CHEDA J: This is an application for bail pending appeal.
Applicant
lodged this application on the 4th day of September 2008. The application was consented to by the
Attorney General's Office, Mr. E Moyo. On a cursory perusal of the documents before
me, my suspicion was aroused by the fact that the appellant's co-accused had
heavily implicated him in this offence but the respondent seemed to have either
overlooked or deliberately ignored this crucial fact.
On
the 26th October 2008, I directed that the matter be argued by both
counsel in chambers. The matter was
indeed argued on the 19th November 2008. Mr. Moyo
again confirmed his position that he was of the view that the respondent did
not have a strong case against applicant even if he is implicated by his
co-accused. In view of his stance which
was suspicious to me I ordered that he files warned and cautioned statements of
applicant and his co-accused, Victor Teera.
This he did and on perusal I discovered that Victor Teera gave a detailed
statement outlining applicant's involvement in the murder. This, to me, is one of the strong factors to
be considered in determining bail for applicant.
While
our law indeed operates on the time honoured principle of the presumption of
the innocence until proven guilty there are certain factors which when
taken into account should deprive a suspect of his freedom if such freedom will
result in him failing to attend trial.
The enquiry should always be whether or not applicant's release will
result in him absconding or standing trial.
In the present matter, the fact that his co-accused implicates him will
in my view result in him absconding in order to avoid his co-accused's
testimony against him.
If this occurs, the ends of justice
will be defeated.
In addition, I am extremely
concerned by the lack of diligence and cavalier attitude of Mr. Moyo in this matter. While as an officer of the court is expected
to be fair in his representation of an accused or suspect's interest such “fairness”
should not leave the court with an impression that he is applicant's second
legal counsel. My observations, lest I
am wrong is based on his casual dismissal of applicant's co-accused's statement
implicating applicant in this serious matter.
Where there is such an allegation the respondent should be concerned and
be eager to test the truthfulness or otherwise of the said allegation as
opposed to the readiness to believe applicant's allegation without more. Such test can only be done if applicant stands
trial which in this case is most unlikely to attend in light of his co-accused's
warned and cautioned statement
These
courts can not and should not be used to rubber-stamp decisions which appear to
be riddled with all the ingredients of impropriety, all in the name of the
state being dominus litis in criminal cases.
For the above reasons I am of the
view that if applicant is admitted to bail, he will not stand trial.
Accordingly the following order is
made:-
1. The application is dismissed.
2. Mr.
E. Moyo should not be involved in this matter again.
Advocate S.K.M. Sibanda and partners, applicant's legal
practitioners
Attorney General's
Office, respondent's legal practitioners
