TAGU
J:
This
is an application for bail pending trial. The applicant is facing 9
counts of Robbery as defined in section 126 of the Criminal Law
(Codification and Reform) Act [Chapter
9:23.]
The
application is strongly opposed by the respondent.
The
circumstances as given in the State papers were that the applicant,
and in the company of Ignatius Mudzingwa, Kelvin Kudzayi Chiwana,
Shyleen Nyamweda, Franklin and Mutirikwa robbed nine complainants
between 12 September 2014 and 15 January 2015 at various places in
the city of Harare. This was a group of robbers that were travelling
in different cars robbing people. On the 16 January 2015 detectives
received information about the where about of the accused persons who
were responsible for the robberies. Acting on that information the
detectives located the applicant and his accomplices at St Marys,
Chitungwiza. Noticing that they had been cornered, the applicant and
his accomplices sped off in their get-away car. The Police fired
shots resulting in Ignatius Mudzinge, Kelvin Kudzayi Chawana and
Shyleen Nyamweda being shot dead. The applicant was shot on the back
and survived. Franklin and Mturikwa escaped.
Upon
the applicant's arrest various property, namely, One Goodman DVD/CD
Player, Generic Mini Projector and charger, Nintendo WII Controller
S/N LEH 111008100, Two Disc Lights, Remote Control, Joystic
Controller and Power Pack for the projector, Six WII Video Discs,
Five Connecting Disco Lights, AV Cables, Various ladies new clothes,
Blackberry Curve IMEI Number 357256042193802, Econet Cell phone IMEI
Number 360253025619754 and a Samsung GT 1080 cell phone IMEI Number
358037035535822 were recovered.
The
respondent and the investigating officer who swore to an affidavit
opposed to the applicant being granted bail on the basis that the
offences applicant is facing are serious such that upon conviction a
long custodial sentence is called for, that some property is yet to
recovered, that there is propensity to commit further offences, that
his other two accomplices are still at large and that he would
interfere with investigations.
In
his submissions the applicant is raising a defence that he was
erroneously linked to the commission of the offences. That he was
never near the alleged places where such offences were committed. He
stated that on the day he was arrested he was in the company of his
friend Kelvin Kudzayi Chawana who came to pick him at his house at
0800 in Old Highfield. They later met Franklin who is Kelvin's
friend. They proceeded to Machipisa Shopping Centre where they
decided to accompany Kelvin to Chitungwiza who then called his girl-
friend Shyleen Nyamweda. At Machipisa one Muturikwa came with a bag
containing various properties which I mentioned above. When Ignatious
was talking to his girlfriend in Chitungwiza, the police arrived and
ordered Ignatious to stop. The police shot Ignatious dead. Kelvin
drove of the car and the police shot at them killing Shyleen and
Kelvin. Applicant was then shot from his back while Franklin and
Mturikwa escaped. His only friend was Kelvin and he did not know the
rest. He claimed to have been shot while seated in the car and was
not running away.
The
principles which are followed in an application for bail pending
trial are set out in s 117 of the Criminal Procedure and Evidence Act
[Chapter
9:07].
The same principles were summarized in a number of cases. See Makamba
v The
State
SC 30/04, Aitken
and
Anor v
Attorney
General
1992 (1) ZLR 249.
In
the case of Makamba
v The State (supra),
the principles were stated as follows:
“1.Whether
the applicant will stand trial in due course;
2.
Whether the applicant will interfere with the investigations of the
case against him or temper with the prosecution witnesses;
3.
Whether the applicant will commit offences while on bail;
4.
Other considerations the court may deem good and sufficient.”
In
casu,
the applicant does not deny being at the scene of the arrests. His
association with the other robbers is not consistent with a person
who was not involved in the robberies. The fact that applicant was
shot at the back shows that he was running away as well. The offences
are serious and attract a long custodial sentence. The fact that his
other accomplices Franklin and Mturikwa are at large means that if
released on bail applicant may team up with them and commit further
offences. The number of counts also shows a high degree of propensity
to commit further offences. I agree with the respondent's
submissions that his degree of involvement is a fodder for the trial
court. In my view, therefore, the applicant is not a good candidate
for bail. The recovered property links him to the robberies.
Wherefore,
in the result, the application for bail pending trial is dismissed.
Muunganirwa
& Co,
applicant's legal practitioners
National
Prosecuting Authority,
respondent's
legal practitioners.
