James v S (Bail Cause 6 of 2016) [2016] MWHC 735 (17 March 2016)

IN THE HIGH COURT OF MALAWI ZOMBA DISTRICT REGISTRY BAIL CAUSE NO. 6 OF 2016 IN THE MATTER OF SECTION 42(2)(e) OF THE REPUBLIC OF MALAWI CONSTITUTION AND IN THE MATTER OF SECTION 118, 161A AND 161G OF THE CRIMINAL PROCEDURE AND EVIDENCE CODE BETWEEN SYMON JAMES ... ,....... .. . ...... ................ ...... APPLICANT AND THE STATE.................................................................... RESPONDENT ZNTABA,J. Mr. N. Supedi on brief for Mr. F. Maele, Counsel for the Applicants Mr. M. Mtonga, Counsel for the Respondent Mr. Nkhwazi, Court Clerk CORAM NtabaJ. - - - - -1-.-0- '.f-HE- BA-l-b-APPLIG-A-'.f-1(:)N- - - - - - - - - - - - - - - - - - - - - - RULING 1.1 The Applicant Symon James filed an application for bail under section 42(2)(e) of the Constitution as read with sections 118, 161 A and 161 G of the Criminal Procedure and Evidence Code. He prayed that he be released from custody pending trial on conditions that the court deems just, fit and proper. He filed an affidavit to support their application as well as skeleton arguments which they adopted in their entirety. 1.2 The Applicant is aged 35 and hails from Wilson village under Traditional Authority Nkula in Machinga district. He is married with five (5) children and Symon James v Republic - 1.3 1.4 1.5 he is a farmer. At the time of the arrest he was living in Mwedini village in Machinga. The Applicant is accused of murdering one Tobias on 261 h May, 2015. The said Tobias Mwale had been apprehended by people after burglarizing Francis Makaluka's house in Mwedini village. The said Tobias who was escorted to Police was said to have died following a head injury. The Applicant was arrested by Machinga Police on 28 1 h May, 2015 and is currently remanded at Domasi Prison. The Applicant argued that bail is a right that is constitutionally guaranteed to them under section 42(2)(e). Furthermore he argued that _Fadweck Mvahe v Republic, MSCA Crim. Apl. No. 25 of 2015 laid down some important principles which the court should take into account when considering bail. The court held that it has power to release on bail a person accused of any offence including murder. Secondly, the right to bail stipulated in section 42)(2)( e) is not an absolute right. It is subject to the interest of justice. This section still reserves the discretion to the courts and it makes the position absolutely clear that the courts can refuse bail if they are satisfied that the interest of justice so require. Lastly that the burden is on the State to prove that it would not be in the interest of justice to grant bail to a murder suspect. The Applicant prayed that the law plus his submitted factors gave the court the discretion to grant them bail. The State filed an affidavit in response and skeleton arguments which they adopted at the hearing. They indicated that the facts deposed were gathered CID Officer Gama ofMachinga Police. He confirmed the arrest of the Applicant as well as indicated that the evidence showed he threw a metal bar at the deceased when he tried to flee. This resulted in a wound on his neck from which he died from. The State indicated that the investigations were completed and that the Applicant had been in custody for nine (9) months. The State indicated that the interest of justice were in favour of the Applicant as such they were not opposing the bail application. 2.0 COURT'S DETERMINATION 2.1 This court recognizes that the constitutional right to bail is enshrined in section 42(2)(e) of the Malawian Constitution. Malawian law also recognizes that the right to bail is not an absolute right and is subject to limitations of the interests ___ _________ of justice. Their Lordshi s in th_e_M_ va_h_e_ ca_s_e_s_ta_t_e_d_th_a_t_-_____________ _ • "Just to recapitulate, we have indicated that it is common ground that the High Court has power to release on bail any person accused of any offence including murder. We have indicated also that it is common case that the right to bail stipulated in section 42(2)(e) of the Constitution is not an absolute right; it is subject to the interests of justice. " 2.3 Courts, therefore must be mindful that in dealing with bail applications, they should ensure and remember that the interest of justice is fundamental and that all circumstances of the case should be weighed against this fundamental principle. Secondly, such interest should be carefully examined and properly Symon James v Republic - balanced for both the State and the Applicant. This court is very aware that the granting of bail is further restricted by the court's discretion after examining all the issues laid before it. Notably, this balancing act is the court's duty and should be exercised by taking into account the Constitutional provisions as well as all other legal requirements. 2.2 In this application, the first issue would be pretrial custody. The Criminal Procedure and Evidence Code has set down in section 161 G that pretrial detention for homicide suspects shall be ninety (90) days and after the elapse of the said period, the State has to petition the court requesting for an extra thirty (30) days. Notably in terms of the Applicant herein, it has been indicated that he arrested on 2th May, 2015 thereby confirming that he has overstayed on remand. 2.3 Furthermore the Bail Guidelines Act have in Guideline 4 of Part II, stipulates that- The principles which the court should take into account in deciding whether or not bail should be granted include the following- (a) the likelihood that the accused, if released on bail, will attempt to evade his or her trial; and in considering this principle the court may, where applicable, take into account the following factors- the nature and the seriousness of the offence for whether the accused is in custody on another (i) which the accused is to be tried; the strength of the case against the accused and (ii) the temptation that he or she may in consequence attempt to evade his or her trial; the nature and the severity of the punishment (iii) which is likely to be imposed should the accused be convicted of the offence against him or her; (iv) charge; (v) the emotional, family, community or occupational ties of the accused to the place at which he or she is to be tried; (vi) assets are situated; the means and travel documents held by the (vii) accused which may enable him or her to leave the country; (viii) 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 (ix) readily be effected should he or she flee across the borders of the Republic in an attempt to evade his or her trial; and (x) any other factor which in the opinion of the court should be taken into account; the assets held by the accused and where such - 2.4 Markedly, the State has raised no objection stating that the facts and the law are in favour of granting of bail because firstly they have breached the statutory prescribed pretrial detention period. Secondly, the investigations are complete and are thus asking the court to exercise its discretion to grant bail. - Symon James v Republic 2.5 This court upon determination of the facts and law as argued by the Applicant, that is, having a permanent place of abode, familial ties in Malawi and overstaying in detention. This coupled with the State's no objection. Consequently, recognizing that bail is a constitutional right although not absolute but available to all accused as long as the interests of justice require, this court therefore grants the Applicant his prayer. 2.6 Bail is hereby granted. 3.0 ORDER 3.1 The Applicant is therefore bound on the following conditions - 3.1.1 he pay a bail bond of a cash sum ofK25,000.00 into Court before being released; 3.1.2 he produces two (2) sureties and each surety to be bonded in the sum ofK50,000.00 not cash. The said sureties be examined by the Registrar within twenty one (21) days of this order on a date and time to be fixed by her; 3 .1.3 he reports every Monday and Friday to Machinga Police Station except if required to report to Court on the same day; 3.1.4 surrender any travel documents to the said Police Station and not to leave the country without the written authority of the officer-in-charge of the Police Station; 3.1.5 seek written permission from the officer-in-charge of the said Police Station if they wants to travel outside Machinga; 3.1.6 he be bound to keep the peace and refrain from tampering with state witnesses; and 3.1.7 he not commit any crime during the subsistence of his bail. I order accordingly. Made in chambers this 17th day of March, 2016. - Z. J. V. Ntaba Judge Symon James v Republic 4