Stewart Magonyo v The State

### Preamble
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HH 360-21
B1186/21
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STEWART MAGONYO

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHAREWA

HARARE, 23June & 8 July 2021

Bail Application

Mr J Mangeyi, for applicant

Ms K H Kunaka, for respondent

CHAREWA J: The appellant is being charged with robbery as defined in s126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. His application for bail pending trial was refused on the basis that:

His alleged accomplices are still at large

The case against him is strong as he was in close proximity to the complainant. Therefore the issue of mistaken identity seems improbable even though this is a triable issue.

The evidence against him is overwhelming  and this might induce him to abscond

Thus there are compelling reasons to deny him bail.

The appellant submits that the court a quo misdirected itself in finding that there is overwhelming evidence premised on identification of appellant by complainant when in the same breath it acknowledged that the issue of identification was a triable issue. Therefore by basing its decision on a factor which it found to be triable, its decision is irrational and in defiance of logic. Secondly, the appellant contends that the court misdirected itself in finding that appellant would abscond if granted bail without considering the relevant factors under s 117(3)(b) together with those under s117(2) of the Criminal Procedure and Evidence Act [Chapter 9:07]

A bail application is based on a balance of probabilities while triable issues must be proven beyond reasonable doubt.  I do not, therefore, consider it to be a contradiction or irregularity for a bail court to conclude that on a balance of probabilities, there is adequate proof of identification to militate against the grant of bail, while at the same admit that evidence of identification beyond reasonable doubt must be adduced at trial to prove culpability. In the circumstances of this case, where the accused was in close proximity to the complainant to militate against mistaken identity on a balance of probabilities, I cannot find that there was a misdirection or gross irregularity.

However, to conclude, as the magistrate did, that such identification is overwhelming evidence against the appellant, is in my view irregular. This is because neither the Form 242 nor the submissions by the state showed that any identification parade was held. This must have exercised the magistrate’s mind and is probably the reason that he acknowledged that the issue of identification is a triable issue.

Further, and in any event, S117(3) provides that in considering whether an applicant may not stand his or her trial or appear to receive sentence, a court must take into account the following:

“(i) the ties of the accused to the place of trial;

(ii) the existence and location of assets held by the accused;

(iii) the accused’s means of travel and his or her possession of or access to travel documents;

(iv) the nature and gravity of the offence or the nature and gravity of the likely penalty therefor;

(v) the strength of the case for the prosecution and the corresponding incentive of the accused to

flee;

(vi) the efficacy of the amount or nature of the bail and enforceability of any bail conditions;

(vii) any other factor which in the opinion of the court should be taken into account;”

It is apparent from the decision of the court a quo, that the magistrate only considered the one factor: the strength of the case for the prosecution and the corresponding incentive to flee. The construction of s117 (3)(b) is such that all the factors must be taken into account, rather than cherry picking one. There is thus a clear misdirection by the court a quo. In the circumstances, this court is at liberty to interfere with the decision of the court a quo.

In consideration of the reasonable fear, by the state, of abscondment, a balance must be struck between the presumption of innocence and his right to liberty vis-à-vis the interests of justice by putting in place appropriate conditions, which will ensure the availability of the appellant to stand trial. A bail deposit of $5 000 and more stringent reporting conditions, given the seriousness of the charge, should not be amiss.

An order is thus made as follows:

“IT BE AND IS HEREBY ORDERED THAT

In the premises, the decision of the court a quo dated 26 May 2021 in which bail was refused to the appellant be and is hereby set aside and substituted with the following:

The accused be and is hereby admitted to bail pending trial subject to the following conditions:

He shall deposit the sum of $5 000 with the Clerk of Court, Chinhoyi Magistrate’s Court, Chinhoyi.

He shall continue to reside at number 3894 Coldstream, Chinhoyi until this matter is finalised.

He shall report at CID Chinhoyi, twice a week, every Monday and Friday between the hours of 6.00 am and 6.00pm until this matter is finalised.

He shall not interfere with investigations or state witnesses.

Mangeyi Law Chambers, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners