George Francis Lovell versus The State

### Preamble
1
HH 430-13
B390/13
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GEORGE FRANCIS LOVELL

versus

THE STATE

HIGH COURT OF ZIMBABWE

DUBE J

HARARE, 23 April, 21 November 2013

Bail Application

D. Ngwerume, for the applicant

A. Marevanhema, for the respondent

DUBE J: On 22 April 2013 the applicant applied for bail pending trial. I dismissed the application the following day giving my reasons ex tempo. The applicant has requested for written reasons for my decision. These are they:-

The applicant faces a charge of murder as defined in terms of section 47 of the Criminal Law (Codification and Reform) Act. The salient facts of this case are as follows. The deceased and the applicant were acquaintances and gold dealers. On 11 July 2012 at about 11.30 am the deceased left his shop carrying a satchel containing US$20 000-00 and was driving Toyota Corolla. At about 12 pm the applicant sent his maid to the shops to buy some cigarettes. When the maid came back she found a vehicle similar to the deceased’s parked at the house. The accused jumped into the vehicle and drove away and was not seen for a long time.

On 15 July 2012, the deceased’s vehicle was discovered abandoned at the corner of Herbert Chitepo Avenue and Mazowe Street. The money was not recovered. Stashed in the boot of the vehicle was the decomposing body of the deceased and with his head covered with a spar plastic bag. He died of asphyixia.   Efforts to locate the applicant proved futile. The State alleges that the applicant fled to Zambia, Tanzania and finally South Africa. The applicant handed himself over to the police on 8 April 2013.

The State is opposed to bail on the basis that the applicant faces a serious offence, that there is overwhelming evidence linking him to the offence and the likelihood of conviction is real. The State contends that if released on bail the applicant may abscond and not stand trial. That this affirmation is supported by the applicant’s behaviour and conduct after the commission of the offence.That the applicant may interfere with the maid if released on bail.

The State further contends that the applicant has not complied with the provisions of s 117(6)(a) of the Criminal Procedure and Evidence Act in that he has failed to adduce  evidence which satisfies the court that exceptional circumstances exist which justify his admission to bail.

The facts of this case disclose a murder in the course of a robbery which is a grave offence. Murder is the most serious offence in the book. Murder committed in these circumstances is aggravated by the fact that a death ensued in the course of the robbery. If convicted the applicant is likely to face a lengthy custodial term or even the death penalty. This realisation may induce him to abscond and not stand trial. Not only has the court considered the seriousness of the charge .The court has considered the strength of the state case and considered that the state case is very strong and the evidence available so far links the applicant to the commission of the offence. An analysis of the investigations made this far reveals that there is overwhelming evidence against the applicant. The applicant is linked to the offence through the evidence of his maid who saw him drive away in deceased’s vehicle. The applicant’s own friend saw him driving a vehicle similar to the one belonging to the deceased. When the applicant was arrested he admitted the offence and led the police on indications which resulted in the recovery of a crow bar which he allegedly used to strike the deceased with. The probability of conviction is real. The realisation that he may be convicted and serve a lengthy custodial sentence may induce the applicant to abscond and not stand trial. The fact that the applicant took flight the same day of the alleged commission of the offence is suggestive of the fact that he was running away from the offence and may be tempted to do the same once released on bail.

The applicant is a flight risk and is not a suitable candidate for bail at this stage. The investigating officer in this matter has sworn to an affidavit wherein he states that that the applicant took flight after the commission of the offence. The applicant using the alias Yusuf to avoid detection arrived in Zambia on 12 July 2013. On 13 July the applicant who had in his possession a small satchel, left for Mozambique. He was to later make a telephone call to a witness suggesting that he was in Burma fighting for Jihad.  This assuming of an alias shows that the applicant was trying to evade detection.  The suggestion that he was in Burma fighting a war is consistent with a person who did not want his whereabouts to be known. In January 2013, the applicant was placed on the Interpol wanted list.  Having realised that the net was closing in on him, he handed himself in to the police. He had evaded the police from July 2012 up to April 8, 2013 when he sought sanctuary at his practitioner’s officer’s firm and was later handed him over to the police. Detectives went as far as Zambia in pursuit of the applicant. The applicant handed himself in when the net was closing in on him and hence his surrender was not voluntary. The applicant failed to produce the travel documents he used in his travels and this court views this as an attempt to interfere with investigations. His assertion that he lost the travel documents does not find favour with this court and is viewed as an attempt to thwart investigations. The evidence of his escapades suggests that he is a flight risk. The conduct that he exhibited after the commission of the offence supports the submission that if applicant is released on bail he may abscond and not stand trial. The state’s fears that applicant may abscond have merit.

Applicant’s counsel urged the court not to believe the state’s assertion that the applicant admitted to the killing and led the police on indications which resulted in the recovery of a crow bar. Mr Ngwerume contended that it was unlikely that he would indicate the weapon when the deceased died from asphyxia. The fact that the deceased may have died as a result of asphyxia does not discount the possibility that he may have been also assaulted using a crow bar.

The police also fear that the applicant may interfere with the maid and some of the witnesses who are his relatives. There is no evidence of actual interference with state witnesses. The police have not revealed the names of the applicant’s friend and the other witnesses who are his relatives whom they fear he may interfere with.. This is not good enough. Where the state opposes bail on the basis that an offender is likely to interfere with witnesses, it is important that the witnesses likely to be interfered with be identified. The basis for such an assertion should also be outlined so that the offender is fully equipped to deal with that allegation. The defence has suggested that the maid has moved away from applicant’s home. The danger of interference with the maid has been removed. However, the likelihood of interference with other investigations is real as he has already interfered with investigations by not revealing the whereabouts of his travel documents.

The applicant has not shown the existence of exceptional circumstances warranting his admission to bail. The court has balanced the applicant’s interests against those of the administration of justice and is of the view that the applicant’s release would jeopardise the criminal justice system. The applicant is not a good candidate for bail.

Bail is denied.

Hamunakwadi, Nyandoro&Nyambuya, applicant’s legal practitioners

The Attorney General’s Office, respondent’ legal practitioners