Tinashe Mahachi v The State

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HCC11-22
TINASHE MAHACHI
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TINASHE MAHACHI

Versus

THE STATE

HIGH COURT OF ZIMBABWE

MUZOFA J

CHINHOYI 30 June & 8 July 2022

Bail pending appeal

T.Thomas , for the applicant

D.T Dhamusi, for the State

MUZOFA J: On 17 May 2022 , the applicant was convicted by the magistrate  sitting at Chinhoyi on nine  counts  of robbery as defined in 126 of the Criminal Law Codification and Reform Act), [Chapter 9:23].The applicant was convicted together with his co accused who is not before the court. All counts were treated as one for purposes of sentence. He was sentenced to 6 years imprisonment with 3 years suspended on condition of good behaviour.

Dissatisfied by the conviction, the applicant instructed hi legal practitioners to note an appeal against conviction. The appeal was filed on 27 May 2022. Following on the noting of appeal, the applicant’s legal practitioners filed this application for bail pending appeal.

The applicant’s case is that the trial court misdirected itself in convicting him in circumstances where his defence of an alibi was not disproved by the State and that the danger of mistaken identity was not completely excluded in this case.

The application was opposed. The State opposed the application on the basis that the accused’s alibi was disproved by the witnesses who positively identified the applicant as one of the perpetrators of the offences. It would therefore be in the interests of justice if bail is denied and the applicant prosecutes his appeal whilst serving his sentence.

In an application for bail pending appeal, the applicant no longer enjoys the presumption of innocence until proved guilty which right is guaranteed in s 70 (1) (a) of the Constitution of Zimbabwe (2013). Similarly following a conviction, the applicant is stripped of the right to be released on bail on reasonable conditions pending appeal  which right is accorded to an unconvicted prisoner under s 50 (6) of the Constitution. A convicted person and unconvicted person are treated differently. This is because the trial court has pronounced itself on the case. His/her liberty has been lawfully curtailed by a court of law. Otherwise the only rights that a convicted person enjoys are those set out in s70 (4) and (5) of the Constitution. These are rights to access the record of proceedings and the right to have the matter reviewed by a higher court including the right to appeal to a higher court.

The application is based on s123 (1) (b) (ii) of the Criminal Procedure and Evidence Act [Chapter 9:07 ‘ the Act’ .The section provides an instance where a person convicted and sentenced by a magistrates court may be admitted to bail pending the determination of his appeal by the High Court. The section does not set out the issues for consideration is such an application. The legislature has only given guidance on the factors to be taken into consideration in an application for bail pending trial under s117 of the Act.

Since the admission to bail is no longer a right, the legislature has placed the burden of proof on the applicant to show on a balance of probabilities that it is in the interests of justice that he be released on bail in terms of s115 C (2) (b) of the Act. Over the years Courts have developed the main consideration in such an application whose thrust is to balance the proper administration of justice and the applicant’s liberty. The prospects of success are the major consideration that usually tilt the court’s decision. Besides the prospects of success, the court also considers the likelihood of abscondment and likely delay before the appeal is heard. See Sv Dzawo 1998 (1) ZLR 536(S), Schliz v S HH 234/17.

The prospects of success must be real and not imaginary. It is so because the prospects of success are closely linked to the likelihood to abscond. Where there are no prospects of success, no motivation exists to abscond. The opposite is equally true.

Bearing in mind the applicable principles in such an application l shall consider the prospects of success in this case. As already stated, the applicant appeals against conviction only.

The offences that the applicant was convicted of were committed at around the same time in the same community.

The State alleged that on 25 July 2020 around 0200hours at Plot 26 Chipfundi Lions Den, the complainant in the first count who is a pastor was at his house with members of his church. They were asleep. The applicant in the company of his two co accused persons forced the door open and gained entry into the house. They held torches and were armed with machetes, iron rods and knives. They threatened the occupants in the house even assaulting some of them. They then took away groceries, cell phones and cash. This incident accounted for the first count to the fourth count.

Thereafter the applicant and his co accused proceeded to Plot 30 Chipfundi, Lion’s Den still armed with their weapons. At Plot 30, when they arrived, the applicant and his co accused assaulted the complainants and took away cellphones and cash. This second incident accounts for the fifth to the ninth counts.

The applicant denied the charges. His defence was that on the day the offences were committed he was in Chegutu. He worked for one Gozhora.His defence was that of an alibi.

Where an accused person raises the defence of an alibi, he is only required to give a proper foundation for the defence as to where he was and if he was with anyone for the State to properly investigate the defence. The accused must raise the defence as soon he is arrested or during investigations. In my view, where the alibi is raised during the course of the court proceedings it becomes irrelevant. The State cannot institute further investigations. It is necessary for the State to establish when the defence of an alibi was raised. This can only be done by leading evidence from the investigating officer.

No onus lies on the accused to prove his defence. This position is settled. See Morris v S SC 28/98.In assessing whether the State has discharged its onus beyond a reasonable doubt, the court must also consider if the State has disproved the alibi raised by the accused.

In its judgment the court focused on the issue of identification. It analysed what transpired and how the complainants could not be mistaken on the identification of the applicant. The court did not even address the defence of an alibi raised by the applicant. There are no reasons for rejecting the defence in the judgment. It is trite that failure to give reasons for a decision is a misdirection.

Even if the trial court did not address the issue there is ample evidence that raises doubt if this was a safe conviction. The accused called a defence witness one Gozhora who confirmed working with the applicant. Even if it was not his duty to prove his defence the evidence was placed before the court anywhere .Gozhora confirmed that the applicant worked for him. His duties were to buy maize for resale in Chegutu. Under cross examination, which l must comment was very shallow the State seemed to a make a veiled concession that there could a chance that the applicant would work during the day and in the night would be in Lion’s Den to commit the offences. That would certainly be stretching the imagination too far.

Gozhora could not remember the exact dates he was with the applicant.  However his evidence was relevant to the extent that it confirmed that the applicant was his employee. It also confirmed that in July the applicant was sourcing and buying maize for him for resale. They would sleep on top of the sacks after buying the maize. I do not think Gozhora can be blamed for not recalling the dates, people do not keep a diary of what they do on certain dates unless there are special incidents to mark the dates.

In my view, there are no reasonable prospects of success in this case. Even on the issue of identification it is questionable that the complainants positively identified the applicant. Misheck Mashiri said the accused was putting on a face mask. It was at night and the perpetrators had torches on their heads. This means the light illuminated more to where the torches were focused rather on the person putting it on.

The complainants at Plot 26 are the ones that identified the applicant. Only one from Plot 30 could identify the applicant. The rest could not. I am cognisant of the fact that the complainants and the applicant stayed in the same community. However this offence was committed at night. One witness actually said he went to school with the applicant so he knew him very well. They were at school in primary and obviously some time had lapsed.

Bearing in mind that the applicant raised the defence of an alibi that was not considered by the trial court and the questionable identification I find no reason to deny the applicant bail.

The applicant has discharged the onus on him.

Accordingly the following order is made.

The application for bail appeal be and is hereby granted.

The applicant shall deposit the sum of ZW$20 000 with the Clerk of Court Chinhoyi Magistrates Court.

The applicant shall report once a week at C.I.D Chinhoyi on Fridays between 6am and 6pm until the matter is finalized.

The applicant shall reside resides at Windhoek Farm, Mhangura.

Matarutse and Partners, applicant’s legal practitioners.

National Prosecuting Authority, respondent’s legal practitioners.