Gilmore Manuwere v The State

### Preamble
1
HCC16-22
B197/22
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GILMORE MANUWERE

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUZOFA J,

CHINHOYI, 12 & 19 September 2022

Application for bail pending appeal

Applicant in person

G.T Dhamusi for the respondent

MUZOFA J: The applicant appeared before the Magistrate sitting at Chinhoyi Court charged jointly with six other accused persons facing three counts of robbery and one count of theft from a motor vehicle in contravention of s126 (1) (a)  and s113 of the Criminal Law (Codification and Reform Act ), [Chapter 9:23] respectively. The applicant was acquitted on the first count and convicted on two counts of robbery and theft from a motor vehicle. The applicant was cited as the seventh accused person.

He was sentenced as follows;

Count 2 - 5 years imprisonment of which one month was suspended on condition of restitution.

Count 3 – 4 years imprisonment of which 12 months imprisonment was suspended on condition of restitution.

Count 4 - 5 years imprisonment of which one month imprisonment was suspended on condition of restitution.

The sentence in count 2 and count 4 to run concurrently. The total effective sentence is 7 years 11 months.

Following the conviction, the applicant noted an appeal in person after being granted leave to prosecute the appeal in person. He appeals against both conviction and sentence. After noting the appeal, the applicant filed this application for bail pending appeal.

In terms of s 115 C (2) (b) of the Criminal Procedure & Evidence Act [Chapter 9:07] where an accused person has been convicted of an offence, he or she bears the burden of showing on a balance of probabilities that it is in the interests of justice that such accused be released on bail.

The primary considerations in an application for bail pending appeal have been laid down in a number of cases. In  Machangana v State HH 16/16  the court set out the approach  in dealing with an application for bail pending appeal and  referred to a number of case authorities including  the leading cases of S v Williams 1980 ZLR 466 AD and S v Dzawo 1988 ZLR  (1) ZLR 536 (S). The main considerations are the prospects of success, the risk of abscondment and the interest of justice.

The applicant’s liberty must be balanced with the proper administration of justice. At this stage the applicant has lost the presumption of innocence. This is the rationale for casting the burden on him or her to show that it is in the interest of justice that he be admitted to bail pending appeal. The prospects of success on appeal probably stand out as the most influential aspect in the determination of such an application. Where the prospects of success are bright the lesser the incentive to abscond and the converse is equally true.

As already stated the applicant is not legally represented. He noted the appeal in his personal capacity. The grounds of appeal are inelegantly set out. There are nine grounds of appeal against conviction and three grounds of appeal against sentence. Despite the inelegancy in the articulation of the grounds of appeal the issues raised are easily discernible. The exercise to properly formulate grounds of appeal has remained elusive even to trained legal minds. This is an area that requires proper consideration to come up with concise grounds of appeal that raise the relevant issues.

I deal with the individual counts and assess the prospects of success. Since the applicant was acquitted on the first count, I will consider the counts as they appear on the charge sheet for convenience.

Count Two

The state alleged that on 25 December 2019, the applicant together with his co accused persons met the complainant Sheunesu Makombe who was standing by his friend’s house. They unlawfully used force and threats against the complainant to induce submission and forcibly took US$38.00, a brown wallet containing a CBZ bank card, Barclays Bank card, a driver’s licence , national identity card a Techno K7 cellphone and  a ZUPCO tap card .

Following investigations the applicant’s Techno K7 cellphone, brown wallet and ZUPCO tap card were recovered from the fourth and fifth accused persons.

The complainant gave evidence and stated that he was attacked by a group of people around 0100 hours. He only managed to identify the third and fourth accused persons. The only other evidence was from the investigation officer who recovered some of the property. Nothing was recovered from the applicant in respect of the robbery from the complainant.  The investigation officer said they arrested the sixth accused who led them to a house at Whitecity, Chinhoyi where the first, second and seventh accused, that is the applicant were arrested. The sixth accused actually exonerated the applicant and the first accused.

In its judgment the trial court analyzed the evidence in respect of each count to come to its decision. In respect of the second count it noted that the complainant’s property was recovered from the third accused who implicated the rest of the accused persons. The finding is factually incorrect and reliance on that evidence was legally wrong. As already stated the applicant was not implicated by the third accused person. There was no confession by the third accused implicating the applicant. Infact, he was exonerated by the sixth accused. Even if there was a confession by the third accused that confession would be inadmissible. In terms of s259 of the Criminal Procedure and Evidence Act no confession made by any person shall be admissible as evidence against another person.

The court misdirected itself and there are prospects of success on the second count.

Count three

There are no prospects of success on this count.

The allegations are that on the 25th of December 2019 the applicant and his co accused persons approached the complainant’s motor vehicle a VW registration number AED 6529 which was parked at Chinhoyi Staff Quarters following a breakdown. This was around 0000 hours. The complainant had left his brother in the motor vehicle while he went to seek for assistance. The brother must have been stone drunk and was fast asleep. The applicants and his co accused persons approached the motor vehicle and stole various property including an Exide battery size 639 with code 06C19W, a wheel spanner, yellow and black hammer, a petrol pump and a blue and black satchel.

The battery and the jack were recovered from the applicant’s mother who confirmed that the items belonged to the applicant. The complainant positively identified the recovered property. The applicant had no questions for the complainant under cross examination. The only reasonable inference is that he did not dispute that the property belonged to the complainant. Although he said he was a mechanic he was given the items by someone, he could  not give sufficient details to the police to test the veracity of his averment. It can only be concluded that the applicant was not telling the truth.

The trial court cannot be faulted for the finding that the applicant was part of the people who robbed the complainant. The conviction is unassailable.

Count Four

The allegations are that the applicant and his co accused persons unlawfully assaulted Kingsley Siyareva and forcibly took a black wallet which had US$10 -00, a black and orange satchel, and Nissan March car keys.

The complainant could not identify any of his assailants. None of the property belonging to the complainant was recovered from the applicant. There was no evidence linking the applicant to the offence.

Although the Magistrate convicted the applicant on this count, the judgment does not support the conviction. The relevant paragraph dealing with the identity of the perpetrators noted as follows,

‘It is accused 4 who was also found with the stolen property for the other counts/charges among others. Accused 4 was also implicated by accused 3 together with accused 5 where recoveries were made from them at their same house (sic). Accused 3 had been implicated by accused 6 as indicated earlier’

Despite that observation where the applicant is not linked at all to the offence. The Magistrate continued,

‘This clearly shows that the accused persons were on a rampant using violence and threats with machetes and forcibly stealing from complainants including the complainant. All this direct and indirectly link (sic) all the accused persons to the commission of the offence’

Obviously this was a misdirection, there was only a very strong suspicion that the applicant was involved in the commission of the offence. A conviction cannot be sustained by a strong suspicion, there must be proof beyond a reasonable doubt that he indeed committed the offence.

The respondent conceded that there was no evidence against the applicant on the fourth count. The concession was properly taken.

From the forgoing then, the appeal against conviction has bright prospects on the second and fourth counts. There are no prospects of success in respect of the third count.

Since the applicant also appeals against sentence, the court must consider if there are prospects of success in respect of the sentence imposed on the third count.

Theft from a motor vehicle is a serious offence and the applicant would not expect any sentence other than a custodial sentence. The appeal against sentence has no prospects of success.

Since the appeal against both conviction and sentence on the third count is doomed, it would certainly incentivize the applicant to abscond thereby compromising the proper administration of justice. The applicant has therefore failed to show that it is in the interest of justice that he be admitted to bail pending appeal.

Accordingly the following order is made.

The application for bail pending appeal be and is hereby dismissed.

National Prosecuting Authority, the respondent’s legal practitioners.