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HH127-10 - REGINALD MAPIKA vs THE STATE

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Bail-viz kidnapping.

Kidnapping-viz section 93(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
Bail-viz changed circumstances.
Bail-viz interference with police investigations.
Bail-viz bail pending trial re pending completion of police investigations.
Bail-viz bail pending trial re alibi defence.
Bail-viz evidence of identification re positive identification by the complainant.
Procedural Law-viz rules of evidence re evidence of identification.
Bail-viz bail pending trial re set down of trial date.
Bail-viz bail pending trial re flight risk.
Bail-viz bail pending trial re abscondment iro prospects of long-term imprisonment.
Procedural Law-viz rules of evidence re documentary evidence.
Procedural Law-viz rules of evidence re evidence of identification iro alibi.
Bail-viz strength of the State case.
Procedural Law-viz rules of evidence re digital evidence iro text messages.

Bail re: Robbery, Armed Robbery, Robbery Committed in Aggravating Circumstances and the Doctrine of Recent Possession


The applicant is a police officer stationed at ZRP Bulawayo Central Police Station but is currently in remand prison on allegations of kidnapping as defined in section 93(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Bail re: Changed Circumstances iro Approach, Subsequent Bail Applications & Alteration or Variation of Bail Conditions

The applicant was denied bail by OMERJEE J on 19 May 2010. He now applies for bail on the basis of changed circumstances.

The previous application was dismissed on the basis of the gravity of the offence, and that the applicant was interfering with investigations through an unidentified third party. The anonymous third party is alleged to have sent threatening text messages to the Investigating Officer. It is also alleged that there has been an attempt to corrupt the Investigating Officer by offering him a bribe of US$45,000=. The State has since tendered in evidence a schedule of the alleged text messages together with an affidavit from the Investigating Officer. 

In his affidavit, the Investigating Officer confirms that he is still being interfered with.

When the court denied the applicant bail it urged the police to wind up their investigations. It further directed the State to investigate the applicant's alibi defence to the effect that he was at work when the offence was allegedly committed. As a result of those further investigations, the State has now tendered a duty roster from the applicant's work place tending to show that he was not at work at the material time.

The State has also tendered a statement by Detective Inspector Zuze stating that the applicant was positively identified by the complainant.

The applicant's trial is imminent as the docket has since been sent to the Magistrate's Court for set down of the trial date.

It was further submitted by the defence that the applicant is a flight risk as the prospect of a long term of imprisonment may prompt him to flee from the court's jurisdiction.

The defence has countered that the end of justice will not be compromised because no link has been established between the sender of the alleged text messages and the applicant. It has been pointed out that the text messages might have been sent by someone who does not have the interest of the applicant at heart.

Counsel for the applicant sought to explain the duty roster by saying that the applicant was not marked present on the duty roster because his group had arrived late at work on that day.

That may very well be so but the fact still remains that documentary evidence at the State's disposal clearly marks him as being absent at the material time. The State has further pointed out that the applicant was no longer stationed at Bulawayo at the time he claims to have been on duty at that station. At this juncture, such evidence can only serve to strengthen the State Case; if, however, the applicant has an innocent explanation; that is for the trial court to determine.

As things stand right now it is clear that events have changed for the worse for the applicant. For that reason, the application cannot succeed.

It is accordingly ordered that the application be and is hereby dismissed.

BHUNU J: The applicant is a police officer stationed at ZRP Bulawayo Central Police Station but is currently in remand prison on allegations of kidnapping as defined in section 93 (1) of the Criminal Codification and Reform Act [Cap 9:23]. The applicant was denied bail by OMERJEE J on 19 May 2010. He now applies for bail on the basis of changed circumstances.

The previous application was dismissed on the basis of the gravity of the offence and that the applicant was interfering with investigations through an unidentified third party. The anonymous third party is alleged to have sent threatening text messages to the investigating officer. It is also alleged that there has been an attempt to corrupt the investigating officer by offering him a bribe of US$45 000.

The state has since tendered in evidence a schedule of the alleged text messages together with an affidavit from the investigating officer. In his affidavit the investigating officer confirms that he is still being interfered with.

When the Court denied the applicant bail it urged the police to wind up their investigations. It further directed the state to investigate the applicant's alibi defence to the effect that he was at work when the offence was allegedly committed. As a result of those further investigations the state has now tendered a duty roster from the applicant's work place tending to show that he was not at work at the material time.

The state has also tendered a statement by detective inspector Zuze stating that the applicant was positively identified by the complainant.

The applicant's trial is imminent as the docket has since been sent to the magistrates' court or set down of the trial date.

It was further submitted by the defence that the applicant is a flight risk as the prospect of a long term of imprisonment may prompt him to flee from the court's jurisdiction.

The defence has countered that the ends of justice will not be compromised because no link has been established between the sender of the alleged text messages and the applicant. It has been pointed out that the text messages might have been sent by someone who does not have the interest of the applicant at heart. Counsel for the applicant sought to explain the duty roster by saying that the applicant was not marked present on the duty roster because his group had arrived late at work on that day.

That may very well be so but the fact still remains that documentary evidence at the state's disposal clearly marks him as being absent at the material time. The state has further pointed out that the applicant was no longer stationed at Bulawayo at the time he claims to have been on duty at that station

 At this juncture such evidence can only serve to strengthen the state case. If however the applicant has an innocent explanation that is for the trial court to determine. As things stand right now it is clear that events have changed for the worse for the applicant. For that reason the application cannot succeed.

It is accordingly ordered that the application be and is hereby dismissed.

 

 

 

 

 

 

 

 

Mabulala & Motsi, the applicant's legal practitioners.

The Attorney General's Office, the respondent's legal practitioners
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