6 December
2014, the state outline states that the rape allegedly occurred on a
date that is unknown to the prosecutor.
Paragraph
7-8 of the state outline reads thus:
“After
some time being quiet the mother of the complainant called her in
order to test her virginity since it was their church norm to test
every child virginity quarterly, she ordered the complainant to lie
down and open up her legs and by so doing the mother of the
complainant quickly noticed that she was no longer a virgin before
she could even verify by their church methods.
The
complainant was asked and she told her mother the whole story
regarding what had transpired.”
In
such cases, central to the determination by the court is the
assurance that the accused person if released on bail would
nonetheless avail himself for trial.
His
personal circumstances, the strength of the state case, the overall
interests in the administration of justice are of paramount
consideration. Refer to Biti
vs
S
HH23/02.
In
the case of Makamba
vs
The State,
it was held thus:
“The
primary considerations in assessing evidence and submissions in a
bail application are:
(1)
whether the applicant will stand trial in due course;
(2)
whether the applicant will interfere with the investigations of the
case against him;
(3)
whether the applicant will commit further offences, whilst on bail;
and
(4)
other considerations the court may deem good and sufficient.”
In
this matter the applicant is employed by Geelong Mine. The charges he
faces are serious and is likely if convicted, to face a lengthy
imprisonment term.
He
is however innocent until proven guilty.
But
the immediate question that should be asked is, would the applicant's
release on bail would jeopardise the interests of justice?
Has
the state shown or given cogent reasons that would compel this court
to decline the applicant bail in the interests of justice?
Save
for assumptions and the fact that the applicant faces a serious
charge, I have not seen any compelling reason advanced by the state,
that justifies pre-trial incarceration in this matter. The state has
merely presented fears that because the charge accused faces is
serious he is likely to abscond.
Numerous
factors come into play here.
The
accused person has alluded to an
alibi
in his defence.
The
complaint itself was made under circumstances wherein its volition
and spontaneity could create problems for the state case at trial.
In
my view there is no compelling reason in this matter to deny the
applicant his liberty pending trial.
Moreso
these courts are enjoined to lean towards liberty in pre-trial bail
applications in line with the dictates of the presumption of
innocence unless if there are compelling reasons to decide otherwise.
I
am of the considered view that this is a matter wherein bail pending
trial should be granted as there is no clear pointer to the interests
of justice being jeopardised by such a decision.
I
accordingly grant the applicant bail in terms of the draft.
Messrs
Cheda and partners,
applicant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
