Alexio Chinzara v The State

### Preamble
1
HH 434-21
B 1411/21
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ALEXIO CHINZARA

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHIKOWERO J

HARARE, 6 August 2021 & 27 August 2021

Bail Application

D. Muzawazi, for the applicant

J. Mugebe, for the respondent

CHIKOWERO J: The applicant, charged with one count of robbery (armed) as defined in s 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] “the Code”, applies for bail pending trial.

The annexure to the Request for Remand form sets out the circumstances as follows:

On 25 June 2021 and at around 9:00 am, the applicant, in connivance with four others, hatched a plan to commit robbery. Armed with a pistol and knives, they drove to 872 Rydle Ridge, Harare. They had removed the number plates from their get-away vehicle, a silver Toyota Wish. The gang confronted the two complainants-girls aged sixteen and twenty-four years old. They demanded money. Not only did they assault the complainants, they also bound their victims’ hands and legs. Thereafter, the gang ransacked the whole house. They stole the following property:

55 inch Hisense television set serial number unknown

Home theatre

Lenovo laptop

Wifi modem

Bunch of garage keys

2 locks

2 kg vanilla biscuits

2 x 2kg Tongaat Huletts brown sugar

10 kg Elegant white rice

280 grammes vanilla glucose sweets

Laptop power pack

Electric shocker

Newchaobaper hair clipper

3kgs premium quality pasta

Blackberry tablet serial number 134416031569

Black cap

Blue and yellow wrapping cloth commonly known as “Zambia cloth”

Brown sofa cover

Small yellow blanket

White and grey duvet

Itel P36 cellphone IMEI numbers 353946118849063/35394618849071

Chelsea blue tracksuit jacket

2 x DFI 5 litres Redan petrol coupons serial numbers 501628025 and 501628031

The accused and his accomplices loaded the stolen property into their motor vehicle. They

sped off from the scene of crime.

On the same day and at around 1:00pm police detectives from Criminal Investigations Department Homicide, Harare received information indicating that Dennis Mateta, who is a person on the police wanted list, and other known armed robbers had been seen at Kuwadzana 4 Shopping Centre, Harare.

The detectives quickly conducted a surveillance at the Shopping Centre. They saw a silver Toyota Wish registration number AEW 1154 parked at an open space near the Shopping Centre. On observing the detectives the gang drove towards Kuwadzana 1 Shopping Centre. A high speed chase ensued. The detectives fired warning shots. The applicant and his accomplices ignored the shots. This prompted the detectives to immobilise the get-away vehicle by firing at the front right wheel. That tyre having been deflated, the vehicle stopped. The occupants got out of the vehicle. They fled in different directions. The detectives continued the chase. They continued firing warning shots. Undeterred by the several warning shots, the applicant and his accomplices persisted in flight. Three out of the five gang members were eventually apprehended. These were Jealous Nyakuno, Michael Nhira and the applicant. It was only because they were shot that Nhira and the applicant were finally apprehended. The police had to shoot the applicant on both legs. Even when cornered Nhira still attempted to attack the armed police officers using an okapi knife. Dennis Mateta and the 5th accomplice made good their escape.

The police conducted a search in the get-away vehicle. The following property was recovered:

2 kg vanilla biscuits

2 x 2 kg Tongatt Huletts brown sugar.

10 kg Elegant white rice

280g vanilla glucose sweets

Laptop power pack

Electric shocker

Newchaobaper hair clipper

3kg premium quality pasta

Blackberry tablet serial number 134416031569

Black cap

Blue and yellow wrapping cloth commonly known as “Zambia cloth”

Brown sofa cover

Small yellow blanket

White and grey duvet

Itel P36 cellphone IMEI numbers 353946118849063/353946118849071

Chelsea blue tracksuit jacket

2 DFI 5 litres petrol coupons serial numbers 501628025 and 501628031

The police interviewed the applicant and his two accomplices. The trio indicated that they had stolen the property, now recovered, from the complainants in the course of a robbery committed at a residence in the Rydale Ridge area earlier in the day.

Jealous Nyakuno, who was not injured, led the police to the scene of the crime. The two complainants confirmed that they had, earlier in the day, been robbed by a 5 member gang. The complainants had already reported the crime at the Zimbabwe Republic Police Whitecliffe Base.

The complainants positively identified the recovered property as theirs.

On being further interviewed, the applicant and his accomplices indicated that Dennis Mateta had disposed of the unrecovered property. They also implicated him as the one who wielded the pistol during the commission of the offence.

THE ONUS LIES ON THE APPLICANT

Robbery involving the use of a firearm (commonly referred to as armed robbery) is an offence listed in para 3 part 1 of the Third Schedule of the Criminal Procedure and Evidence Act [Chapter 9:07] “the CPEA”.

Section 117(6)(a) of the CPEA is applicable in this application. It reads, in relevant part:

“117 Entitlement to bail

(1)……...

(2)………

(3)………

(4)………

(5)………

Notwithstanding any provision of this Act, where an accused is charged with an offence referred to in –

“(a) Part 1 of the Third Schedule, the judge…hearing the matter shall order that the accused be detained in custody until he…is dealt with in accordance with the law, unless the accused, having been given a reasonable opportunity to do so, adduces evidence which satisfies the judge… that exceptional circumstances exist which in the interests of justice permit his.. release”.

Part 1X of the CPEA, which deals with the issue of bail, does not set out factors which would guide a court in determining what exceptional circumstances are exist which in the interests of justice permit an accused’s release on bail. In respect of establishing compelling reasons for the denial of bail, where the onus is on the prosecution, the Legislature has set out grounds and factors (though not exhaustive) which the court should consider in deciding whether there are compelling reasons for the denial of bail.

For the purposes of the present matter, it seems to me that I can advert to the same grounds and factors set out in s 117(1)-(4) in deciding whether the applicant satisfies me that exceptional circumstances exist which in the interests of justice permit his release. The significant difference is that the onus (on a balance of probabilities) lies on the applicant. Indeed, this is how the parties approached this application. I consider that to be the correct approach. IS THERE A LIKELIHOOD THAT THE APPLICANT IF HE WERE RELEASED ON BAIL, WILL ENDANGER THE SAFETY OF THE PUBLIC OR ANY PARTICULAR PERSON OR WILL COMMIT AN OFFENCE REFERRED TO IN THE FIRST SCHEDULE?

The following factors are in applicant’s favour. He does not have any previous convictions. There are no other pending criminal proceedings against him. He is still presumed to be innocent of the charge which forms the subject of this bail application. Against him are the following. The allegations place him among five alleged robbers, armed with a pistol and knives, who assaulted, threatened and bound up the complainants and proceeded to ransack the whole house before stealing numerous items of property. Preparatory to driving to the scene of crime, the get-away motor vehicle’s registration plates had been removed. Of robbery, this court said in S v Madondo 1989(1) ZLR 300 H:

“Robbery is an inherently serious offence. It usually involves premeditation, criminal resolve and purpose, brazen execution, an attack on a human victim with an attendant risk of that person’s right to personal security and forceful dispossession of whatever property the victim has. It is also a terrifying and degrading experience. The victim is injured in his person and his property. The robber acts with contempt and callousness. It is therefore proper to regard robbery as a particularly reprehensible form of criminal behaviour.”

That this particular robbery occurred is not in dispute. That most of the stolen property was recovered from the vehicle wherein the applicant was an occupant is common cause. That the arresting details fired numerous shots, inclusive of those that deflated the front right tyre of the get-away vehicle, injured Nhira and hit the applicant on both legs is not in dispute.

Dennis Mateta, armed with a pistol, and the 5th accomplice, evaded arrest. Nhira, eventually apprehended, charged at the police officers, okapi knife in hand.

An assessment of the factors favourable to the applicant’s cause and those against satisfies me that there is a likelihood that the applicant will endanger the safety of the public as well as the police if he were released on bail. In short, he is likely to team up with the outstanding accomplices and commit offences of robbery.

IS THERE A LIKELIHOOD THAT THE APPLICANT WILL NOT STAND HIS TRIAL OR APPEAR TO RECEIVE HIS SENTENCE IF HE WERE RELEASED ON BAIL?

The applicant’s age, name, national registration number and place of residence are known. He is not employed. He offeres to report at Marlborough Police Station every Friday, in addition to paying cash bail in the sum of RTGS $20 000 and to reside at his given address.

It is common cause that this charge of robbery is serious. It is robbery committed in aggravating circumstances. In terms of s 126(2)(a) of the Code, if convicted, the applicant is liable to imprisonment for life or any definite period of imprisonment.

My view is that the nature and gravity of this offence or the nature and gravity of the likely penalty therefor, in combination with other factors, is such as is likely to induce the applicant to take flight.

The applicant’s defence is very weak. He says he was an innocent fare-paying passenger in the vehicle in question. He knows nothing about the robbery. He did not know the other occupants of the car. He did not observe that the  other occupants of the get-away car were fleeing from the police after he boarded the vehicle. He did not observe the stolen property on boarding the vehicle. He did not make any indications. No identification parade was conducted. He was shot on both legs despite the fact that he was not fleeing from the police and had obeyed the latter’s instructions to sit down. He was shot despite the fact that the police were satisfied that he was neither Dennis Mateta nor one Wonder.

For purposes of this bail application I accept Ms Mugebe’s submission that there is a strong nexus between the applicant and the commission of the offence. I accept that he is likely to be convicted and, if that happens, a lengthy custodial sentence imposed. It is the fear of lengthy incarceration that is likely to induce him not to stand trial. As for the strength of the case for the prosecution the following facts are common cause. A five member gang robbed the complainants on the day in question. Most of the stolen property was recovered from the get-away vehicle on the same day. Three occupants of that vehicle, who include the applicant, were apprehended after a high speed chase and several shots fired by the police. Two of the occupants evaded arrest. Even on a balance of probabilities, it would defy common sense for the police to shoot applicant, if indeed he was not evading arrest and was just a passenger who had obeyed police instructions to sit down.

I am satisfied that applicant, just like his four accomplices, endeavoured to evade arrest. I accept that the police chased the get-away vehicle, fired several warning shots, deflated the tyre, fired more shots on the gang members as they disembarked and took to their heels before finally arresting the applicant and two of his accomplices. It is this attempt to put himself beyond the reach of the criminal justice system on the part of the applicant, incidentally common to all the others, that convinces me that he is a flight risk. After all, two of his accomplices are already fugitives from justice.

The applicant’s personal circumstances are not such as to satisfy me that he is deserving of bail. I was not told of the existence of any immovable property that applicant holds. He did not offer any security in addition to the cash bail.

I am satisfied that no conditions would suffice to allay the real likelihood of applicant absconding were he to be released on bail. Indeed, despite his personal circumstances, I have found that he has already demonstrated that he is given to abscondment.

WHETHER THE RELEASE OF THE APPLICANT WILL UNDERMINE OR JEOPARDISE THE OBJECTIVES OR PROPER FUNCTIONING OF THE CRIMINAL JUSTICE SYSTEM INCLUDING THE BAIL SYSTEM?

It is true that the system of bail is non-penal in nature. It is true also that the applicant is presumed to be innocent of the charge in question. But this is one side of the coin that is called the interests of justice in a bail application.

The system of bail operates on the premise that an accused person avails himself at his trial and, in the meantime, that there be no evidence that his release is likely to endanger either the fairness of the trial or harm the smooth operation of the criminal justice system in general.

I am satisfied that the release of the applicant will undermine or jeopardise the public confidence in the criminal justice system in general and the bail system in particular. An order granting bail should not be a passport to abscondment. Neither should it be abused to facilitate commission of further offences of robbery.

DISPOSITION

The applicant has failed to satisfy me that exceptional circumstances exist which in the interests of justice permit his release on bail.

ORDER

In the result, the application for bail pending trial be and is dismissed.

Mtombeni, Mukwesha & Muzawazi, applicant’s legal practitioners.

National Prosecuting Authority, respondent’s legal practitioners