Takudzwa Gokore v The State

### Preamble
1
HCMTJ 41/24
HCMTCR 1679/24
3
HCMTJ 41/24
HCMTCR 1679/24
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TAKUDZWA GOKORE

versus

THE STATE

HIGH COURT OF ZIMBABWE

SIZIBA J

MUTARE 23rd & 25th SEPTEMBER 2024

Application for bail pending trial

Ms F. Maroko, for the applicant

Ms T. Katsiru, for the respondent

SIZIBA J: The applicant has approached this court seeking to be admitted to bail pending trial in terms of s 117A of the Criminal Procedure and Evidence Act [Chapter 09:07]. He is facing a charge of rape contrary to s 65(1) as read with s 64 (1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. In terms of s 50 (1) (d) of the Constitution of Zimbabwe, the applicant has a constitutional right to be admitted to bail. He should be denied bail if there are cogent reasons to show that his admission to bail will defeat the interests of justice. Section 117 (2) of the Criminal Procedure and Evidence Act outlines such factors that demonstrate that an accused’s admission to bail may put the interests of justice at stake. In matters of this nature, s 115 c(2) places the burden upon the applicant to show that the interests of justice would not be defeated by his or her admission to bail.

The complainant in the case at hand is a minor child aged 9 years who is doing grade 4 at Penhalonga Primary School. She resides at number 1008A, Two Rooms, Dangamvura in Mutare. On 2 August, 2024, the applicant is alleged to have gone to the complainant’s home in the company of his cousin who is a boyfriend to one Gamuchirai Galdencia who is a maid at complainant’s place of residence. It is alleged that whilst the applicant’s cousin had gone inside to spend quality time with his girlfriend, the applicant took a drive with the complainant in his Toyota Wish motor vehicle to Boka Business Centre whereupon he is alleged to have bought some beer and prevailed upon the complaint to partake of the so called “wise waters”. He then allegedly had sexual intercourse with the complaint in his car. On 8 August 2024, the complainant was examined by a medical practitioner who remarked that there were no injuries to the hymen but that penetration was very likely. She also remarked that the presence of a yellowish discharge on the complainant’s genitalia was an indication of a sexually transmitted infection. This aspect, according to Ms Katsiru, was an indication that there could have been penetration in the slightest sense which at law would amount to rape. State counsel accordingly argued vigorously that the state had a strong case which factor could induce the applicant to abscond and not stand trial due to the prospect of a lengthy imprisonment. This submission is supported by the cases of Jongwe v The State SC – 62 – 02, Moyo v The State HB – 25 - 22. State counsel submitted further that the applicant was only apprehended with the help of his cousin and that he was difficult to arrest. This submission, however, was not persuasive to me because, as Ms Maroko submitted, the state failed to avail an affidavit from either the investigating officer or the arresting officer to confirm such allegation. Ms Maroko further submitted that there were triable issues raised by the medical report. Her submission was that the absence of injuries to the hymen testified to the fact that there was no penetration at all and hence the state case was weak.

The critical question in this case is whether it will be in the interests of justice to admit the applicant to bail pending trial. To be more particular in this case, the question is whether the applicant will stand trial or not if admitted to bail pending trial. Both counsel agreed that the fact that the trial date has been set so near on 24 September 2024 is not a sufficient ground on its own to deny the applicant bail. He has no pending allegations nor previous convictions. There is only an allegation that the complainant delayed to report the allegations. This was because she had been threatened not to make a report. Her mother allegedly made a report after she noticed a discharge on her private parts. According to the applicant, the mother’s report was triggered by her disapproval of the maid’s behavior in allowing men into the house. The truthfulness or falsity of all these allegations and counter allegations will be fully proven at the trial rather than in this application. In a bid to demonstrate that the interests of justice would not be hampered by his admission to bail, applicant has offered to reside at Mutasa District, Sabhuku Chaukura, Ward 18.

The case at hand, in my view, requires the court to consider all the relevant issues above and consider whether the interests of justice would be served by admitting the applicant to bail pending trial. In this case, the state’s allegations are very serious. Allegations of a 24 year old man having had carnal knowledge of a girl aged 9 years arouse public interest and public anger, even though an accused is still presumed innocent. Where, as in this case, the state has availed evidence that tends to corroborate the likelihood that the offence was committed, the court should be slow to be persuaded to admit the accused to bail so as to eliminate the possibility of abscondment by an accused person which will defeat the smooth finalization of the case. Such evidence in this case is in the medical report which alleges that the yellowish discharge testifies of a sexually transmitted infection. An applicant for bail under these circumstances must demonstrate that there are compelling factors or special circumstances that would tilt the scales to his favour and take the case out of the ordinary in order to convince the court to grant him bail pending trial. Such is the statutory burden that is imposed upon the applicant in terms of s 115 c(2) of the Criminal Procedure and Evidence Act [Chapter 9:07]. This statutory provision relates to allegations of offences which are very serious in nature and also prevalent and which attract lengthy imprisonment.

It is not an easy task for the applicant to discharge the evidential burden placed upon him by the above statutory provision. The information that the applicant has given in this particular case is very scanty. He denies having had sexual intercourse with the complainant. He also denies having made the victim to partake of alcohol. He, however, does not tell this court whether he never visited the complainant’s home in the company of his cousin or not. Most importantly, he does not say whether he did drive around with the minor child to Boka Business Centre as alleged. The court has no full picture of his version of events. This information is missing both in his bail statement and also in his affidavit and neither was it provided during oral submissions by applicant’s counsel. Where an applicant for bail in a third schedule offence gives scanty information and fails to disclose his full and honest version or line of defense to the court, he cannot be said to have discharged the evidential burden which lies upon him to prove that the interests of justice would not be hampered by his admission to bail pending trial.  The court, in such instances, will be given the impression that such an accused person only takes interest in capitalizing on the perceived weaknesses of the state case as his or her sole basis of defense whilst hiding or concealing his own involvement in the alleged crime. Apart from an inquiry in the strengths and weaknesses of the state’s case, the court is also interested in the strengths of the accused’s version of events. It is such a strong version of the applicant’s case as against the weaknesses of the state case that can show that the accused is likely to be acquitted of the charge or spared a lengthy period of imprisonment and thereby minimizing chances of abscondment. This is how the evidential burden resting upon the accused can be discharged. This is what is essentially missing in the applicant’s case. It is therefore unsafe to admit the applicant to bail.

In the result, it is ordered as follows:

The application for bail pending trial be and is hereby dismissed.

Mugadza Chinzamba & Partners, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners