This
is an application for bail on the basis of changed circumstances.
The
applicant is standing trial in the Regional Magistrates Court on one count of
armed robbery and one count of illegal possession of a firearm, in
contravention of section 4(1) as read with section 4(2)(b) of the Firearms Act
[Chapter 10:09].
The
State has, so far, led evidence from eight witnesses. The trial magistrate,
unfortunately, died before completing the trial.
The
applicant, having been granted bail by the High Court, had that decision
reversed by the Supreme Court under case number SC40-09 on the grounds that -
1.
Acting on information, the police had raided, and arrested the applicant at a
city hotel. Upon searching the room he occupied with his wife they recovered an
unlicensed pistol from a bag containing his personal documents
2.
The pistol was subjected to forensic ballistic tests which established that the
spent cartridges recovered from the robbery scene had been fired from the
pistol in question.
3.
The accused lives in South Africa but resides at 2A Tarlington Close, Avondale
whenever he visits Zimbabwe.
4.
It was a notorious fact that people from this country can easily jump the
border into other countries without any passport.
On
the basis of such observation, the Supreme Court concluded that there was a
high risk of abscondment, and, consequently, denied the applicant bail.
He
now seeks to be admitted to bail on the basis that there are changed circumstances
which now entitle him to bail. It was submitted on his behalf that the changed
circumstances are as follows -
1.
That the evidence so far from the eight State witnesses is so weak as to
entitle the applicant bail. It was stated that the recovered pistol was wrongly
described in the police diary as Exhibit 10, giving the impression that the
recovered weapon was planted by the police in his bag.
2.
That previously the applicant had not offered title deeds as security but was
now offering his uncle's title deeds as security.
3.
He has now submitted affidavits from his wife and uncle showing that he has
strong connections in this country although he is still working in South Africa
where he has established a home, and has a house in that country. In proof
whereof, he has submitted his passport showing that he pays frequent visits to
this country.
Despite
the complainants' failure to identify their assailants, the State led evidence
from various State witnesses to the effect that the spent cartridges were
recovered from the scene of the robbery. Acting on information, the accused was
arrested at a city hotel. The room, in which he was booked together with his
wife, was searched, and a pistol recovered from his bag.
Both
the applicant and his wife signed to acknowledge the recovery of the pistol
from his bag.
The
State claims it has forensic evidence linking the recovered spent cartridges to
the pistol recovered from the applicant's bag. The trial magistrate, however,
passed away before he could hear that evidence.
Having
regard to the above rudimentary summation of the facts, it cannot be said, by
any stretch of the imagination that the State case has weakened in any way from
the time the applicant was denied bail by the Supreme Court. If anything, the
State has proffered evidence which tends to strongly link the applicant to the
commission of both crimes.
I
have given a very truncated summation of the facts because I do not wish to be
seen to be predetermining the case, for to do so will be to usurp the functions
of the trial court. It is the trial court which is best suited to determine
this case, after hearing and weighing all the evidence before it.
The
trial magistrate's death was a sad, unfortunate, development, but no one should
be allowed to take advantage of that occurrence to circumvent the ends of
justice. Justice must be pursued to its logical conclusion despite the trial
magistrate's demise.
For
the foregoing reasons, I am satisfied that there are no changed circumstances
warranting the granting of bail to the applicant.
It is accordingly ordered that the application
for bail be and is hereby dismissed.
