BERE J: On 9 May 2008 the applicant was arrested
on two allegations of contravening s 4(2) of the Five Arms Act, contravening s
4(4) of the same Act,
and three counts of contravening s 126 of the Criminal Law (Codification and
Reform Act),
what is commonly referred as armed robbery.
Although the applicant was arrested on
9 May 2008, it was not until the 19th of the same month that he was
brought to the Harare
magistrates court for initial remand.
It is common cause that when the
applicant was arrested in connection with the current offences he had been on
bail pending appeal in respect of two offences of armed robbery.
Because of the nature of the offences
allegedly committed by the applicant, he was forced to apply for bail pending
trial to the High Court. That initial application was not successful. It was
then followed by numerous subsequent applications which were also unsuccessful.
The instant application is being
brought in terms of s 116(1) proviso (ii) of the Criminal Procedure And
Evidence Act [Cap 9:07].
The proviso under which this
application has been brought reads as follows:-
(ii)
where an application in terms of s 117A is
determined by a judge or magistrate a further application in terms of s 117A
may only be made, ……… if such application is based on facts which were not
placed before the judge or magistrate who determined the previous application
and which have arisen or been discovered after the determination”
In
mounting this application applicant has alleged basically two changed
circumstances
since his last effort to regain his liberty in December of 2008. Applicant
alleged that six weeks have elapsed from the last time he made similar
unsuccessful application in this court and that cumulatively it is now almost a
year after his remand in prison and that on its own constitutes change in
circumstances since investigations have been completed. The completion of
investigations means that there are no longer fears that the applicant will
interfere with police investigations, so the argument went.
It was also the applicant's contention
that the State case is no longer as strong as it had been anticipated. This
view, according to the applicant's counsel stems from the fact that whereas
initially the applicant was being charged with three counts of robbery and one
of possession of fire arms and ammunition, the robbery allegations have since
been dropped.
It was argued by the applicant's
counsel that the dramatic dropping of all the charges of armed robbery and the
coincidence of only police officers as witnesses in the two remaining charges
of fire arms and possession of ammunition has further weakened the State case
to the extent that the applicant must be granted bail pending trial as all these
development tend to lend credence to the applicant's stance that these
allegations were concocted by the investigating officers in their desperate
attempt to cover up their brutal shooting and maiming of the applicant at the
time of his arrest.
In opposing the application filed the
State has raised two main grounds. Firstly it was contended on behalf of the
State that the crime of possessing a firearm on its own was a serious charge
premised (according to the prosecution) upon cogent and admissable facts.
Secondly, it was argued that by
allegedly committing the current offence whilst on bail pending appeal on almost
similar allegations, the applicant had demonstrated a propensity to commit
similar offences and therefore was not a suitable candidate for bail pending
trial.
THE
APPLICANT'S ALLEGED PROPENSITY TO COMMIT SIMILAR OFFENCES
It is common cause that the applicant allegedly
committed these offences whilst on bail pending appeal in respect of two
convictions of armed robbery.
Bail pending appeal is granted after
the court seized with the matter is satisfied that the applicant has prospects
of success in the pending appeal and that the risk of abscondment is highly
unlikely given the circumstances of the applicant. These considerations are cumulatively looked
at but I am satisfied that the balance must tilt heavily in favour of there
being prospects of success in the appeal itself. See the case of State v Williams.
This must weigh heavily in favour of
the applicant in this case because his conviction must not be looked at in a
vacuum as chances are that he might succeed in his appeal. If this happens then
the aspect of previous convictions is weakened.
Secondly,
the circumstances under which the instant cases were allegedly committed by the
applicant are highly suspicious.
It is quite curious to note that when
the accused was initially brought to court for initial remand the form 242 was
silent on the brutal shooting of the applicant at the time of his arrest and
the circumstances under which he was arrested. Scanty and highly suspicious
summary was given in the form of evidence linking the accused to the alleged
commission of the offence.
Thirdly, it will be noted that the
offences of possession of firearms and ammunition were alleged to have occurred
at a place called Pennywise at Bonmarche, Eastlea Shopping Centre, Harare at 0930 hours. I
take it this place is a public place and that the offences including the
shooting of the applicant by the police officers happened in broad day light.
It is equally curious that the police did not record evidence from any possible
independent witnesses who witnessed the shooting, arrest and the alleged
subsequent search and recovery of the firearms and ammunition from the
applicant. Only the three officers who arrested the accused person are given as
State witnesses.
When the court sought clarification
from the State counsel, the State counsel aggressively retorted that the police
officers are professionals and were not obliged to record independent evidence
as their (police officers) evidence would suffice. I am certain the approach
adopted by the prosecution is extremely dangerous in the delivery of criminal
justice system in this country. Police officers are not little gods who are
infallible and they must always be encouraged to carry out balanced and
objective investigations and this case clearly shows there was no such
investigation.
In my view, it is certainly a
misconception of the law to say such allegations are based on “cogent and
admissible facts”.
At the risk of being accused of
prejudging the outcome of the trial of this matter, there is no doubt in my mind
that the allegations might prove to be extremely difficult to prove
particularly given the determination by the investigating officer to
comourflage the serious assault on the applicant through his scanty form 242
document.
If my rudimentary assessment of the
evidence to be tendered at trial is anything to go by (which I am certain it
is) then, the alleged propensity to commit similar offences on the part of the
applicant is further weakened to the extent that it must not obstruct him from
being granted bail pending trial.
THE ALLEGED
SERIOUSNESS OF THE OFFENCE OF POSSESSION OF FIREARMS AND AMMUNITION _________________________________________
There can be no denial that such an
offence is serious but this must be looked at in the light of what I have already
endeavoured to highlight and in particular the applicant's contention that all
these allegations were manufactured against him by the arresting details in an
effort to cover up their gruesome shooting of him.
That the applicant was brutally shot at,
at the time of his arrest is not in doubt. The uncontroverted submissions made
by defence counsel in the court a quo
was as follows:
“Accused was in
police custody for 10 days. At the time of his arrest he was shot on both legs and
arms. He was taken to a secluded area in Mazoe…..
He has problems
in passing stool. The doctor who released him said he needed “specialized”
medical attention. He was taken to Mbare and later Rhodesville police. This is
clear brutality from CID Homicide. May the matter be investigated and the
prison officer give him urgent medical attention”.
The
learned magistrate who heard the submissions remarked and concluded as
follows:-
“State to
investigate complaint and accused to be given medical attention at prison”.
It is significant to note that these
serious allegations on the part of CID homicide section were not controverted
or challenged by the prosecution at the time they were raised.
In the light of the shoddy
investigations carried out by the police officers in this matter, the applicant
has alleged that all these allegations against him were concocted in order to
cover up the brutality on him by the arresting details. In my view it is not
using minimum force to pump several bullets in a man's body in order to arrest
him.
If this is so,
then the seriousness of the allegations against the accused person are further
put to doubt.
In any event, assuming the prosecution
is able to establish the offences of possession of both firearms and
ammunition, there is a provision for a fine and I do not read such penalty to
be such that it would warrant abscondment by the applicant.
The prosecution has not commented on
the sudden withdrawal of the robbery charges. One can only speculate and or
assume that these allegations were raised in an effort to cloud issues in order
to complicate applicant's application for bail pending trial.
In any case, if nothing has been
established in so far as these offences are concerned for the past 12 months,
it remains wishful thinking that anything tangible can be achieved now.
CONCLUSION
I am more than satisfied that the
applicant has made a strong case warranting him to be granted bail pending
trial on changed circumstances.
Bail is granted in terms of the
attached draft.
Mushangwe & Company, applicant's legal practitioners
Attorney General's Office, respondent's legal
practitioners
