This was an application for bail by Accused 2 pending the
resumption and completion of trial.
Accused 2 was jointly charged with Accused 1 with murder as
defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter
9:23].
The allegations against them were that on 28 September
2015, in rural Bikita, Masvingo, one or other of them unlawfully caused the
death of one Farai Manyanga (hereafter referred to as “Deceased”) by hitting him with logs on the head multiple times
thereby inflicting a depressed skull fracture and cervical spine subluxation,
with the intention of killing him, or, despite realising the real risk or
possibility that their conduct might cause death, continued with it.
The State's case was that on the day in question, the deceased
had been drinking a traditional brew at some homestead in the company of
several other villagers. The two accused were not part of that party. But from
time to time Accused 1 would come with a 5 litre container to buy beer. The two
accused were drinking in the comfort of Accused 1's homestead, some distance
away. Later on at night, the deceased left the beer place for his homestead. He
passed through Accused 1's homestead. The two accused were there. Acting in
concert, they attacked the deceased with logs several times on the head causing
him severe injuries.
Sometime before that, there had been an altercation between
Accused 1 and the deceased.
The deceased bled from the attack. He lost consciousness.
The two accused carried him from the scene and dumped him in his kitchen hut at
his homestead. The deceased was bleeding all the way. He left a trail of blood.
He was discovered the following morning. He was lying unconscious in his
kitchen hut. Neighbours and relatives were alerted. The deceased was ferried to
a clinic and later on to hospital. A post mortem examination concluded that the
cause of death was head injury and cervical spine subluxation. Spine
subluxation was explained to mean a partial dislocation of the bones of the
neck which had led to depressed breathing.
Both accused pleaded not guilty.
In his confirmed warned and cautioned statement, Accused 1
admitted striking the deceased on the head with a log during a fight that had
ensued between them over an unresolved dispute. In his Defence Outline, he also
admitted fighting with the deceased but made no mention of the log.
Accused 2, in both his warned and cautioned statement and
the Defence Outline, completely dissociated himself from the deceased's death.
He denied having fought with him or having assisted Accused 1. He stated that
it was Accused 1 who had struck the deceased four times with a log on the head
as they fought over an unresolved dispute.
The State intended to call seven witnesses. The defence
accepted the outlines of the evidence of some of them. Over two days, the court
heard the viva voce evidence of three witnesses. One of them was Simbisai
Nemaringa (“Simbisai”). He was one
of the villagers that had been at the beer drink the previous day. He said he
had passed through Accused 1's homestead the following morning as he was going
back to the beer place for the dregs. At Accused 1's homestead, he noticed that
the sand was sodden with blood and water. The trail started in some shed at the
compound and led away from the homestead. He enquired of the blood from Accused
2 who was at the scene at the time. Accused 1 was inside the kitchen. Accused 2
professed ignorance. Accused 1 then came out. He started covering the spoor of
blood using his booted feet. Accused 2 advised Accused 1 to use a tree branch
instead. In the process, several other villagers arrived. First to arrive were
two men. One of them was Thulani Bvekwa [“Thulani”]
whom the State had lined up as a witness. The other was Lawrence Masuka [“Lawrence”].
According to Simbisai, Thulani and Lawrence had trailed the
spoor of blood from the deceased's homestead right up to where everybody else
was now gathered at Accused 1's homestead.
Unfortunately for the State, by the time of the trial, Thulani
Bvekwa was no longer available. He was reported to be in South Africa. The
State then intended to switch over to, and rope in Lawrence Masuka. He was
reported to be still in the country but in some farming area somewhere in
Rusape. The matter was stood down to give the police time to trek him down.
Eventually, the matter was postponed for a week as the police needed more time.
When the matter resumed after the week the police had still
not located Lawrence. Their leads had drawn a blank. Logically, the State
applied for a postponement of the matter sine die as there was no telling how
long the police would take to trace Lawrence Masuka. The defence had no
objection to the postponement. Therefore it was granted.
But Counsel for Accused 2 immediately launched an
application for bail pending the resumption and continuation of trial. His
argument was that at all times after his initial remand, Accused 2 had been on
bail. It had been a year exactly. It was only after he had been indicted for
trial that his bail had been terminated in terms of section 169 of the Criminal
Procedure and Evidence Act [Chapter 9:07] [hereafter referred to as “the CP & E Act”].
Further submissions on behalf of Accused 2, as I understood
them, and in my own words, were that despite his facing a serious charge, and
despite the long wait, Accused 2 had religiously complied with his bail
conditions and had ultimately attended trial when it had begun. He was still
going to go through the trial. He had no intention to abscond. However, given
that there was no longer any assurance that the trial would be concluded any
time soon owing to the unavailability of a witness, or witnesses, that the
State considered important for its case, it was in the interests of justice
that he be released on bail so that he should not be severely prejudiced by the
delay that inevitably was to ensue.
Counsel also argued that the evidence against Accused 2, in
relation to the commission of the offence, was weak. Even though he had been
present during the incident, he had not made any common cause with Accused 1.
He had not been part of the altercation between Accused 1 and the deceased. He
had not been part of the unresolved grudge between the two. On the contrary,
when they had fought on the night in question, he had tried to restrain them.
Unfortunately, he had failed. He had shouted for help from the neighbours. He
had even left the two as they were fighting to go and alert a Bvekwa. However,
and unfortunately, the fatal blow had already been delivered. In those
circumstances, counsel's argument concluded, Accused 2's prospects for an
acquittal were quite bright. As such, there was no inducement for him to
abscond.
Counsel for the State opposed the application. His
argument, again in my own words as I understood it, was that the application
had to be considered in the light of the fact that evidence had now been led
against the accused persons. The position had altered from the situation that
they had been in when bail had initially been granted before trial. Now the
accused had had a glimpse of the weight of the evidence against them. That was
inducement enough for them to want to abscond.
Of the quality of the evidence against Accused 2 in
particular, counsel for the State conceded that there was no direct eye
witness. However, the evidence that had been led, particularly from Simbisai
Nemaringa, was so damning as to make Accused 2, at the very least, an accessory
after the fact. Among other things, he had participated in, or given guidance
on how the evidence of the commission of the offence, i.e. in the form of the
spoor of blood from Accused 1's homestead to that of the deceased, could
effectively be obliterated. The sole purpose had been to conceal the crime.
Furthermore, Accused 2 had been in the company of Accused 1 throughout. He must
have had common purpose with Accused 1 in assaulting the deceased. It was that
assault that had eventually led to the deceased's death. Thus, State counsel
concluded, given the evidence led already, there was a strong inducement for
Accused 2 to want to abscond, if released on bail, as he now appreciated the
peril awaiting him.
That, basically, was the case for bail before the court.
In my view, in an application for bail pending trial, the
starting point is to consider the dispensation brought about by the new
Constitution in May 2013. Section 50(1)(d) of that Constitution says that any
person who is arrested must be released, unconditionally, or on reasonable
conditions, pending a charge or trial, unless there are compelling reasons
justifying their continued detention. It is now a fundamental human right and
freedom that an arrested person be charged or tried out of custody. That he or
she may remain incarcerated until the charge or trial is rather the exception.
There ought to be some compelling reasons justifying it. This, in my view, is
an exceptionally high burden. And it is now provided for in no less a law than
the Constitution.
The Constitution does not say, directly, on who this
onerous burden lies. But, manifestly, it must be the State. That, in my view,
and from a purposive approach, is clearly the spirit of the Constitution. But
the Criminal Procedure and Evidence Act has recently been amended, effective 17
June 2016 (see the Criminal Procedure and Evidence Amendment Act, No. 2 of 2016).
Section 115C has been inserted. It first states that in any
application, etc. where, among other things, the grant or denial of bail is in
issue, the grounds specified in section 117(2), being grounds upon which a
court may find that it is in the interests of justice that an accused person
should be detained in custody until he or she is dealt with in accordance with
the law, are to be considered as the compelling reasons for the denial of bail
by a court.
In terms of section 117(2) of the Criminal Procedure and
Evidence Act, grounds upon which a court may deny bail are the likelihood that
if released on bail:
1. The accused will endanger the safety of the public, or
of any particular person; or
2. The accused will commit an offence referred to in the
First Schedule [i.e. an offence at common law other than bigamy, compounding,
contempt of court, etc., or a statutory offence the minimum penalty for which
exceeds six months without the option of a fine, and any conspiracy,
incitement, attempt or being an accessory after the fact, to commit those
crimes]; or
3. The accused will not stand his or her trial or appear
for his sentence; or
4. The accused will attempt to influence or intimidate
witnesses or to conceal or destroy evidence; or
5. The accused will
undermine or jeopardise the proper functioning of the criminal justice system,
including the bail system; or
6. In exceptional circumstances, there is a likelihood that
the release of the accused will disturb the public order or will undermine
public peace or security.
As counsel for the State correctly points out, these
factors have been the traditional grounds for denying bail. But the amendment
has reversed the onus of proof from the State to the accused in respect of
certain crimes. In terms of section 115C(2)(a)(ii)B of the Criminal Procedure
and Evidence Act:
“Where an accused who is in custody in respect of an
offence applies to be admitted to bail…, before a court has convicted him or
her of the offence…, the accused person shall, if the offence in question is
one specified in…, Part II of the Third Schedule, bear the burden of showing,
on a balance of probabilities, that exceptional circumstances exist, which, in
the interests of justice, permit his or her release on bail.”
Murder tops the list of the Third Schedule offences in
respect of which the power to admit persons to bail is excluded or restricted.
Counsel for the State, whilst not directly addressing the
provisions of section 50 of the Constitution aforesaid, argued or insinuated
that, in casu, the stage at which Accused 2 was making his bail application was
no longer that of pre-charge or pre-trial. The accused had already been
charged. Their trial had already commenced. The accused now knew, or ought to
be appreciating, the danger of conviction given the weight of the evidence
against them. At the very least, Accused 2 was an accessory after the fact. If
convicted, he would be liable to the same punishment as Accused 1, the actual
perpetrator. That punishment would be no less than a term of imprisonment.
However, the weight of the evidence aside, counsel for the
State's argument seemed to me to run counter to the ethos or principle or
spirit of the new Constitution. In terms of it, the emphasis is on the right of
accused persons to personal liberty. Among other things, one should not be
deprived of one's liberty without just cause (section 49(1)(b)). Once arrested
and not released, a person is entitled to be brought to court within
forty-eight hours or else he or she must be released immediately, unless a
competent court has authorised his or her continued detention (section 50(2)).
It does not matter that the forty-eight hours may lapse on a Saturday, Sunday
or a public holiday.
Probably to emphasise the importance of the right to
personal liberty, parts of section 50 of the Constitution empower anybody to
bring an application for a habeas corpus in respect of someone who, among other
things, is being detained illegally, so that they may be released or brought
before the court for the lawfulness of their detention to be justified. To cap
it all, any person who has been illegally arrested is entitled to compensation
from whosoever might have been responsible, except if there is a law that has
been passed to protect judicial officers or other public officers acting
reasonably and in good faith.
But section 50(6) speaks directly to the situation of
Accused 2 herein. It says any person who is detained pending trial for an
alleged offence, and is not tried within a reasonable time, must be released
conditionally or unconditionally. Furthermore, in terms of section 70(1)(a) of
the Constitution, an accused person is presumed innocent until proved guilty.
In casu, Accused 2 may now have been charged. His trial may
now have begun. Certain evidence may now have been led against him. Some of
that evidence might be incriminatory. But in the eyes of the law he is still
innocent. And given the provisions of the Constitution, there must exist
compelling reasons why his right to liberty, which was terminated by the
indictment for the very trial which he was patient enough to wait for, must not
be restored.
In this matter, the constitutionality of section 169 of the
Criminal Procedure and Evidence Act [Chapter 9:07], and the aforesaid amendment
(section 115C of the Criminal Procedure and Evidence Act [Chapter 9:07]; see the
Criminal Procedure and Evidence Amendment Act, No. 2 of 2016), was not raised,
let alone argued. So I express no further view.
But counsel for Accused 2 stressed something in section 169
of the Criminal Procedure and Evidence Act [Chapter 9:07]. The section reads:
“169 Termination of
bail on plea to indictment in High Court
If the accused is indicted in the High Court after having
been admitted to bail, his plea to the indictment shall, unless the court otherwise directs, [Counsel's emphasis]
have the effect of terminating his bail, and he shall thereupon be detained in
custody until the conclusion of the trial in the same manner in every respect
as if he had not been admitted to bail.”
Counsel's point was that even after an accused's person
trial has commenced and the bail has been terminated, the court is still
reposed with the discretion to release them from detention conditionally or
unconditionally. That has always been the case. It is the task of the court to
strike a balance between the interests of the accused, should they remain in
detention until the trial is concluded, and the administration of justice,
should they be released on bail.
In considering whether, if released on bail, there is a
likelihood that an accused will not stand trial, section 117(3)(b) of the of
the Criminal Procedure and Evidence Act [Chapter 9:07] directs the court to
take the following factors into account:
(i) The ties of the accused to the place of trial.
(ii) The existence and location of assets held by the
accused.
(iii) The accused's means of travel and his or her
possession of access to travel documents.
(iv) The nature of the offence or the nature and gravity of
the likely penalty.
(v) The strength of the case for the prosecution and the
corresponding incentive of the accused to flee.
(vi) The efficacy of the amount or nature of the bail and
enforceability of any bail conditions.
(vii) Any other factor which, in the opinion of the court,
should be taken into account.
These factors are considered conjunctively - not
disjunctively.
In the present case, none of them was canvassed by counsel
to any extent. But I am not about to plough the same field as ploughed by this
court before when Accused 2 was released on bail pending trial a year ago. The
same factors were necessarily considered then. The court must have been
satisfied that in spite of the risk involved, Accused 2 was a proper candidate
for bail. That decision has been vindicated. The accused has waited patiently
for his trial.
Probably the one major difference between now and then is
that amendment, in terms of which, instead of the State showing that there are
compelling reasons for denying an accused person bail, the onus is now on him
to prove, on a balance of probabilities, that exceptional circumstances do
exist to grant him the bail, even if he may be facing a Third Schedule offence.
The other major consideration is that at this stage the
accused have now had a glimpse of the weight of the evidence against them.
Paragraph (v) above refers to the strength of the case for the State and the
corresponding incentive on the accused to flee.
However, in this case, where Accused 2 has shown that soon
after his initial remand, a year ago, he was released on bail; that he has
religiously complied with the bail conditions; that but for the indictment for
this trial he would have still been out of custody; that the reason why the
trial may now not be completed expeditiously is that the State cannot locate
one or other of its witnesses; that the only evidence led against him so far
does not implicate him directly, but merely places him at the scene of the
offence – something not in issue but was common cause – and, finally, that the
evidence of being an accessory after the fact seems tenuous, I am satisfied
that, on a balance of probabilities, he has proved that exceptional
circumstances exist which, in the interests of justice, permit his release on
bail.
There is one other detail.
Thulani Bvekwa was the State's first choice witness between
him and Lawrence Masuka. It is only because he is now out of the country that
Lawrence is now being preferred. In his Defence Outline, Accused 2 indicated,
and his counsel clarified during argument, that on the night in question, it
was, in fact, to Thulani Bvekwa that Accused 2 had run to report the raging
fight between Accused 1 and the deceased. This aspect is still to be tested. It
may never be tested if Thulani Bvekwa does not come to testy. This may affect
the overall quality of the evidence in the whole trial.
In the circumstances, Accused 2 shall
immediately be released on bail pending the resumption and completion of his
trial. The bail conditions shall be the same as those previously imposed when
he was released on bail pending trial.
