Bail
Application
MWAYERA
J:
The
applicant was arrested and arraigned before the magistrate court on a
charge of rape. He was detained in custody and has approached this
court seeking for bail pending trial.
It
is alleged that the applicant took advantage of the complainant's
mental disorder condition and had sexual intercourse with the
complainant without her consent or realising that the complainant
might not consent. Thus the applicant was charged with Rape as
defined in section 65 of the Criminal Law (Codification and Reform)
Act [Chapter
9:23].
The
bail application is opposed.
The
respondent counsel argued that admission of the applicant to bail
would be prejudicial to the interests of administration of justice.
The State's contention being that given the seriousness of the
offence and the likely sentence the applicant would not stand trial
but abscond. Further the respondent argued that considering that the
complainant is mentally challenged the applicant would jeopardise the
interests of administration of justice by direct and indirect
interference.
The
applicant on the other hand argued that applicant was a suitable
candidate for bail.
The
allegations though serious would not cause the applicant to abscond
since he is eager to stand trial and prove his innocence.
The
applicant's defence being that the complainant is his girlfriend
and that she is mentally sound. The applicant's argument is that
they had consensual sexual intercourse and that he was being
prosecuted for impregnating his girlfriend.
The
applicant was prepared to relocate to an alternative address to alley
the State's fears of interference and was willing to abide by bail
conditions deemed necessary.
In
applications of this nature the court has to strike a balance between
the applicant's right to his individual liberty as provided for in
the Zimbabwean Constitution and the interests of administration of
justice.
The
applicant is presumed innocent till proven guilty by a competent
court of law and such an applicant is entitled to bail as a matter of
right unless there are compelling reasons why such applicant ought
not to be admitted to bail.
Section
50 of the Constitution is instructive. See State
v Felody Minsaka
HB55-16.
In
other words were the interests of administration of justice anchored
on the societal interest to have matters prosecuted to their logical
conclusion is not at risk the applicant should not be denied bail.
In
circumstances where bail conditions are decisive and ensure the
enjoyment of both the right to liberty and interests of
administration of justice then the court should lean more in favour
of granting bail.
The
factors which fall for consideration have to be cumulatively
considered so as to come up with an informed and appropriate
decision.
The
factors that fall for consideration include (but are not limited) the
following:
1.
The nature of allegations.
2.
The strength of the State case.
3.
The likely sentence in the event of conviction of the applicant.
4.
The nature of defence of the applicant.
5.
The risk of abscondment.
6.
The risk of interference with witness.
7.
The risk of committing further offences on bail.
8.
The individual personal circumstances.
It
is important to note that the seriousness of the offence on its own
is not good enough to deny an applicant who will stand trial bail.
In
this case the applicant's defence is that had consensual
intercourse with the applicant and that the applicant is mentally
stable. He is just being charged for impregnating his girlfriend. The
applicant is prepared to relocate to a place out of town in Nyazura
to avoid direct conduct with the complainant so as to minimise
dangers interference.
The
applicant is also prepared to report regularly at the police station
so as to minimise the risk of abscondment. In fact when he was
advised that the police were looking for him the applicant
surrendered himself to police. This is an indication of not having an
inclination to abscond.
MAKONESE
J
made pertinent remarks in S
v Sibanda
HH11-19
when he stated:
“In
this matter there are no compelling reasons to deny bail pending
trial. All applicants are of fixed abode. The interests of justice
will not be compromised if the applicants are granted bail. The
possibility of abscondment is not a real possibility as there is no
evidence at all placed before the court indicating the applicants
have an inclination or propensity to abscond. The state may not rely
on speculation and conjecture as grounds for opposing bail.”
The
remarks aptly apply with force in the present case when one considers
that the applicant surrendered himself to the police. That conduct is
not consistent with likelihood of abscondment.
Further
State's fears of interference and abscondment can be cured by
conditions.
In
fact the State fears of interference are quite speculative as they
are based on the complainant's mother having gone to court in the
company of the accused's mother.
These
people are neighbours who stay in the same high density suburb and
their connection on approach to court by the two mothers cannot be
imputed to be interference by the accused. The State's fears in
this case are not ones which appropriate bail conditions cannot
guarantee.
This
is a matter where there are no militating or compelling grounds
warranting denial of bail to the applicant.
Accordingly
the applicant is admitted to bail.
It
is ordered that:
Applicant
be and is hereby admitted to bail on the following conditions:
1.
He deposits $200-00 with the Clerk of Court Mutare Magistrates Court.
2.
He resides at Harmat Farm Claire Primary School, Nyazura until the
matter is finalised.
3.
He reports at Nyazura Police Station once every week on Fridays
between 6:00am and 6:00pm.
4.
He does not interfere with any State witnesses including the
complainant and does not interfere with investigations.
Mvere
Chikamhi Mareanadzo,
applicant's legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
