Alfred Mangwiro and Ronald Chigwida v The State

### Preamble
1
HH 410-13
CRB B 934/13
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ALFRED MANGWIRO

and

RONALD CHIGWIDA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUREMBA J.

HARARE, 4 November 2013, 11 November 2013 & 14 November 2013

Bail application

Ms N.E Muzarakuzi, for applicants

Ms C Maheya, for respondent

MUREMBA J.	This is an application for bail pending trial. The applicants are facing three counts of robbery, two counts of unlawful entry into premises and one count of theft as defined in sections 126, 131 and 113 of the Criminal Law (Codification and Reform) Act, [Cap 9:23] respectively.

The first two counts of robbery were allegedly committed on 27 July 2013 and 5 September 2013 in Alexandra Park during the night. The third count of robbery, two counts of unlawful entry and the one count of theft were all committed on 14 September 2013 in Vainona and Mt Pleasant areas between 2015 hours and 2100 hours.

Bail applications are made in terms of section 117 of the Criminal Procedure and Evidence Act (chapter 9:07)  which reads:

(1) Subject to this section and section 32, a person who is in custody in respect of an offence shall be entitled

to be released on bail at any time after he or she has appeared in court on a charge and before sentence is imposed,

unless the court finds that it is in the interests of justice that he or she should be detained in custody.

(2) 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—

(a) 	where there is a likelihood that the accused, if he or she were released on bail, will—

(i) 	endanger the safety of the public or any particular person or will commit an offence referred to in the First Schedule; or

(ii) 	not stand his or her trial or appear to receive sentence; or

(iii)	 attempt to influence or intimidate witnesses or to conceal or destroy evidence; or

(iv) 	undermine or jeopardise the objectives or proper functioning of the criminal justice system, including the bail system; or

(b) 	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.

In the case of State v Makamba S 30-04 it was held that the primary considerations in assessing submissions in a bail application are:

whether the applicant will stand trial.

whether the applicant will interfere with the investigation of the case against him or temper with the prosecution witnesses.

whether the accused will commit offences when on bail.

other considerations the court may consider good and sufficient.

In their application the applicants raised three grounds, namely:

(1) they will not abscond trial

(2) they  will not interfere with witnesses or evidence

(3) they will not commit further offences if granted bail

They further argued that they have a strong defence as there is no evidence linking them to the offences. No identification parade was ever conducted.

In terms of s 117(6) of the Criminal Procedure and Evidence Act [Cap 9:07] an accused who is charged with robbery involving the taking of a motor vehicle should, in an application for bail, adduce evidence which satisfies the judge or magistrate that exceptional circumstances exist which in the interests of justice permit his or her release.

Pursuant to this provision the applicants submitted that:

they undertake that they will not abscond.

they are of fixed abodes, have families and interests in Zimbabwe. They will submit to any conditions of bail which the court may impose.

they genuinely believe that they are innocent and will not abscond until they prove their innocence even though the charges are serious.

they are in a position to pay $100 each towards bail.

In a bail application the court is required to play a balancing act between the liberty of the accused on one hand and the protection of the administration of justice on the other. See State v Makambasupra.

In terms of s 70(1) (a) of the Constitution of Zimbabwe Amendment (No. 20) Act, 2013 an accused is presumed innocent until proven guilty. As long as it is shown that his admission to bail will not prejudice the interests of justice he or she should be admitted to bail. The onus is on the applicant to show on a balance of probabilities that his admission to bail will not prejudice the interests of justice – see State v Hussey 1991 (2) ZLR 198 (SC). On the other hand the prosecutor should place before the court cogent reasons, supported by information and evidence in opposing the applicant’s application. Bald assertions are not enough. For bail to be denied, there must be a real danger or possibility that due administration of justice will be prejudiced if the accused is granted bail.

I will now deal with the grounds raised by the applicants.

That they will not abscond

In State v Chikamba and Another HB 120-03 it was held that in determining whether or not the accused will stand trial the court should be guided by the following factors amongst others;

the nature of the crime

the severity of the punishment that may be imposed in the event of a conviction

the probability of a conviction

the accused’s personal circumstances

The applicants submitted that they are married men who are self-employed. They co-operated with the police during investigations and never attempted to flee. They are of fixed abodes as they reside in Glen View 1 and 8 respectively. There are no grounds for believing that if they are granted bail they will be a flight risk and become fugitives from justice. The State case is very weak as there is no evidence linking them to the commission of the crimes. As such, there is nothing to induce them to flee.

In rebutting this ground the respondent’s counsel led oral evidence from the Investigating Officer who stated that both applicants are not married. They are self- employed. He said after their arrest they were placed on remand and were remanded in custody at Harare Remand Prison. On one occasion he requested for them from prison as he was still carrying out investigations. He took them to Harare Central Police Station. While there, the applicants attempted to escape. They were suddenly seen on top of the roof trying to find a way to escape. Fortunately or unfortunately for them they were re-arrested. In State v Phiri HB 121 – 03 it was held that a suspect who attempts to escape from the police is more likely to abscond and as such the courts should not take a chance in admitting him to bail.

The Investigating Officer also stated that the applicants now reside in South Africa. They only come to Zimbabwe occasionally. They grew up in Glen View and that is where their parents reside. To support this, the Investigating Officer produced two asylum seeker temporary permits for the two applicants. Their expiry date is 9 December 2014. The permits allow the applicants to work and study in South Africa. The Investigating Officer said with all these factors, he was strongly opposed to the applicants being granted bail. He said they are a flight risk as they have somewhere to escape to, moreover none of them has a family, a job or property to stop them from leaving Zimbabwe. In any case, they even attempted to flee when they were at Harare Central Prison. All this evidence by the Investigating Officer went unchallenged by the applicants’ counsel. The counsel instead, suggested to the Investigating Officer that stringent conditions of bail could be put in place to stop the applicants from leaving Zimbabwe. The Investigating Officer remained unpersuaded. Given the evidence of the Investigating Officer, I will say the respondent managed to show that there is a real danger or possibility that the applicants are indeed a flight risk.

The respondent through the Investigating Officer’s evidence also managed to show that it has a strong case against the applicants. Although no identification parades were conducted, there is other evidence that links the applicants to the offences. Without running the risk of delving into the triable issues I will comment on the evidence of the Investigating Officer.  The Investigating Officer said on 14 September 2013 at 2100 hours the applicants trespassed into the yard of the complainant who resides at number 13 Lynn Road, Vainona, Borrowdale. The alarm went off thereby causing the complainant to go out of the house to investigate. When he realised that there were intruders in his yard he fired some warning shots and at the same time phoned the police. Apparently the applicants who had left their Ford Laser motor vehicle parked some distance away from the complainant’s house ran to their vehicle. Coincidentally, the police officers who had come to attend the scene saw the applicants leaving the complainant’s house and running towards their car. The police shot at the car resulting in a deflated tyre. The second applicant was shot at the back of his shoulder. Consequently he lost control of the vehicle which landed in a ditch. The applicants got out and disappeared into the night. When the police officers searched the car they recovered the first applicant’s birth certificate and an affidavit in his name pertaining to the sale of a certain motor vehicle. There was also the second applicant’s asylum seeker temporary permit. A star pistol, a laser light and some small items which had been stolen by means of a robbery from number 24 Sandrigham Drive, Alexandra Park were also recovered from the same car.

The Investigating Officer said he was then allocated the case and commenced investigations. The investigations led him and his team to the owner of the Ford Laser, one Martha who resides in Kuwadzana. She happens to be the mother of the second applicant. Martha together with her husband, the father of the second applicant confirmed that the Ford Laser was their car which they had given to the second applicant to use. The second applicant’s parents said their son i.e. the second applicant had reported to them that one of his friends had stolen the car from him.  His mother said she had not believed him and had reported him to the police at Machipisa Police Station for theft of a motor vehicle. So at the time the Investigating Officer went to see the second applicant’s parents, the second applicant was already detained at Machipisa Police Station.

The Investigating Officer then went to see the second applicant at Machipisa police station. Upon being interviewed he made a confession to all the five offences and implicated the first applicant and two other people as his accomplices. The Investigating Officer said he examined the second applicant and noticed that he had a bullet lodged at the back of his shoulder. Using the second applicant’s phone the Investigating Officer and his team managed to lure and arrest the first applicant but the other accomplices escaped. The Investigating Officer said both applicants confessed to the crimes freely and voluntarily and then led them to all the houses where they had committed these crimes. The Investigating Officer said at that stage they were not even aware of a case of robbery which was committed on 14 September 2013 along Bargate road, Mt. Pleasant against the complainant who was walking home carrying some groceries. They only got to know about it when the applicants confessed to it. They (police) then checked with Borrowdale Police Station who confirmed that such a robbery had indeed occurred and been reported to them. So had it not been for the applicant’s confession about this particular robbery (count 1) the Investigating Officer and his team would not have known about it.

The Investigating Officer said they recovered two Samsung galaxy S3 cell phones from Ximex Mall upon indications which were made by the applicants. These items had been stolen from the house of the complainant in count 4 during a robbery. The applicants also led them to one Kudakwashe Chitate in Glen Nora C from whom they recovered two laptops, a Toshiba and a Sony and a DVD player. All these items were stolen from 24 Sandringham road, Alexandra Park during a robbery (count 4). The applicants also led the Investigating Officer and his team to one Amos Mutedza from whom they recovered some jewellery which the applicants had sold to him. The jewellery was stolen from No. 24 Sandrigham Drive again.

The foregoing shows clearly how the applicants were arrested and how they are linked to the charges. The State thus managed to show that it has a strong case against the applicants. Moreover all the five counts are very serious cases. If the applicants are convicted they are likely to get very stiff and lengthy custodial sentences. There is a real danger or possibility that this again might induce the applicants to abscond.

That the applicants will not interfere with witnesses or evidence

It was submitted that the applicants have no contacts whatsoever with state witnesses since they reside in Glen View whilst the complainants reside in Borrowdale, Mt Pleasant and Vainona areas. In disputing this ground, the Investigating Officer stated that some of the witnesses are relatives while some are friends of the applicants. The second applicant’s parents who gave him the Ford Laser they were allegedly using during the commission of these offences reside in Glen View. In fact if the second applicant is granted bail he will be staying with his parents. One Kudakwashe Chitate resides in Glen Norah ‘C’. He is a brother to the first applicant.  Some stolen property was recovered from him. Amos Mutedza from whom the police recovered jewellery worth US$20 000.00 is a friend of the applicants. The Investigating Officer showed that under the circumstances there was a strong likelihood of interference with witnesses or evidence by the applicants if they are granted bail. The assertion by the respondent is well grounded since these witnesses have close relationships with the applicants. Moreover they reside in and around Glen View where the applicants reside.

That the applicants will not commit further crimes

It was submitted that the applicants have no records of previous convictions and they have never lived a dishonesty life in the past. There is nothing to show that they will commit crimes if granted bail.

In rebutting this ground the respondent through the Investigating Officer indicated that the applicants have previous convictions. He said when the applicants committed the current offences they had just come from prison. He said the first applicant served a total of 8 years at Bindura Prison and Hurungwe Prison while the second applicant served a total of 11 years at Chikurubi Maximum Prison and at Hurungwe Prison. However he could not furnish the court with their previous convictions. He said the Central Criminal Bureau does not have these records. In his view, the records were not transmitted to Central Criminal Bureau. He said efforts to get the records from the courts where the applicants were convicted also proved fruitless. It appeared to him that the applicants had used pseudo names hence the records could not be found. The Investigating Officer said given more time he could proceed to the prisons where the applicants served to get the records. However both counsels made submissions that this case had dragged on for quite some time and there was need for finality. They asked the court to make a determination with the evidence that is available. The Investigating Officer said that there is a strong likelihood that the applicants can commit further crimes if granted bail. The Investigating Officer buttressed his point by saying that two of the applicants’ accomplices are still at large. If granted bail the applicants are likely to team up with their accomplices and continue to commit crimes.

The foregoing shows that it could not be established whether or not the applicants have previous convictions.

Conclusion

Upon considering the totality of the submissions presented before the court it is apparent that the offences that the applicants are alleged to have committed are of a serious nature. The State has a very strong case against them. If the applicants are convicted they are likely to get lengthy custodial sentences. The applicants have asylum permits from the Republic of South Africa. All these factors make them a flight risk. They even attempted to escape from Harare Central Prison. Their accomplices are still at large. Chances of the applicants teaming up with their accomplices, interfering with evidence and committing further crimes cannot be ruled out.

The applicants failed to show on a balance of probabilities that their admission to bail will not prejudice the interests of justice. In addition, what they adduced as exceptional circumstances are just ordinary circumstances. Exceptional circumstances are circumstances outside the ordinary, though value judgment is used to determine them. On the other hand, the respondent managed to place before the court, cogent reasons supported by information and evidence in opposing the applicants’ application.

It is for these reasons that the application for bail pending trial is dismissed.

Chingeya-Mandizira. Applicant’s legal practitioners

The Attorney General’s Officer, for the respondents