Antony Moyo v The State

### Preamble
1
HB 272/22
HCB 394/22
---------


ANTONY MOYO

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 28 OCTOBER 2022 & 3 NOVEMBER 2022

Application for bail pending trial

N. Sibanda, for the applicant

K.M. Guveya, for the respondent

DUBE-BANDA J:

This is an application for bail pending trial. The applicants is charged with the crime of robbery as defined in section 126 (1) of the Criminal Law [Codification and Reform] Act [Chapter 9:23]. It being alleged that on 4 October 2022 at about 0600 hours, the applicant and accomplices some already accounted for and others still at large hatched a plan to rob a security company which transports gold from How Mine to Fidelity Printers. They were armed with rifles and pistols, forced the security guards out of the vehicles, disarmed them and forced them to lie down. Thereafter forcibly took four firearms, rounds of ammunition and 11, 9 kilograms of gold bullion. The total value of property stolen was USD$595 000 00 [ZWL 386 750 000.00].

In support of his bail application, the applicant filed a bail statement and three supporting affidavits. Mr Sibanda counsel for the applicant submitted that the applicant’s defence is an alibi. It was contended that at the time of the alleged commission of the robbery he was at his home with his family. He was not at the scene of crime. It was submitted that his arrest was a result of the fact that he is the owner of the motor vehicle that was used in the commission of the crime of robbery. It was contended that at the time of the robbery he had lent his vehicle to his uncle who was in control of the vehicle at the material time. It is contended further that he was arrested by the police officers while at a mechanic’s place at Hillside, Bulawayo.

Counsel submitted that the applicant has discharged the onus of showing that exceptional circumstances exist which in the interests of justice permit his release on bail pending trial. It was argued that the applicant has shown that he did not participate in the crime of robbery; and that the State has not rebutted his defence of alibi; and that he has shown that at the material time his vehicle was under the control of his uncle. Counsel argued that the applicant is a good candidate to be released on bail pending trial and urged this court to accede to this application.

This application is opposed. In support of its opposition the respondent filed two affidavits deposed to by a member of the investigating team and Identification Parade Notes. Mr Guveya counsel for the respondent submitted that the applicant is a flight risk. Counsel submitted further that the applicant has not demonstrated the existence of exceptional circumstances which in the interests of justice permit his release on bail. It was contended that the State has a strong prima facie case against the applicant, more particularly that he was positively identified as one of the robbers. Counsel urged this court to dismiss this bail application.

While an arrested person is generally entitled to be released on bail if a court is satisfied that the interests of justice so permit, the reverse applies where a person has been charged with a crime referred to in Part 1 of Schedule 3  of the Criminal Procedure and Evidence Act [Chapter 9:07] (CP & E Act).   In such a case section 117(6) of the CP & E Act provides that a court is obliged to “order that the accused be detained in custody until he or she is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the court that exceptional circumstances exist which in the interests of justice permit his or her release”. These grave offences are subject to a more stringent bail regime. It then follows that the bar for granting bail in the crime of robbery involving the use of a firearm is lifted higher by the legislature. This is what the applicant has to contend with in this matter.

The facts of this case show that the vehicle that was used in the commission of the crime and abandoned at the scene belongs to the applicant. The police aver that after the commission of this crime the applicant and his co-accused and accomplices escaped arrest by the police. The applicant went into hiding and was subsequently arrested by swift police follow ups.  He was arrested at a garage in Hillside, Bulawayo after escaping from the crime scene. Again it is averred that the applicant was positively identified at the Identification Parade as one of the armed robbers.

Mr Sibanda attacked and assailed the manner in which the Identification Parade was conducted, submitting that it was stage managed with a predictable outcome. Generally, counsel also attacked and assailed the police investigations of this matter, arguing that there is a deliberate ploy to prejudice the applicant in this application.  The simple answer to a plethora of issues raised by counsel is that this is not a trial. I am not called upon to determine the guilt or innocence of the applicant. That will be the function of the trial court. This is a bail application. It has its own rules on admissibility of evidence and weight to be attached thereto. I am entitled to take into account the apparent strength or weakness of the case against the applicant as far as that could be determined at this stage. For the purposes of this application I accept that the applicant was positively identified as one of the armed robbers and that his vehicle was used in the commission of this armed robbery and abandoned at the scene of crime.

For the purposes of this bail application there is evidence that links the applicant to the crimes he is charged with, though much will depend at the trial on how that evidence fits with the other pieces of the jigsaw. The facts and evidence in this case constitutes a strong prima facie case of applicant’s involvement in the crime preferred against him.

However I accept that the presumption of innocence operates in favour of an applicant even where there is a strong prima facie case against him. See: S v Essack 1965 (2) SA 161 (D) 162C. But in determining the question of bail, too much emphasis cannot be placed upon the presumption of innocence. In S v Fourie 1973 (1) SA 100 (D) 101 (G) it was remarked as follows: “It is a fundamental principle of the administration of justice that an accused person stand trial and if there is any cognizable indication that he will not stand trial if released from custody, the court will serve the needs of justice by refusing to grant bail, even at the expense of the liberty of the accused and despite the presumption of innocence.” This is a text book case where the presumption of innocence must give way to the proper administration of justice.

The respondent contends that if released on bail the applicant will interfere with police investigations. In support of this contention it was submitted that the police are yet to recover the stolen firearms, gold bullion and to arrest and account for the escaped accomplices. I accept that the State is not entitled to hold an accused in custody solely for the purposes of investigations. However the courts cannot easily let out suspected offenders charged with Part 1 Schedule 3 crimes.  Particularly in this case where there are just too many firearms and rounds of ammunition at large, i.e. those used by the robbers and those forcibly taken from the security guards. On the facts of this case I take the view that this is a case where this court can factor into the equation the fact that the police must be given time and space to account for the fire-arms, ammunition and the accomplices currently at large without the risk of interference by the applicant. The risk of interference must just be eliminated. This is a case where the interests of the applicant must be subordinated and give way to the public interest. I agree that if released on bail the applicant will interfere with police investigations. My view is that releasing the applicant on bail will prejudice the proper administration of justice.

The State contend further that armed robbery cases are now on the increase in Bulawayo and across the nation. It is argued further that if the accused person is admitted to bail, such will cause the community to lose confidence in the justice delivery system. I take judicial notice of the fact that there has been an upsurge in cases of armed robbery in the country. Such an increase in armed robbery cases induces fear and infringes upon the right to security of the public and is disruptive and destructive. In determining a bail application the courts cannot ignore this upsurge of this particular type of crime. Section 117 (2) (b) of the Criminal Procedure and Evidence Act [Chapter 09: 7] (CP & E Act) provides thus:

The refusal to grant bail and the detention of an accused in custody shall be in the interests of justice where one or more of the following grounds are established - where in exceptional circumstances there is the likelihood that the release of the accused will disturb the public order or undermine public peace or security.

Therefore the refusal of bail to protect society is justified in certain extreme circumstances as provided in section 117(2) (b) as read with section 117 (3) (e) of the CP&E Act. The empowering provisions say in considering whether the release of an accused may disturb the public order or undermine public peace or security a court is enjoined to take into account the following factors: whether the nature of the offence and the circumstances under which the offence was committed is likely to induce a sense of shock or outrage in the community where the offence was committed; whether the sense of peace and security among members of the public will be undermined or jeopardised by the release of the accused; whether the release of the accused will undermine or jeopardise the public confidence in the criminal justice system; and any other factor which in the opinion of the court should be taken into account.

In casu the applicant and his accomplices who are not part of this application are alleged to have hatched a plan to commit robbery armed with rifles and pistols. The security guards were forced out of the vehicles, disarmed and forced to lie down. They forcibly took four firearms, rounds of ammunition and 11. 9 kilograms of gold bullion. These are very serious allegations. My view is that on the facts of this case the release of the applicant will disturb the public order or undermine public peace or security and will also undermine or jeopardise the public confidence in the criminal justice system. His release on bail is likely to induce a sense of shock or outrage in the community and the sense of peace and security among members of the public will be undermined or jeopardised. His release on bail will disturb to the core the public confidence in the criminal justice system.

I think it is fair to say that the case sought to be made out by Mr Sibanda, is that the circumstances are exceptional because even though the charges against the applicant are extremely serious, the State’s case is, on a proper analysis, very weak. I do not agree.  My view is that on the evidence, facts and circumstances of this case, I find that the State has a strong prima facie case against the applicant. His vehicle was used in the commission of the crime of robbery and abandoned at the scene of crime, and he was positively identified as one of the robbers. For the purposes of this application these facts are sufficient for a finding that the State has a strong prima facie case against the applicant.

The applicant is facing very serious charges. If convicted, he is most likely going to be sentenced to a lengthy custodial term, thus he will be tempted to abscond and not stand trial. The temptation for the applicant to abscond if granted bail is real. See: S v Jongwe SC 62/2002. In this case applicant will not stand his trial if released on bail. He will just abscond.

The applicant is not only a flight risk but his release on bail given the serious allegations against him of use of fire arms in the alleged commission of the offence of robbery will undermine the objective and proper functioning of the criminal justice system and the bail institution. This is an extreme case where the court can justifiably take into account the fact that the police need time and space, without any risk of interference to investigate this matter with a view of accounting for the firearms, ammunition and the accomplices still at large. In the circumstances the release of the applicant on bail will disturb to the core the public confidence in the criminal justice system. The cumulative effect of these facts constitutes a weighty indication that bail should not be granted.

On the basis of all the evidence and facts placed before court, I am of the view that the applicant has failed to show any exceptional circumstances which, in the interests of justice will permit his release on bail. It will therefore not be in the interests of the administration of justice that the applicant be released on bail pending trial.

In the result, the application for bail be and is hereby dismissed and applicant shall remain in custody.

It is so ordered.

Tanaka Law Chambers, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners