Nayaya v R (Miscellaneous Criminal Application 16 of 2023) [2023] MWHCCrim 22 (29 March 2023)

a aan iti iaa IN THE HIGH COURT OF MALAWI MZUZU DISTRICT REGISTRY CRIMINAL DIVISION MISCELLANEOUS CRIMININAL APPLICATION NO. 16 OF 2023 BETWEEN SAMUEL NAYAYA —_ hun scceecceececeeeseeseeeeeseeceeceececseces APPLICANT THEREPUBLIC neces SestcasteeacsumpeenesseeeeiuNs RESPONDENT CORAM: Honourable Gladys A. Gondwe Moses Nkhono, of Counsel for the Applicant Dzikondianthu Malunda, of Counsel for the Respondent Fiskani Luwe, Court Clerk and Official Interpreter Mrs Chirwa, Court Reporter RULING ON APPLICATION FOR BAIL PENDING TRIAL The applicant seeks an order of release from Maula prison where he is currently incarcerated based on allegations of trafficking and murdering 30 people believed to be illegal immigrants of Ethiopian origin. The application is brought under section 42 (2) (e) of the Constitution, as read with section 118 and 161G of the Criminal Procedure and Evidence Code. The applicant avers through Counsel that he is a Malawian, from Fodya village, Traditional Authority Ngabu in Chikwawa district and resides in Machinga with his family. He is a Truck driver who plies his 1|: trade across Malawi ferrying goods and merchandise. He further gives an account of how he was hired and ferried people from Karonga to some forest in Mzimba, where 30 of them were later discovered dead and buried in a mass grave. He denies trafficking and causing their death. He further argues that the prescribed period for his lawful pre-trial detention has been exceeded hence this court should consider releasing him from custody with or without conditions as it may deem fit and appropriate. On other hand, the state opposes the applicant's release on bail. It was submitted by Counsel for the respondent that the applicant is answering to very serious charges involving the trafficking and murder of 30 people, and the evidence in the state's possession weighs significantly against him. This, it was argued could potentially motivate the applicant to abscond given the severity of the punishment prescribed for the said offences. Determination During hearing this court made known its decision denying the application but reserved its reasoning which it now renders. Bail is an entitlement to every detained person subject only to the interests of justice, as per section 42 (2) (e) of the Constitution. Whether or not bail is granted is a matter of the courts discretion in each case. The yardstick for the demands of the interest of justice is the suspect’s likelihood to attend trial. See Fadweck Mvahe v. Republic [2005] MLR 291. It is also settled that the burden lies on the state to demonstrate to the court that the interests of justice in any given case lie in favour of continued detention and the standard of proof applicable is on the balance of probabilities. Suffice to state that under section 9 of part I] of the Bail Guidelines Act the court is mandated to still weigh up the personal interests of the applicant against the interests of justice, even where the state is not opposed to the granting of bail. The applicant submits through Counsel that he is currently in unlawful detention as his stay in custody has exceeded the prescribed pre-trial custody time limits. In response the state has submitted that investigations were already concluded and disclosures served on the suspects through their lawyers and filed within the prescribed period. According to Counsel, the state was merely waiting on the court to set a date for trial to start. Notably, this information was news to the court. It later came to light that the said disclosures had indeed been served on the suspects but for some reason were yet to be filed in court. According to section 161G of the Criminal Procedure and Evidence Code the maximum period that a person accused of serious offences such as murder 2| Pag may stay in pre-trial detention is 90 days. Section 161F avails the state an opportunity of an extension for a further 30 days upon the sanctioning of the court. The applicant having been arrested on 23 November, 2022 and committed to the High Court for trial on 25" November, 2022 has been in custody for a period that exceeds the prescribed pre-trial custody time limit. That notwithstanding the position of the law is that even in such circumstances it is still incumbent upon the court to consider whether or not releasing a suspect ts in the interest of justice. In Welos Kamphulu v. Republic Miscellaneous Criminal Application No 13 of 2021, Chipao J relied on Mavuto Taipi v. Republic MSCA Criminal Appeal No. 9 of 2014 in which the Supreme Court of Appeal held that pre-trial custody time limit provisions do not create a new regime on the requirements of bail and discretion of the court under section 42 (2) (e) of the Constitution. The Honourable Judge quoted the following instructive sentiments; dn our judgment a consideration of the interest of justice remains of vital importance whenever a court is considering a pre-trial bail application, whether such bail application is initiated before, or initiated on or after the expiry of the applicable custody time limit.’ The court further considered the case of Sandras Frackson and Others v. Republic Criminal Appeal No. 1 of 2018, where the MSCA granted bail to the applicants after they stayed in pre-trial detention for close to two years. This court is in agreement with the sentiments that in granting bail in the Sandaras Frackson Case the MSCA did not depart from the principle laid down in the Mavuto Taipi Case. This court has therefore proceeded on the understanding that although pre- trial custody time limit has regrettably been breached, the interests of justice remain the paramount consideration in determining whether or not liberty should be restored to the applicant. The applicant has submitted that is in the interest of justice that the he be released from detention as he is not a flight risk and he undertakes to vail himself for trial. In support of this assertion it is submitted that he is a Malawian, who has a permanent place of aboard in Machinga where he stays with his wife who is attached to Malawi Revenue Authority; and that the applicant surrendered himself to police when he learnt that he was wanted. Section 4 of Part I] of the Bail Guidelines Act is illustrious on the principles which the court must bear in mind in its assessment. They include; a. The likelihood that the accused, if released on bail, will attempt to evade his or her trial; 3 | b. 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 €. 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: d. In exceptional circumstances, the likelihood that the release of the accused will disturb the public order or undermine the public peace or security. The principle under controversy in the present case is the applicant’s likelihood to evade trial. Contrary to the applicant’s argument that he is eager to undergo trial and defend himself against the allegations, the respondent contends that there are real prospects for the applicant to abscond as the evidence weighs significantly against him. Save for an allegation from the applicant that he was under duress, there is no dispute between the parties regarding the fact that the applicant herein was the driver of motor vehicle registration number CA 1592 Scania van, which ferried people believed to be illegal immigrants of Ethiopian origin, 30 of whom died under mysterious circumstances. This tilts the case against him such that this court would rather keep him in custody until the evidence is heard and openly contested. Further, the offence of Aggravated Trafficking carries a maximum sentence of life imprisonment, while that of murder is punishable by death. There is no doubt therefore regarding the serious nature of the charges levelled against the applicant. The likelihood of temptation to evade trial for fear of consequences of a possible conviction cannot be ruled out in the circumstances. The Bail Guidelines Act prescribes seriousness of the offence, strength of case against a suspect and severity of possible punishment to be visited upon a suspect as some of the factors that may be considered in assessing likelihood to evade trial. These factors weigh against the granting of bail. Additionally, the respondent argued that the discovery of bodies of 30 people buried in a mass grave in a forest in Mzimba was broadcast widely by both local and international media. With reliance on the case of Father Thomas Muhosha v. The Republic Miscellaneous Criminal Application No. 138 of 2018, it was submitted that granting bail to the applicant who ts the prime suspect in the case may shock and outrage the general public. In the above case the court acknowledged that in some criminal cases releasing suspects from detention prior to the laying of evidence to enable the general public appreciate the true circumstance of the case may generate 4 | public shock and outrage that may cause public disorder which may spill to private spaces including the applicant’s place of abode. While agreeing with the respondent that releasing the applicant from detention at this point has the potential to cause the said public shock and outrage. it is the view of this court that the said outrage may not be the kind the court envisaged in the Father Thomas Muhosha Case as chances of such outrage degenerating into chaos in public and private spaces are significantly low given the remote location of the victim’s families. This court therefore considered this factor to a minimal extent. Finally, it will be remiss of this court not to address the applicant’s reference to two other suspects who were granted bail by this court. It is his contention that he must be treated similarly. This court granted bail to one Tadikila Mafudza, the applicant’s employer and owner of the motor vehicle he was driving. It was the state’s submission in response to his application before this court that he was arrested on account of the said motor vehicle. The other suspect is one Godrick Nazombe, whom according to the state was an accessory after the fact in whom they did not have much interest. Unlike in the present application, the state was not opposed to the granting of bail to those two and this court found no sound reasons for denying applications. The applicant’s circumstances are therefore significantly apart from those of the two warranting differential treatment. It is for the foregoing reasoning that this court finds that the interests of justice do not favour releasing the applicant from detention. Given that investigations were concluded and the state has filed disclosures, this court appoints 24 May, 2023 at 9am for plea and directions. Pronounced in chambers this 29" day of March, 2023. = Gladys A. Gondwe JUDGE 5 |