Bail
Pending Trial
MWAYERA
J:
The
applicant who is facing four counts of stock theft as defined in
section 114 of the Criminal Law (Codification and Reform) Act
[Chapter
9:23],
approached the court seeking to be admitted to bail pending trial.
It
is the State's contention that on 25 May 2018, 27 May 2018 and on 5
January 2019 the accused unlawfully took 10 cattle knowing that the
complainants in the 4 counts were entitled to own or possess or
control the livestock or realising that there was a real risk or
possibility that the complainants were the owners and entitled to
possess or control the livestock and intending to deprive the
complainants permanently of ownership, possession or control or
realising that there was real risk or possibility that he might so
deprive the complainants permanently of their ownership, possession
or control.
The
respondents opposed the application for bail.
The
State counsel Ms Katsiru
argued that the interests of the administration of justice would be
prejudiced if the applicant were to be admitted to bail. The
respondent presented that the state case is strong given there are
eye witnesses.
For
stock theft involving cattle given the mandatory imprisonment of 9
years imprisonment even for one count would act as an inducement to
abscondment.
Further
the State argued that given cattle are a source of livelihood theft
of 10 cattle is viewed as serious that admission to bail is likely to
induce shock and outrage in the community.
The
applicant on the other hand sought to be admitted to bail arguing
that he did not commit the offences and that he is innocent.
In
applications for bail pending trial the court has to seek to strike a
balance between the constitutionally guaranteed right to liberty and
the societal interests that the matter be prosecuted to its logical
conclusion or put differently the societal interests that the
interests of administration of justice is upheld.
The
applicant is facing 4 counts of a serious offence of stock theft.
It
has been stressed in a number of cases that the seriousness of an
offence on its own is not good enough reason not to admit the
applicant to bail. See S
v Hussey
1991
(2) ZLR 187 (S); Aitken
and Anor v Attorney General
1992
(1) ZLR 255; Jonathan
Maala v The State
HH122-15.
The
applicant is facing very serious offences 4 counts of stock theft
which would in the event of conviction entail lengthy imprisonment if
there are no special circumstances. However, the seriousness of the
offence should not be over emphasised at the expense of the right to
liberty. Section 50(1)(a) of our Constitution is instructive. Any
person who is arrested must be released unconditionally or on
reasonable conditions pending charge or trial unless there are
compelling reasons justifying continued detention.
The
provisions of section 117 of the Criminal Procedure and Evidence Act
[Chapter
9:07]
give useful guidelines on factors the court has to consider in
dealing with whether there are compelling reasons justifying the
denial of bail. They among others are outlined as follows:
(i)
Whether the accused if released on bail will endanger the safety of
public or any person or will commit an offence referred to in the
first schedule.
(ii)
Whether accused will stand trial.
(iii)
Whether the accused will attempt or influence or intimidate the
witnesses or conceal or distort evidence.
(iv)
Whether the accused's release will undermine or jeopardise the
objective or proper functioning of the criminal justice system
inclusive of the bail system.
These
factors, it is my view should not be considered in isolation. Rather
they should be cumulatively considered and juxtaposed to the
circumstances of each case. Where it is clear that the interest of
administration of justice will not be prejudiced by admission of the
applicant to bail then it follows there are no compelling reasons
warranting denial of bail.
In
casu
although the charge the applicant is facing is serious, upon
considering all the relevant factors this is a matter where bail
conditions would appropriately allay the state's fears. See Monica
Lubimb v The State
HB114/11.
The
seriousness has to be considered in conjunction with other factors
like possibility of abscondment and likelihood to interfere with
witnesses.
In
this case the accused has not shown tendencies of fleeing. There is
no evidence that after the alleged commission of the offences he fled
from the jurisdiction of the court. Further there is no evidence that
he interfered or showed inclination to interfere with witnesses. That
his release on bail is likely to induce shock and outrage among the
members of the community in the absence of evidence stating that the
applicant or society safety is at risk or under threat is not good
enough reason for interfering with the individual right to liberty.
In
any event societal interests can be cured by stringent reporting
conditions.
The
State fears of abscondment can be cured by appropriate reporting
conditions.
Upon
considering the right to liberty anchored on the presumption of
innocence and the interests of administration of justice, this is a
case where bail conditions are deemed decisive. There are no
compelling reasons why the applicant should not be admitted to bail.
Bail
is not in anticipation of punishment but on entitlement because of
the right to liberty and presumption of innocence. Only in
circumstances where the administration of justice is at risk or
prejudiced should one be denied bail pending trial.
Accordingly
the applicant is admitted to bail as follows:
IT
IS ORDERED THAT:
1.
The applicant pays $200.00 with clerk of court Mutare Magistrate
Court before release.
2.
The applicant resides at number 407 Area 3 Dangamvura Mutare until
the matter is finalised.
3.
The applicant reports once every week on Fridays at Mutare Rural
Police Station between 6:00am and 6:00pm.
4.
The applicant should not interfere with the state witnesses and/or
investigations.
5.
The applicant should surrender any travel documents he has to the
clerk of court Mutare Magistrate Court.
Legal
Aid Directorate,
accused's legal practitioners
National
Prosecuting Authority,
State's legal practitioners
