Eliot v R (Miscellaneous Criminal Case 61 of 2023) [2023] MWHC 120 (4 October 2023)

iN THE HIGH COURT OF MALAWI CRIMINAL DIVISION Zomba Registry Miscellaneous Criminal Cause No. 61 of 2023 BETWEEN ENERST ELIOT......ccsessssessessecsncssssrssessrsssereaseccnssensensensssaasecnensnarersenananseanaes sans APPLICANT AND THE REPUBLIC.......c..cc1..scssssssssscsescesteeersersaecencescoreneceuensansoeesseauasnesvonsseeenee RESPONDENT CORAM: HONOURABLE JUSTICE D. H. SANKHULANI N. Mdazizira, of Counsel for the Applicant C. Nkuwira, of Counsel for the Respondent A. Kazambwe, Court Clerk RULING ON BAIL Date of Hearing: 20 September, 2023 Date of Ruling: At October, 2023 Sankhulani J. Introduction This ruling follows hearing that was held on the Applicants’ application, brought under Section 42 (2) (e) of the Constitution, Section 118(3) of the Criminal Procedure and Evidence Code and Part Il of the Schedule to the Bail (Guidelines) Act), for an order that he be released from custody on bail pending trial. Background The Applicant is 25 years old, and hails from Sonte Village, Traditional Authority Liwonde, Machinga District. The Applicant was arrested on 3 April, 2023 on allegations of attempted murder. He is currently incarcerated at Domasi Prison. From what is on record, it is not clear whether or not the applicant has already been committed to the High Court. What is clear, though, is that the date of the Applicant’s trial is yet to be set. The Prosecution’s case is that the victim, Pearson Danger, is the former husband of the Applicant’s wife. On the material date, the Applicant had caught the said victim red handed, having sexual intercourse with his wife at his (Applicant’s) house. Due to rage, the Applicant stabbed the said victim on the head, chest and in the ribs. Consequently, the said victim was referred to Machinga hospital where he was still hospitalized at the time the present application was filed. The present application is supported by an affidavit and skeleton arguments. The Respondent also filed an affidavit and skeleton arguments in response to the present application. We shall, in the course of this ruling, refer to the parties’ depositions and arguments, when and where necessary. At the hearing of the present application, both sides hereto appeared through Counse!. After hearing the application, this Court adjourned the matter to today’s date for ruling. Hence the present ruling. The Parties’ Arguments The Respondent opposes the present application on two grounds. The Respondent’s first ground for opposing the present application is that the Applicant is a flight risk. The Respondent's second ground for opposing the present application is that the Applicant's life will be in danger, if released. According to the Respondent, the Applicant’s community is still enraged with what the Applicant did and is baying for his blood. The Applicant’s argument is that the Respondent has not provided any information substantiating its claim that he is a flight risk or indeed its claim that his life would be in danger, if released on bail. We shall deal with these Respondent’s grounds for opposing the present application separately, for ease of following. issues For Determination There sole issue for determination herein is whether or not the interests of justice weigh in favour of granting bail to the Applicant pending his trial. The Law Every person arrested on suspicion of having committed a criminal offence and kept in State’s custody has got the right to be released therefrom, with or without bail, unless the interests of justice require otherwise (Section 42(2)(e) of the Constitution). Accordingly, all offences are bailable (see Raphael Kasambara vs. Rep [2013] MLR 298). However, the right to bail as guaranteed under Section 42(2)(e) of the Constitution is not absolute, as it is subject to the interests of justice (DPP vs. Lunguzi [1995] 2 MLR 632). On an application for bail, the court is to weigh these interests of justice against the applicant’s right to personal freedom, particularly prejudice to be occasioned by continued detention (Article 6 of Part Il of the Schedule to the Bail (Guidelines) Act). The interests of justice are met where court is sure of the availability of applicant for trial, if released on bail (Joel Mpeketula vs. Rep [2012] MLR 216). On an application for bail, the burden of proof is on the State to show that interests of justice weigh against the granting of bail (Joel Mpeketula vs. Rep, supra), and the standard thereof is on a balance of probabilities (DPP vs. Lunguzi, supra). Ultimately, the discretion lies with the court whether or not to grant bail (DPP vs. Lunguzi, supra). The Bail (Guidelines) Act), through Article 4 of Part Il of the Schedule thereto, prescribes principles which the court should take into account in deciding whether or not to grant bail. The first principle is the likelihood that the accused, if released on bail, will attempt to evade his or her trial. In considering this principle, the court may, where applicable, take into account the following factors: the nature and the seriousness of the offence for which the accused is to be tried; the strength of the case against the accused and the temptation that he or she may in consequence attempt to evade his or her trial; the nature and the severity of the punishment which is likely to be imposed should the accused be convicted of the offence against him or her; whether the accused is in custody on another charge; the emotional, family, community or occupational ties of the accused to the place at which he or she is to be tried; the assets held by the accused and where such assets are situated; the means and travel documents 4 held by the accused which may enable him or her to leave the country; the extent, if any, to which the accused can afford to forfeit the amount of bail which may be fixed, thereby inducing him or her to jump bail; whether the extradition of the accused could readily be effected should he or she flee across the borders of the Republic in an attempt to evade his or her trial; and any other factor which in the opinion of the court should be taken into account, The second principle which the court should take into account in deciding whether or not to grant bail, as prescribed by Article 4 of Part fl of the Schedule to the Bail (Guidelines) Act, is the likelihood that the accused, if he or she were released on bail, will attempt to influence or intimidate witnesses or to conceal or destroy evidence. In considering this principle, the court may, where applicable, take into account the following factors: the fact that the accused is familiar with the identity of witnesses and with the evidence which they may bring against him or her; whether the witnesses have already made statements and agreed to testify; the relationship of the accused with the various witnesses and the extent to which they could be influenced or intimidated; whether the investigation against the accused has already been completed; how effective and enforceable bail conditions prohibiting communication between the accused and witnesses are likely to be; whether the accused has access to evidentiary material which is to be presented at his or her trial; the ease with which evidentiary material could be concealed or destroyed; the fact that the accused, knowing it to be false, supplied false information at the time of his or her arrest or during the bail proceedings; and any other factor which in the opinion of the court should be taken into account. The third principle which the court should take into account in deciding whether or not to grant bail, as prescribed by Article 4 of Part Il of the Schedule to the Bail (Guidelines) Act, is the likelihood that the accused, if he or she were released on bail, will endanger the safety of the community or any particular person or will commit an offence. In considering this principle the court may, where applicable, take into account the following factors: the degree of violence towards others implicit in the charge against the accused; any threat of violence which the accused may have made to any person; any resentment the accused is alleged to harbour against any person; any disposition to violence on the part of the 5 accused as is evident from his or her past conduct; and any other factor which in the opinion of the court should be taken into account. The fourth principle which the court should take into account in deciding whether or not to grant bail, as prescribed by Article 4 of Part Il of the Schedule to the Bail (Guidelines) Act, is, in exceptional circumstances, the likelihood that the release of the accused will disturb the public order or undermine the public peace or security. In considering this principle the court may, where applicable, take into account the following factors: whether the nature of the offence or the circumstances under which the offence was committed is such that the release of the accused is likely to induce a sense of shock or outrage in the community where the offence was committed, and whether the shock or outrage of the community might lead to public disorder if the accused is released; whether the safety of the accused might be jeopardized by his or her release; whether the sense of peace and security among members of the public will be undermined or jeopardized by the release of the accused; and any other factor which in the opinion of the court should be taken into account. According to Article 6 of Part Il of the Schedule to the Bail (Guidelines) Act, in applying the principles outlined above, the court shall weigh the interests of justice against the right of the accused to his or her personal freedom and in particular the prejudice he or she is likely to suffer if he or she were to be detained in custody, taking into account, where applicable, the following factors: the period for which the accused has already been in custody since his or her arrest; the probable period of detention until the disposal or conclusion of the trial if the accused is not released on bail; the reason for any delay in the disposal or conclusion of the trial and any fault on the part of the accused with regard to such delay; any impediment to the preparation of the accused's defence or any delay in obtaining legal representation which may be brought about by the detention of the accused; the state of health of the accused, as certified by a medical practitioner; and any other factor which in the opinion of the court should be taken into account. This Court’s Determination In The Context Of The Law As it has already been mentioned, the only issue for determination herein is whether or not the interests of justice weigh in favour of granting bail to the Applicant pending his trial. And as we have already stated, the Respondent opposes the present application, on two grounds. We shall now deal with those two grounds, in answering the present issue for determination. We would like, at this juncture, to point out that, in tackling the present issue for determination, we shall bear in mind the legal principles outlined above. The Respondent's first ground for opposing the present application, as we mentioned earlier on, is that the Applicant is a flight risk. However, we find the Respondent to have failed to substantiate this assertion. In our most-considered opinion, the Respondent should have proffered cogent evidence, in whatever form, substantiating its assertion that the Applicant is a flight risk, which they did not do. Hence our finding that the Respondent has failed to substantiate its assertion in this regard. Accordingly, we find the Respondent's first ground for opposing the present application to be untenable. The Respondent’s second ground for opposing the present application, as we have already mentioned, is that the Applicant’s life will be in danger, if released. However, we find the State’s assertion on the safety of the Applicant to be unsubstantiated. In our most considered opinion, the State should have proffered cogent evidence substantiating its assertion in this regard (see Kingford Madengu vs. The Republic (Bail No. 38 of 2015, High Court — Principal Registry, unreported). In the absence of such evidence, we find the State’s assertion that the Applicant's life will be in danger, if released, to be unfounded. We, accordingly, find the Respondent’s second ground for opposing the present application to be untenable. As it has already been stated, on an application for bail, the burden of proof is on the State to show that interests of justice weigh against the granting of bail, and the standard thereof is on a balance of probabilities. Therefore, in the matter at hand, the burden of proof was on the Respondent to show that interests of justice 7 weigh against the granting of bail, and the standard thereof was on a balance of probabilities. Now, both Respondent’s grounds for objecting to the present application having been found above to be untenable, we find that the Respondent has not succeeded in discharging, on a balance of probabilities, the burden of proof that was on it to show that interests of justice herein weigh against the granting of bail to the Applicant. Conclusion in view of the immediately foregoing finding that the Respondent has not succeeded in discharging, on a balance of probabilities, the burden of proof that was on it to show that interests of justice herein weigh against the granting of bail to the Applicant and also taking into account all the circumstances of the Applicant as gauged from his uncontroverted particulars provided in the affidavit in support of the present application, we ultimately find that interests of justice herein weigh in favour of the granting of bail to the Applicant. Accordingly, we hereby grant bail to the Applicant herein pending his trial, on the following conditions: 1. The Applicant shall surrender his travel documents, if any, to the State; 2. The Applicant shall be bonded in the sum of K100,000.00 cash; 3. The Applicant shall produce two reliable sureties, with National identification Documents, and each surety shall be bonded in the sum of K100,000.00 not cash; 4. The Applicant shall report at the nearest police station once a fortnight ona day of the week to be appointed by the State; 5. The Applicant shail not interfere with State witnesses; and 6. The Applicant shall attend his trial on all appointed days. As for examination of the proposed sureties, the same shall be conducted before the Assistant Registrar of this Court. The present application succeeds in its entirety. We make no order as to costs. Delivered in Chambers at Zomba this 4" day of October 2023 sanesesaaneeeey ecpsenereesences D. H. SANKHULANI JUDGE ———$—$—$—