Bail
Application
MOYO
J: The
applicant in this matter is facing five counts of robbery and another
two counts of robbery (carjacking).
The
offences were allegedly committed between June and December 2014.
An
application has been made to the court a quo for applicant to be
examined in terms of the Mental Health Act [Chapter 15:12].
It
is submitted in applicant's statement for bail that applicant is of
feeble mind.
In
such cases the court has to adopt an approach of balancing the
accused's interests with those of the administration of justice.
In
the case of Jongwe vs S SC62/02 it was held that when assessing the
risk of an applicant to bail absconding before trial, the court will
be guided by the character of the charges and the penalties which in
all probability would be imposed if convicted, the strength of the
state case, the accused's ability to flee to a foreign country and
the absence of extradition facilities.
The
most critical factors being the nature of the charges and the
severity of the punishment likely to be imposed upon conviction and
also the apparent strengths and weaknesses of the state case.
There
is need for the court to assess the strength of the state case, there
is also need for the accused to rebut the allegations and show that
he should be granted bail.
In
S vs Makamba SC30/04. It was held that if the affidavit of the
investigating officer raises a prima facie case against the accused,
in such circumstances an applicant would be expected, in attempting
to discharge the onus on him, to either deny the allegations, or to
place before the court such information as would tend to establish
his innocence, or to show that even if he were to be convicted the
likely penalties were not such as to present a temptation for him to
abscond, or to show that the interests of justice would not be
prejudiced by his release on bail.
In
Ndlovu vs S 2001 (2) ZLR 261 (H) it was held that in deciding whether
there is a risk of absconding the court should consider such factors
as the seriousness of the offence, the likely sentence and the
incentive to abscond. It was also stated in that case that it may be
desirable for the applicant to disclose his defence and not merely
make a bold statement that he is not guilty of the offence. Such a
defence is of great, and often of decisive importance in the exercise
of the court's discretion.
In
this case the accused faces 7 charges of robbery and carjacking.
It
is alleged that he is of feeble mind, an examination has been sought
for him under the Mental Health Act, [Chapter 15:12].
His
fingerprints were uplifted at the scene of crime.
On
the request for remand form, it is stated in relation to the accused
person who is the applicant before this court, that the fingerprints
uplifted at the scene match those of the applicant, and that
applicant has made certain indications which link him to the
offences.
Applicant
is of unstable mental standing this is evidenced by paragraph 22 of
the applicant's statement to bail wherein it is stated thus:
“Derick
Nkala knows applicant to be of a feeble mind, who is easily
intimidated to admit to things he did not do if put under pressure.
Derick knew that if he implicated the applicant, the applicant would
in all probability admit to crimes applicant did not commit.”
Whilst
it does not make sense why Derick would seek to name the applicant as
a co-accused for the sake of him being capable of admitting to crimes
he did not commit, it is important to note that this paragraph shows
that applicant does not take decisions of his own accord, he is
subject to other people's influences as he is of a feeble mind.
It
is imperative in my view that he remains in custody until when a full
report has been submitted on the state of his mental health.
From
the contents of the aforestated paragraph one wonders if applicant
would understand the concept of bail and the fact that he has to
adhere to the given conditions pending trial. It would be in the
interests of justice in my view that applicant's mental status be
tabulated before the court, so that the court makes an informed
decision regarding the issue of bail as well as for the court to
discern if the applicant appreciates and understands what is expected
of him in the circumstances if he is admitted to bail.
Also,
applicant's fingerprints were uplifted from the scene, this,
coupled with the number of counts he is facing, even if the mental
examination would show that he is appreciative of what is obtaining
in bail matters, the risk of absconding would still be high in my
view.
The
charges he faces are serious and are of numerous counts with heavy
penalties if he is convicted.
He
has been linked to the offences through the uplifted finger prints.
I
do not hold the view that it would be in the interests of justice to
allow applicant bail pending trial for the aforegoing reasons.
I
accordingly dismiss the application with costs.
Messrs
Majoko and Majoko, applicant's legal practitioners
National
Prosecuting Authority, respondent's legal practitioners
