Judgment No. HB 105/2004
Case No. HCB 152/04
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 25 JUNE & 2 SEPTEMBER 2004
J Jamesfor applicants
A Gaibiefor respondent
Bail pending Trial
CHIWESHE J: The applicants are jointly charged with two counts of armed robbery involving two motor vehicles. They are presently in custody at Khami Prison. In the present applicant they seek bail pending trial. The respondent opposes this application.
According to the state on 27 May 2004 the applicants proceeded to number 24 Constable Avenue, Romney Park, Bulawayo where they confronted the complainant outside his home at about 2300hours. They produced a pistol and threatened him with death. They then stole his green Nissan Hard Body vehicle registration number 769-602Y. These facts form the basis of the charge on count 1.
On count 2, it is alleged that along the Zvishavane-Mbalabala Road, in the Gwatemba area and on 28 May 2004, the applicants robbed the complainant of his vehicle a Toyota Hilux white in colour registration number 850-915G. They fired
four shots into the air then fled with this vehicle and the vehicle on count 1 which they had hijacked the day before. They later dumped the vehicle the subject matter of count 1.
The state has opposed the application for bail pending trial on the grounds that there is a likelihood that the applicants will abscond and not stand trial. It is argued that if convicted on these two counts of armed robbery, the applicants are likely to face lengthy prison terms. That in itself is a very strong motivational factor for abscondment. The applicants were in possession of the motor vehicle referred to on count 1 which had been hijacked the day before. They used it when committing the second offence a day after it had been hijacked. The state concedes that the applicants have not been positively identified as the culprits under count 1. They have however been identified by the complainant in the second count, pursuant to an identification parade. If these facts are proved then the likelihood of conviction on both counts is very high. In respect of count 1 the applicants would be required to explain the circumstances under which they came to be in possession of the vehicle, so soon after its hijack. In respect of the second count the complainant has identified them. In my view the fact that the applicants face serious charges coupled with the fact that if convicted they face lengthy prison terms and the additional fact that on paper the prospects of conviction are high is sufficient motivation for the applicants to abscond.
The applicants argue that there were serious irregularities in the manner in which the identification parade was carried out in that: the parade was conducted by a member of the Criminal Investigation Department Homicide, an interested party, 10 people were in the line up and of the 10, three were suspects, the male complainant on count two saw the applicants in leg irons prior to the parade, the other participants in
the parade were fellow prisoners and their dirty clothing was different from the applicants’ reasonably clean clothing, that the other participants in the parade were not of a similar height and that the female complainant on count 2 only identified the second applicant after she had been called aside by the police.
The state denies any such irregularities and maintains that the parade was properly conducted. In my view this question can only be resolved by the trial court.
The second ground upon which bail is opposed is the fear on the part of the state that the applicants may interfere with the complainant on count 2 who positively identified them. They may also if granted bail discard or hide the pistol used in the commission of the offences. From the facts alleged it is obvious that the most important witness at the trial of this case will be the complainant on count 2. His evidence of identification will be crucial to prove both counts. I do not believe that it would be far fetched to say that the likelihood of the applicants interfering with such witness does exist.
As regard the pistol the state erroneously contends that a charge of armed robbery cannot be preferred as long as the pistol remains outstanding. That is obviously incorrect. The applicants can be so charged in the absence of the pistol. They can be convicted on the evidence of the witnesses testifying as to their use of the pistol during the commission of the offence. The pistol, however, remains an important piece of evidence in this case without which the evidence to be led by the state is somewhat weakened. On their part the applicants argue that with respect the vehicle in count 1, same was given to them by one Nkosana Bhebhe’s for safe keeping. It was at Nkosana Bhebhe’s house that the pistol holster was recovered. They know nothing about the pistol or its holster. Nkosana Bhebhe is at
large. In my view the question of the pistol on its own is not sufficient ground to deny the applicants bail.
It is common cause that the 1st and 3rd applicants await trial on another charge of car theft. They have been on remand in respect thereto for over two years. For this reason the state opposes bail on the further ground that if released on bail the applicants may commit further offences. The present offences were committed whilst the two applicants were on bail in that other case. The onus is on the 1st and third applicants to show on a balance of probabilities that they would not commit further offences if granted bail. That onus has not been discharged.
It was for these reasons that I dismissed the application.
James, Moyo-Majwabu & Nyoni, applicants’ legal practitioners
Attorney-General’s Office, respondent’s legal practitioners