S v Phiri (6 of 2021) [2021] ZWMSVHC 6 (4 February 2021)

1 HMA 06-21 B 14-21 THE STATE versus WILLIAM PHIRI HIGH COURT OF ZIMBABWE ZISENGWE J MASVINGO, 26 January 2021 and 4 February 2021 Bail application Mr Chakabuda, for the State Mr Mbavarira, for the accused ZISENGWE J: The applicant, a fifty-five year old medical doctor seeks to be admitted to bail following his arrest and subsequent detention on charges of murder and attempted murder (i.e. contravening section 47 of the Criminal law (codification and Reform) Act [Chapter 9:23] and contravening section 47 as read with section 189 of the same Act.) The allegations as spelled out in the ‶request for remand ″ from (i.e. the police form 242) are that he brutally attacked his four children killing two (identified as Princess and Victor) in the process and critically injuring the other two (Ropafadzo and Themba). This attack came in the wake of a heated dispute between the applicant and his wife Loice Chakauya. It is alleged that in the heat of this altercation the latter took to her heels leaving the applicant and their four children. It was then that the applicant is alleged to have locked himself up with those children before embarking on what can only be described as a frenzied attack on the four young children. In this regard it is alleged that the applicant fired a single shot from a firearm. It is not clear, however, from the papers at my disposal whether the shot was fired into the air as stated by Detective Sgt Collins Mbaura in his written statement opposing the granting of bail or it was HMA 06-21 B 14-21 directed at one of the children as alleged in Section B of the request of the request for remand form. Be that as it may, it is alleged that the applicant then viciously attacked the four children by striking each of them onto the floor resulting in two of them (aged 4 years and 7 months respectively) sustaining mortal injuries and the other two sustaining serious injuries. In the aftermath of this attack, the applicant is alleged to have spiritedly endeavoured to end his own life. To this end he is said to have stabbed himself multiple times with a knife and thereafter doused himself in diesel before setting himself alight. Needless to say he survived the ordeal. In this application the applicant exhorts the court to release him on bail pending trial contending as he does that he is a suitable candidate for the same. The court was once again reminded (and will indeed remain cognisant) of applicant’s entitlement to bail in terms of Section 50(1) (d) of the Constitution unless there are compelling reasons warranting his continued pre-trail detention. Several cases were cited in this regard. According to applicant there are no such compelling reasons. The applicant further implored the court to consider same of his personal circumstances. These include his desire to give his deceased children a befitting send off by allowing him the opportunity to make proper arrangements for their decent burial, the need for him to seek proper medical attention for his injured children as well as his quest to attend his late father’s funeral who incidentally passed away recently. He also urged the court to permit his release on bail so that he can receive proper medical attention from a practitioner of choice for the injuries sustained when he made the attempt on his life. The state is opposed to the application and bases its stance on three main premises namely firstly the need for applicant to undergo psychological examination given the circumstances under which the offences were allegedly committed, which examination can only be properly conducted while applicant is in custody, secondly the likelihood of applicant absconding in light of the gravity of the offence coupled with the strength of the case against him, and thirdly the risk of applicant interfering with investigations and /or witnesses. The third ground above is in my view difficult to sustain. The mere fact that the offence was committed within a domestic setting, without anything further, hardly warrants an inference HMA 06-21 B 14-21 that applicant may be inclined to exert influence on his wife and surviving children (who are supposedly the key witnesses for the state) to falsify their evidence to exculpate him. I also find it unlikely that the said witnesses would buckle under the applicant’s influence as feared by the state, particularly in view of the nature and gravity of the charges. In any event, should the applicant be so inclined to prevail upon the witnesses to distort their accounts, he could very well do so indirectly (say through intermediaries) from his remand prison cell. Secondly the apprehension by the state in his regard may be allayed (should applicant be granted bail) by the imposition of appropriate conditions (that is if the applicant is granted bail). In short therefore, this particular reason for opposing bail can hardly carry the day for the state. However, the other grounds advanced by the state in opposing bail are a different kettle of fish and it is to which that I now turn. Likelihood of abscondment Section 117 (3) (b) of the Criminal Procedure and Evidence Act, [Chapter 9:07] sets out some of the factors germane to a proper consideration of bail in instances where the risk of abscondment is in issue. It provides as follows: 3) In considering whether the ground referred to in a…… (b) subsection (2) (a) (iii) [risk of absconding] has been established, the court shall take into account- (i) the ties of the accused to the place of trial; (ii) the existence and location of assets held by the accused; (iii) the accused’s means of travel and his possession of or access to travel documents; (iv) the nature and gravity of the offence or the nature and gravity of the likely penalty therefore; (v) the strength of the case for the prosecution and the corresponding incentive of accused to flee; (vi) the efficacy of the amount or nature of bail and enforceability of any bail conditions; (vii) any other factors which in the opinion of the court should be taken into account. In the statement filed in support of this application, the applicant avers that the he harbours no intention whatsoever to flee the jurisdiction and become a fugitive from justice, nor does he have the wherewithal to sustain a new life abroad. HMA 06-21 B 14-21 Further he implores the court to have regard to his co-operation with the police and prison officials in the aftermath of the tragic as being indicative of his commitment to stand trial. He also indicates that his ties to Zimbabwe are such as to obviate the risk of his abscondment. In this regard he points out that not only is he a registered and practicing medical doctor but is a sugar cane farmer of repute. So successful is the latter venture, so he avers, that his profession as a medical doctor plays second fiddle to it. The state on the other hand maintains that gravity of the charges facing the applicant complied with the intractable evidence against the applicant at its disposal is likely to induce him to dismissal. In S v Jongwe 2002 (2) ZLR 209 (5) the Supreme Court had occasion to address the principles relevant to the assessment of the risk of abscondment in an application for bail pending trial. Chidyausiku CJ had this to say. "RISK OF ABSCONDMENT In judging this risk the court ascribes to the accused the ordinary motives and fears that may sway human nature. Accordingly, it is guided by the character of the charges and the penalties which in all probability would be imposed if convicted; the strength of the state case, the ability of flee to a foreign country and the absence of extradition facilities, the past response of being released on bail and the assurance given that is intended to stand trial. It is a quite clear from the above that the critical factors in the above approach are the nature of the charges and the severity of the punishment likely to be imposed upon conviction and also the apparent strength and weakness of the state case