Trymore Musiyazviriyo v The State

### Preamble
1
HMT 78-19
B 134/19
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TRYMORE MUSIYAZVIRIYO

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 23 October 2019 and 7 November 2019

Bail Application

C Ndlovu, for the Applicant

Ms TL Katsiru, for the Respondent

MWAYERA J: The applicant arraigned before the Magistrates Court facing a charge of Rape as defined in s 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The facts forming the basis of the charge are that between May and June 2019 the applicant was staying with his two juvenile daughters the complainant aged 10 and the other younger one aged 5. The applicant carried the complainant to his bed and after exposing his manhood he inserted his male organ into the complainant’s private parts knowing or realising that there was a real risk or possibility that the complainant was incapable of consenting to sexual intercourse. Thereafter the applicant repeated the same transgression on the complainant on several occasions. The allegations came to light through a tip off to the police culminating in the arrest and appearance of the applicant before the Magistrates Court. The applicant has approached this court seeking to be admitted to bail pending trial. The State opposed the application.

In an application for bail pending trial the court has to seek to strike a balance between the right to individual liberty and the interests of administration of justice. The right to individual liberty is a constitutionally guaranteed right which should not be whisked away lightly unless there are compelling reasons warranting interference with the right. It is a right which is anchored on the criminal hallmark of the presumption of innocence till proven guilty by a competent court of law. On the other hand the interest of administration of justice is underpinned on the celebrated societal interest of ensuring that matters are prosecuted to their logical conclusion.

The legislation on bail is clear on power to admit to bail and entitlement to bail s 116, 117 and 117A of the Criminal Procedure and Evidence Act [Chapter 9:07]. Plenty of cases have been decided by this court with a clear emphasis on the desire to uphold the right to liberty and admitting applicants to bail unless there are compelling reasons warranting denial of bail. See Last Ncube v The State HB 36/18, Sibangani Dube v The State HB 206/18 and S v Felody Munsaka HB 55/16.

If the interest of administration of justice will be prejudiced and jeopardised by placement of an applicant on bail then such are militating factors against admission of an applicant to bail. What falls for consideration therefore is a whole spectrum of factors which by nature of the application have to be cumulatively considered as opposed to consideration in isolation. Factors such as the nature of allegations, the severity of punishment in the event of conviction, the strength of State case, likelihood if abscondment, likelihood of interference with witness, and possible defence raised by the applicant are among others relevant.

In this case the applicant is facing a serious allegation of rape of his own 10 year old daughter. The only witness who is said to have observed the sexual molestation is his own biological 5 year old daughter. The offence is serious and the witnesses are vulnerable. Given their ages and relationship with accused the fears of direct and indirect influence inferring with the interest of administration of justice are real. The offence is not only serious but also attracts a lengthy imprisonment term in the event of conviction. When that is considered in conjunction with the nature of allegations, the likelihood of abscondment and temptation to frustrate justice by interfering which is not delusional, the admission of applicant to bail will compromise administration of justice. Inducement and temptation to absond in this case is fortified not only the seriousness of the allegation but the strength of the State case and the fact that trial date is imminent. The reality of being tried can induce the applicant to abscond when viewed in conjunction with all the other salient factors.

I am alive to the fact that the children have been removed to a place of safety such that interference might be minimised but it cannot be ruled out. From the oral submissions by both applicant and respondent counsel the institution is just in an adjacent village to the applicant’s homestead. This gives room for both direct and indirect interference. Mere sighting of the applicant could have a negative impact on the finalisation of the matter as the juvenile witness can freeze and not feel free to talk when the matter comes up for trial.

This is a case were bail conditions are not sufficient to alley the fears of prejudice to the interest of administration of justice. Given the medical evidence, the 5 year old having witnesses the abuses, the strength of the State case and the seriousness of the allegations cumulatively considered the circumstances are such that it would not be in the interest of administration of the justice to admit the applicant to bail. The chances of frustrating the ends of justice are real and these amount compelling factors why the applicant should not be admitted to bail.

I am alive to the applicant’s assertion that the allegations are false allegations arising from his estranged spouse. However given the manner in which the allegations arose and the involvement of a welfare organisation the allegations do not appear to have been raised by the mother of the children.

Upon considering the totality of the circumstances of the allegations, the nature of allegations, the State and applicant’s version and the principles of bail pending trial this is a matter where it would be a misnomer to admit the applicant to bail.

The application for bail is accordingly dismissed.

Gonese and Ndlovu, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners