Godwin Mhiripiri v The State

### Preamble
1
HH 173-18
B 36/18
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GODWIN MHIRIPIRI

versus

THE STATE

HIGH COURT OF ZIMBABWE

NDEWERE J

HARARE, 13 March 2018

Bail Application

Applicant, in person

F.I Nyahunzvi, for the state

NDEWERE J: The applicant was convicted by the Regional Court sitting at Harare following separate trials presided over by different regional magistrates. The first case was  completed on 18 December 2012. Wherein he was convicted on two counts of robbery as defined in s 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The trial court reference is CRB R779/12. The robberies were committed on 2 May 2012 and 10 May 2012 respectively. The method operation in in both counts is the same. The complainants were robbed at night after alighting from public transport. During the trial the State called the victims who testified that they were able to identify the applicant at identification parades conducted by the Police. The trial court accepted their evidence. The evidence of the complainants was corroborated by one Alfred Mgijima who was called as an accomplice witness. Alfred Mgijima was duly warned by the trial court in terms of the provisions of the Criminal Procedure and Evidence Act [Chapter 7:09]. He participated in the crime but the State decided to call him as a state witness. He knew the applicant prior to the commission of the offence. The identity of the applicant and his participation was therefore proved beyond reasonable doubt.

The other case is CRB R1023-24/12 where the accused was convicted on 9 April 2013 of unlawful entry into promises in aggravating circumstances which occurred on 17 March 2012. The trial court found that the applicant and one Ideen Moyo, also known as, Mombeshure unlawfully gained entry into premises at No 2 Hurworth Road, Highlands Harare and stole various goods which included a 12 bore shotgun. The police acting on information, arrested Ideen Moyo who led them to the applicant’s residence where they recovered two firearms. The firearms were a 12 bore shotgun and a revolver. The applicant signed in one Detective Tugwete’s notebook to acknowledge that the firearms had been recovered from him. The 12 bore shotgun was subsequently positively by the complainant as part of his property stolen during the unlawful entry which took place on 17 March 2012.

On 20 December 2017 the Honourable Justice Zhou granted the applicant condonation and leave to file Notice of Appeal in both cases. The Honourable Justice further granted the applicant leave to prosecute appeal in person. The stage which the appeal has reached is not known since that was not canvassed in argument.

The applicant has applied to be released on bail pending the appeals.

It is trite that the presumption of innocence no longer operates in favour of the applicant. The applicant submitted at length attacking the weight of evidence forming the basis for his conviction. He submitted that the identification parades where he was pointed out by the complaints in CRB 779/12 were improperly conducted. He submitted that while the persons who participated in the parades had overalls like him the witnesses pointed him out because his overall were torn. He submitted that in any event the witnesses had been given an opportunity to observe him in a room before the identification. He produced photocopies of the photographs.

It will be noted that the applicant raised the same objections at the trial. The trial court rejected the objections after considering all the evidence presented before it. I must observe that the submission that the applicant’s overalls were torn - is not apparent on the photographs produced. The participants do not have to be the same height. They were of different height. The applicant certainly does not stick out is either the shortest or tallest. His height therefore, does not distinguish him. The submission that the witnesses were allowed to observe him is not supported by evidence on record.

In CRB R 1023-24/12 the applicant submitted strenuously that the 12 bore shotgun was not recovered from him or his resident. At the same time he referred the court to a medical report as evidence that he was assaulted. The issue of the assault does not appear to have been investigated by the lower court.

However that is not relevant to the issue for determination. The applicant case in not that the shotgun was recovered through the use of force. He simply denies that it was recovered from him or at his house. That is a factual issue which was resolved, in favour of the State. I find no basis for interfering with the finding of the court a quo at this stage.

I am not persuaded that the applicant’s prospects of success on appeal are good. The applicant is serving lengthy prison sentences.

It will not be in the interests of justice to admit applicant to bail.

Bail pending appeal is therefore denied.

National Prosecuting Authority, respondent’s legal practitioners