Hillary Marechera v The State

### Preamble
1
HH 181-21
B 1383/20
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HILLARY MARECHERA

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 2 March 2021 & 21 April 2021

Bail Pending Trial

Applicant in person

B. Murevahama, for the respondent

CHITAPI J: The applicant is in relentless pursuit of his freedom and has filed this application for bail on the grounds of changed circumstances since 3 December 2020 when I dismissed his application for bail pending trial.

The application for bail was dismissed on the basis of the finding of the likelihood that the applicant would abscond given the seriousness of the offence coupled with the strong prima facie evidence against the applicant. The applicant is on remand on two court records in the remand court, namely CRB 5665/20 and CRB 5661/20 both being cases of robbery committed in aggravating circumstances as defined in s 126 of the Criminal Law (Codification & Reform) Act, [Chapter 9:23].

In case No. CRB 5660/20 the allegations against the applicant in brief were that on 31 May 2020 the applicant and his accomplice and co-accused Godfrey Magado pretended to be genuine commuters and were at Mbudzi round about; Masvingo Road, Harare. The two hired the complainant who was driving a Toyota sienta vehicle pretending that they wanted to go to Arlington Park, Harare. The complainant agreed to the hire. The applicant and his accomplice then robbed the complainant of the vehicle after grabbing his neck and produced a pistol to strike fear with him and induce his submission to let go of the vehicle. The applicant and his co-accused then searched the complainant and stole the complainant’s wallet containing cash comprising US$57.00 and ZW$45.00. They also stole the complainant itel cell phone handset with cell line. The complainant was pushed out of his car before the applicant and his co-accused drove away in complainant’s vehicle. The vehicle was recovered after the applicant was involved in an accident when driving the vehicle in Epworth. The applicant was identified to be the driver of the vehicle by the owner of the house which applicant hit the vehicle into. It was alleged that the applicant tried to escape on arrest. The co-accused Godfrey Magodo was found in possession of the complainant’s national identity card, driver’s licence and defensive driver’s licence. I dismissed the co-accused’s Godfrey Magodo’s bail application on 3 December 2020 under case No. B 1684/20. CHIKOWERO J dismissed the co-accused’s follow up application based on changed circumstances on 31 December 2020.

The second case pertained to a robbery committed on 28 May 2020. It was alleged that the applicant committed the robbery in the company of his co-accused in CRB 5661/20. There were two other co-accused namely Francis Mapfumo and Bernard Washington. The CRB reference for the applicant is CRB 5665/20. It was alleged that the applicant and his three co-accused pretended to be genuine commuters destined for Murombedzi from Norton. The complainant gave them a lift in his Honda fit type vehicle. Along the way the applicant and his co-accused manhandled the complainant and threatened him with a pistol to induce his submission to surrender his motor vehicle to the applicant and his co-accused. They handcuffed the complainant to a tree and left him there before making off with the complainant’s phone, wallet with ZWL$200.00, USD$ cash, and Steward Bank ATM Card. They demanded for the ATM card pin number. The complainant gave them the pin number under duress. The motor vehicle was recovered on the following day off the Murombedzi/Norton road in a bush. The vehicle had been vandalized of the fuel cap, battery, ignition keys and three speakers. The unchallenged allegations against the applicant and his co-accused were that the applicant and his co-accused were found in possession of the complainant’s class 2 driver’s licence and vehicle ignition keys.

In relation to bail, it was indicated in the request for remand form that the applicant and his co-accused had outstanding cases which police wanted to clear with them. The cases were listed as bearing references of CID vehicle theft squad (VTS) DR 9 June 2020; 08/06/20 ex ref ZRP Hatfield CR 06/06/20 and 58/6/20. It was alleged that the applicant and his accomplices did not have a fixed abode and would likely abscond especially so given the seriousness of the offences and likely penalty to be imposed. The sentence for robbery committed in aggravating circumstances is life imprisonment at the highest end and any definite period of imprisonment at the lowest end scale. There is no provision for the imposition of a non-custodial sentence. It follows by common sense reasoning that the heavy sentence provided for upon a conviction for robbery would act as an inducement upon the applicant to abscond. Bail was refused on the basis that there was a like hood of abscondment.

The applicant as indicated was on the above narrative denied bail. He lists the change of circumstances in the current application as that no property of the complainants were recovered from him and that the investigating officer made a blanket statement in regard to recoveries by stating that recoveries were made from the accused persons without specifying who had possession of what property. He alleged that the court was misdirected by the investigating officer. The applicant was placed on remand on those unclear allegations regarding the link between him and the commission of the offences. It is open to the applicant to seek a challenge of those allegations before the remand court or appeal to the Supreme Court against the High Court ruling to deny the applicant bail.

The applicant averred that his co-accused, Francis Mapfumo and Washington Bernard were granted bail under case number. B 1370/20 and B 1527/20. He argued that the interests of justice called from similarity of treatment with his co-accused. I have considered the two records. Francis Mapfumo was granted bail on 29 September, 2020 by myself. Washington Bernard was granted bail by FOROMA J on 22 October 2020. The grant of bail to the co-accused was therefore not a new fact which arose or was discovered after the determination of 3 December, 2020 was made. A changed circumstance for purposes of a review of a previous order dismissing a bail application must not have existed at the time of making the determination to dismiss the bail. It must have been discovered after the making of the determination. This ground of parity of treatment of co-accused does not aid the case of the applicant for admission to bail on the basis of a change in circumstances.

The applicant averred that the trial had failed to kick off on several occasions. He did not list the trial dates when trial was aborted. However, what is not in dispute is that the applicant was arrested on 7 June, 2020. It was indicated on the form 242 that investigations would be completed by 28 June, 2020. The respondent’s counsel averred that trial could not take off because of the outbreak of the COVID 19 pandemic which resulted in suspension of criminal trials. Counsel submitted in para 5 of the state’s response dated 12 March 2020.

“5.	The court has now resumed full operations and as such the applicant is likely to be tried 		soon.”

I do not find the above response to be comforting for the applicant and is also of concern to me. It was necessary for state counsel to be more definite on new trial dates allocated for the applicant’s trial.

The applicant also brought in his relative to stand surety that she could accommodate the applicant at her residence if he is granted bail. The relative is Abigail Mafere. She stays at 6451 Unit J, Seke, Chitugwiza. She and the applicant’s mother are sisters. One of the reasons to hold that there was a risk that the applicant may abscond and that his release would jeopardize the criminal justice including the bail system was also reached upon a consideration inter-alia of the allegation that the applicant has no fixed abode.

The fact that the trial has not kicked off coupled with the provision of a place of abode are circumstances which were not in existence when bail was refused. The respondent did not give an indication on when trial will commence. It is not the intention of the law giver to condemn an accused to indefinite incarceration pending trial. The court should not be blind to the ever important need to balance the interests of justice against the accused’s constitutional rights to be presumed innocent until proven guilty. I am persuaded that the continued incarceration of the applicant without trial since June, 2020 has now increasingly become difficult for the court to justify given that the respondent does not appear to have taken steps to set down the case for trial. I take the view that in seeking a fair balance between the interests of justice and those of the accused, the totality of the circumstances of the case and how the case has progressed are matters which the court cannot ignore. I consider that it should be possible to allay the fears of abscondment by imposing strict bail conditions.

The following order is therefore made:

1.	The applicant is admitted to bail in case Nos HREP CRB 5661/20 and 5665/20

2.	The applicant shall deposit $10 000 with the Clerk of Magistrates Court, Harare.

3.	The applicant shall reside at house No. 6451 Unit J, Seke, Chitungwiza.

4.	The applicant shall report at Chitungwiza Police Station every Mondays, 			Wednesdays and Fridays between 6:00 a.m. and 6.00 p.m.

5.	The applicant shall not interfere with witnesses.

National Prosecuting Authority, respondent’s legal practitioners