S v SHAVA 2016 (2) ZLR 735 (H)

Flynote

Criminal procedure: " c bail " application " court's predominant inquiries " whether accused will stand trial or abscond or accused interfere with witnesses " principles

Criminal procedure: " bail " application " evidence " evidence given at previous trial " not necessary to be in form of a sworn statement" evidence which court may take into consideration " dental examination to determine D accused's age at previous conviction

Headnote

The applicant, arrested for raping a child, applied for bail pending trial. The court was required to determine the applicant's age as he had no identity documents. His age was to be estimated based on a previous conviction of indecent assault. The State contended he was 19 and the accused said he was 17. The State argued the applicant had been 14 years old at the time of his previous conviction as estimated by a dental surgeon's examination of his teeth. An affidavit in terms of s 278(2) of the Criminal Procedure & Evidence Act, [Chapter 9:07] had been filed at his previous conviction. According to the State, the applicant, being 19, was a major. The State also argued that if the applicant had been ten years old at the time of the previous conviction, then he would have been below the age of criminal responsibility and could not have been charged with a criminal offence nor sentenced, as had happened.

The applicant denied the accusation of rape. He claimed that the State's case was weak and thus there was no reason for him to abscond if granted bail. He also argued that the Constitution enshrined a fundamental right to bail which could only be denied in compelling circumstances. He contended that the insertion of s 115C in the C P & E Act, placing the onus on the accused to prove a right to bail, was in conflict with the Constitution. The Constitution, being the superior law, should prevail. In support of his argument that he would not interfere with witnesses, the applicant offered to leave the village where the complainant lived. Moreover, he contended that, since the police had completed investigations, there was no likelihood of him interfering with witnesses. The State argued that there was a strong inducement for him to abscond because the case against him was very strong. Although s 115C of the Act appeared in conflict with the Constitution, if the issue of onus of proof became decisive, the court must refer the matter to the Constitutional Court.

Held, that, on the facts, that the applicant was 14 at the time of his previous conviction and was, therefore, 19 years old at this trial. In bail applications, evidence is not always provided by affidavit and therefore the examination conducted at the time of the accused's previous conviction could be admitted without a sworn statement in this matter.

Held, further, that in a bail application, the court's dominant inquiry is whether, if freed on bail, the accused will stand trial or abscond and whether he will interfere with witnesses. Section 117(3) stipulated the factors to be considered in making a decision on these issues.

Held, further, that that the applicant's previous conviction demonstrated a disposition to commit a First Schedule offence and was relevant to a charge of a sexual nature. The State had thus shown a disposition by the applicant to commit such offences. In considering whether, if released on bail, there was a likelihood that an accused would not stand trial, s 117(3)(b) of the C P & E Act directs the court to take various issues into account, but particularly in the present case were: the nature of the offence and gravity of penalty therefor; and; the strength of the State's case and corresponding likelihood of the appellant to flee. These were factors that assist a court gauge the inducement to abscond. The stronger the State's case, the greater the likelihood of absconding.

Held, further, that a decision on the bail factors could not be made without reference to the Constitution. It is a fundamental human right and freedom, in terms of the Constitution, that an arrested person be charged or tried out of custody. There ought to be some compelling reasons justifying incarceration. Rape is one of the Third Schedule offences in respect of which the power to admit persons to bail is excluded or restricted. In this case, the constitutionality of s 115C(2)(a)(ii) was raised. Both counsel readily agreed that, it being in conflict with the Constitution, it must give way. In the situation of this case s 115C(2)(a)(ii) was ultra vires the Constitution, but because none of the conditions for referral as prescribed by r 24 of the Constitutional Court Rules had been fulfilled, the issue was not referred.

Held, further, that no compelling circumstances existed to deny bail pending trial.