Pritchard Zimondi v The State

### Preamble
1
HH 244-12
B411/12
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PRITCHARD ZIMONDI

versus

THE STATE

HIGH COURT OF ZIMBABWE

MUSAKWA J

HARARE, 30 May, 1 and 12 June 2012

Bail Application

N. Mugiya, for applicant

E. Katsvairo, for respondent

MUSAKWA J: Applicant was arrested on allegations of murder. Since this is a scheduled offence for which the Magistrates Court lacks jurisdiction, he applied for bail before this court.

The scanty facts in the Form 242 presented at the remand hearing are that on 24 April 2012 and at house number 7621 Unit K, Seke, Chitungwiza the applicant had a misunderstanding with the deceased who was his long-time girlfriend. The applicant found deceased alone in her bedroom. He took a knife and stabbed deceased fifteen times on the left breast. He left the knife stuck in the deceased’s left breast and ran away. He was later arrested in Harare Central Business Centre (sic).

As to the facts or evidence linking the applicant to the allegations, it is alleged as follows-

“The accused was found in possession of keys he took from the deceased’s house. The accused was also found with bra (sic) and panty (sic) belonging to the deceased.”

On reasons for opposing bail, the only ground advanced in Section C of the Form 242 is that:

“When he was arrested he had left his resident (sic) fleeing to Gweru.”

The applicant also resides in Unit K. He is employed at T.N. Bank. In the bail statement, it is submitted that the applicant never met deceased on the day in question. The applicant left for work around 7 a.m. As he was in town he thought of purchasing some presents for deceased. Hence the bra and panty he was in possession of at the time of arrest. It is further explained that as the applicant was busy shopping he received a call from a Police Officer who wanted to interview him. As soon as they met, he was then arrested.

The applicant subsequently filed supplementary statements. In one such statement filed with the court on 23 May 2012 it is stated that as the applicant left for work he rushed to drop some items in Gweru. It was whilst he was in Gweru that he purchased the bra and panty. He purchased these items in fulfilment of a request by deceased when they met two days previously. When he received the call from the Police Officer he told him he was in Gweru and that he would be in Harare in the next four hours. It is further explained that since the undergarments were new that is why the applicant met Police officers when he had such items.

In yet another supplementary statement filed on 28 May 2012 it was explained that the applicant and deceased had exchanged items including keys to their respective rooms. The applicant used to keep the keys (sic) to deceased’s room on his bunch of keys. He surrendered the keys to the arresting officer.

From the submissions made on behalf of the applicant, the thrust is that the case against him is weak. This is based on the explanation that has been tendered in respect of the two incriminating pieces of evidence in the form of the key and undergarments. It was also contended that the applicant is a good candidate for bail as he co-operated with Police upon his arrest.

In its response, the state opposed the application. It highlighted the strength of the case against the applicant as evidenced by the keys and undergarments that were recovered from the applicant. In respect of the allegation that the applicant had fled to Gweru it was conceded that the applicant was arrested in Harare.

The State in its response attached an affidavit deposed to by the investigating officer, Assistant Inspector Mupararano. In the affidavit he explains what took place when Police attended the scene. It is stated that deceased’s brother is the one who told him he suspected the applicant to be the perpetrator. No reasons are given why he suspected so.

When the applicant was called he stated that he was in Gweru and needed four hours to return to Harare. It is also stated that his mother talked to him and persuaded him to return home and assist in investigations.

As can be noted from the initial summary of facts there were some details that were omitted which in my view would enable the court in making an informed decision. For example, whom did the deceased reside with? Did she stay alone or she rented a room? Apart from the photographs taken at the scene, was the murder weapon checked for fingerprints? The court also sought to know the exact circumstances surrounding the applicant’s arrest, for it has a bearing on the issue of abscondment. These issues exercised the court’s mind and were put to state counsel.

In light of the above queries the State filed a supplementary response to which was attached another deposition by the investigating officer. It is in this second affidavit that it is stated deceased resided with her mother and two brothers. On the fateful day the mother had been driven to work by one of the brothers. The older of the two brothers who is deaf and dumb later went to work, leaving deceased alone. He is alleged to have seen the applicant near the house.  The applicant is known to deceased’s family.

It is further stated in Assistant Inspector Mupararano’s affidavit that the applicant did not voluntarily surrender to Police.  The applicant is said to have been travelling in a vehicle hired from his friend. The friend’s girlfriend, who happened to be deceased’s friend informed the boyfriend about the death and that the applicant was a suspect. After the applicant was left at the bank where he wanted to withdraw some money, the friend is said to have driven to the High Court Police Post and thereafter returned to the bank with Police details. The applicant was arrested as he emerged from the bank.

Assistant Inspector Mupararano further states that contrary to his claim that he was in Gweru, the applicant was actually in Harare. After his arrest he was found in possession of the bra and panty. It is not explained where these items were. More importantly, it is not explained whether the applicant was questioned about these items and what his reply was. Even more importantly, there is no comment on whether these were used or new items. If they were new items proof of where they were purchased could have been sought.

It is also alleged in the affidavit that information obtained from deceased’s friend and her boyfriend was to the effect that the applicant and deceased were having problems. It is alleged that the two had had a misunderstanding the previous day when the applicant is said to have tried to be intimate with deceased.

The starting point to note is that an accused person is entitled to bail unless a court finds that it is in the interests of justice that he be held in custody. This is in accordance with s 117 (1) of the Criminal Procedure and Evidence Act [Cap 9:07].

In terms of s 117 (2) it is in the interests of justice to denial an accused bail if the following factors are established-

“(a)	 where there is a likelihood that the accused, if he or she were released on bail, will—

(i) endanger the safety of the public or any particular person or will commit

an offence  referred to in the First Schedule; or

(ii) not stand his or her trial or appear to receive sentence; or

(iii) attempt to influence or intimidate witnesses or to conceal or destroy

evidence; or

(iv) undermine or jeopardise the objectives or proper functioning of the

criminal justice system, including the bail system;

or

(b) where in exceptional circumstances there is the likelihood that the release of the

accused will disturb the public order or undermine public peace or security.”

In the case of S v Hussey 1991 (2) ZLR 187(SC) EBRAHIM JA approached the issue as follows at 189-

“In this country the law requires a judge or magistrate who is considering a bail application to take into account the provisions laid down in s 106(3) of the Criminal Procedure and Evidence Act [Cap 59]. Subsection (3) reads:

‘(3) In any case in which the judge or magistrate has power to admit the accused person to bail, he may refuse to admit such person if he considers it likely that if such person were admitted to bail he would –

not stand his trial or appear to undergo the preparatory examination or to receive sentence; or

(b)  interfere with the evidence against him; or

(c)  commit an offence;

but nothing in this subsection shall be construed as limiting in any way the power of the judge or magistrate to refuse to admit an accused person to bail for any other reason which to him seems good and sufficient."

Two of the above matters were considered by the judge a quo. The third matter, that is, whether if admitted to bail the applicant would "commit an offence", was not considered. It was never part of the State's allegation that the applicant was likely to commit further offences should he be allowed to go free on bail.

It is true that there lies an onus on the applicant to show, on a balance of probabilities, that his admission to bail would not prejudice the interests of justice. It is equally true that the factor that the crimes with which the applicant is charged, if he is convicted, would result in him facing a long term of imprisonment. These are factors which the learned judge a quo could properly have regard to in determining whether the applicant should have been granted bail. See S v Chiadzwa supra and S v Maratera supra. A careful scrutiny of both these cases, however, reveals that there were more than bald assertions made by the State that the accuseds were likely to interfere with witnesses who may be called by the State.

In the Chiadzwa case supra the police made serious allegations against Chiadzwa that he was likely to interfere with witnesses and there was evidence put before the judicial officer to that effect even though the appellant denied it. In the Maratera case supra there was evidence that there had been an interference with the course of justice and that factor, taken together with other factors, provided sufficient reasons for the refusal of bail.”

In the case of S v Jongwe 2002 (2) ZLR 209 at 214-215 CHIDYAUSIKU CJ had this to say-

“This court has had occasion to set out principles that should guide a court in determining an application for bail.

In the case of Aitken & Anor v Attorney-General 1992 (1) ZLR 249 (S) this court reviewed a long line of cases and laid down the following guiding principles for determination of bail applications:

(a)	…………………………..

(b) 	That when dealing with the matter of bail the court has to strike a balance between the liberty of the accused and the State’s need to ensure that the person stands trial and does not interfere with the course of justice.

(c) 	That the onus is on the accused to show on a balance of probabilities why it is in the  interests of justice that he should be freed on bail, but that the amount of evidence necessary for him to discharge this onus would vary according to the circumstances of each case.

(d) 	That in judging the risk that an accused person would abscond the court should be guided by the following factors:

(i) the nature of the charged the severity of the punishment likely to be

imposed on the accused upon conviction;

(ii) the apparent strength or weaknesses of the State case;

(iii) the accused’s ability to reach another country and the absence of

extradition facilities from the other countries;

(iv) the accused’s previous behaviour;

(v) the credibility of the accused’s own assurance of his intention and

motivation to remain and stand trial;

(e) …………………………………………………………………………………”

Having considered the submissions made as well as what is filed of record, it cannot be said the case against the applicant is strong. The issue of the key or keys to deceased’s room has not been properly explained. It is not clear if a whole bunch of keys belonging to deceased’s family or a single key was found on the applicant’s bunch of keys. This is an aspect the State should have clarified in its supplementary response.

The issue of the undergarments cannot be viewed as a strong piece of evidence. This is particularly so when the State did not comment on whether they were new or used items. There is nothing to indicate that the applicant was questioned in respect of these items at the time of his arrest and what his response was. If these were used items, it is not clear how deceased’s relatives identified them. However, the easiest thing was for Police to verify where the items were purchased by the applicant but this obviously had not been done at the time of hearing of the application. There is also the fact that no fingerprints were found on the murder weapon.

Therefore, on the facts as they stand, one cannot say the case against the applicant is strong. The applicant may have acted suspiciously, especially in respect of the sudden claim that he rushed to deliver some unspecified items to Gweru. This is a departure from an earlier statement in which he said he was in Harare when Police called him. Whose items were they and had he reported for work that day? Which place did the applicant visit in Gweru? However, overall the applicant’s explanation for possessing the key(s) and undergarments has not been rebutted by the State in such a sufficient manner as to lead to a conclusion that the evidence against him is strong.

Apart from the weaknesses in the state case, I am not persuaded that the applicant’s conduct at the time of arrest lends credence to the contention that he might abscond. The State sought to claim that the applicant did not co-operate with Police as he misled them that he was in Gweru whereas he was in Harare. Despite getting a second chance to clarify its case, the State only filed a deposition from the investigating officer who did not take part in the applicant’s arrest. Mr Katsvairo could not explain why the issue of circumstances surrounding the applicant’s arrest could not be explained by the officers from the High Court Police Post. He was adamant that the explanation before the court regarding how the applicant was arrested was adequate.

It is not in dispute that a Police officer called and talked to the applicant on the phone. It was also not refuted that the applicant’s mother also talked to him and told him to return to Harare and assist in the investigations. If Police claim the applicant was arrested around 11 a.m as claimed why would it take four hours for him to be taken to Chitungwiza Police Station? This is because Assistant Inspector Muapararano states that the applicant was brought to him around 15:00 hours, having been arrested around 11:00 hours. The lapse of four hours is not explained at all.

Notwithstanding the seriousness of the offence there have been no cogent reasons advanced why the applicant should be denied bail. In any event, the seriousness of the charge on its own cannot justify denying the applicant bail.

Therefore, the application is granted in terms of the amended draft order.

Mupindu & Mugiya Law Chambers, applicant’s legal practitioners

Attorney-General’s Office, respondent’s legal practitioners