Court name
Supreme Court of Zimbabwe
Case number
SC 2 of 2007
Crim. Application 317 of 2006

S v Hitschmann (317/2006) (SC 2 of 2007, Crim. Application 317 of 2006) [2007] ZWSC 2 (01 February 2007);

Law report citations
Media neutral citation
[2007] ZWSC 2
























DISTRIBUTABLE (1)



Judgment No. SC. 2/07


Crim.
Application No. 317/2006










PETER MICHAEL HITSCHMANN
v THE STATE









SUPREME
COURT OF ZIMBABWE


HARARE,
JANUARY 31 & FEBRUARY 2, 2007









E Matinenga,
for the applicant







V Shava,
for the respondent










Before:
GWAUNZA JA; In Chambers, in terms of r 31 of the Supreme Court Rules.






After
hearing argument from both counsel in this matter, I dismissed the
appeal and indicated the reasons would follow. These are
the
reasons.





The
applicant is appealing, with leave of the High Court, against that
court’s refusal to grant him bail pending finalisation
of his
criminal trial.






The
applicant was arraigned before the High Court facing charges under s
10 of the Public Order and Security Act [
Cap
11:17
].
This followed the discovery by the police of a large assortment of
weapons at his residence in Mutare. The charge preferred against
the
applicant was of conspiracy to possess weapons of insurgency,
banditry, sabotage and terrorism in contravention of the section
referred to.


Following
his arrest and detention, the applicant unsuccessfully applied to the
High Court for bail. He thereafter made three other
applications for
the same relief, on the basis of changed circumstances, but was
unsuccessful in all attempts. The last of these
three applications
was made after the commencement, but before the end, of the trial,
which started on 31 October 2006. It was not
possible to complete
the trial during the High Court circuit in Mutare, a circumstance
that led to its adjournment until the next
circuit session.





In
the court
a quo,
the “changed circumstances” that the applicant relied on were
essentially -


(a)
the delay in the commencement of the trial, necessitated
primarily by the                   eleventh
hour amendment by the State, to the charge sheet;


(b)
an amendment to s 27 of the Criminal Law Codification Reform
Act,
[Cap      9:23],
whose effect was to give   the court the
discretion to sentence      an accused person
convicted of the same charges as those being faced by
     the applicant
in
casu
, to
life imprisonment or a lesser term; and


(c)
the fact that, unlike in the case of the  earlier applications,
the applicant at                  the
time if his fourth application for bail, had filed his defence
outline, that                  is,
an answer to the charges that he was facing.





The
learned Judge in the court
a
quo,
while finding
that indeed, some circumstances had changed, was not satisfied that
the changes warranted the admission of the applicant
to bail. The
learned Judge
a quo
found no merit in the
argument concerning the delay in the taking off of the trial, and
noted with displeasure that the trial had
been allocated two days, a
period he felt would in any case have been too short for a trial of
that nature. Thus, even if the trial
had taken off in earnest, it
would still have had to be adjourned until further notice at the end
of the two days. Given this state
of affairs, it was the learned
Judge’s view that the applicant could not have been any more
prejudiced than he would have been
had the trial taken off without
any initial delays.





The
learned trial Judge’s reasoning, in my view, cannot be faulted.
Before me, the submission was made for the respondent (and
was not
decisively refuted by the applicant) that the trial of the accused
was set to resume during the first term of the 2007 Court
calendar.
This translated to a few weeks at the most, and I am not, therefore,
persuaded enough of a delay has been proved to merit
interference
with the determination of the court
a
quo.





Concerning
the amendment to s 27 of the Criminal Law Codification and Reform Act
[
Cap 9:23]
it was the learned Judge’s view that the amendment in question did
not in any way reduce the seriousness of the offence with which
the
appellant was charged, since the maximum sentence remained the same.





I
can, again, find no fault with the reasoning and conclusion of the
court
a quo
on this point. My view is that the amendment in question can only be
seen in the light of an acknowledgment, by the lawmakers, of
the fact
that the circumstances of each case generally differ and, therefore,
that the maximum penalty of life imprisonment may not
be the
appropriate sentence in all cases in which a conviction is secured.





The
charges that the applicant is facing appear to be quite serious. For
instance, he has submitted that among the weapons in his
possession
were some that had been “dumped” at his premises by people who
were themselves afraid to surrender them to the police.
For purposes
of the charges the applicant is facing, such weapons would not be
regarded as licensed.





The
seriousness with which the legislature or the court view a crime is,
in any case, not the only factor taken into account in
assessing an
applicant’s suitability for bail. This is illustrated by the fact
that applicants facing very serious charges like
murder have in many
cases been admitted to bail while others facing less serious offences
have been denied bail.





Therefore,
even were the amendment to the law in question to be taken as an
indication that the offence was no longer viewed as
serious, that in
itself would not have absolved the applicant from proving his
suitability for bail on other grounds. There is,
in my view,
therefore, no merit in the applicant’s contention that the
amendment to s 27 of the Criminal Law Codification and Reform
Act had
the effect of constituting changed circumstance meriting interference
with the determination of the court
a
quo.





The
applicant argues further that his submission of a defence outline
should be viewed as a changed circumstances. The learned
Judge court
a quo
was, in my view, correctly not swayed by this argument. I agree with
the Judge’s observation, and conclusion, that a defence outline,
by
its nature has to be tested through the process of cross-examination,
before its credence can be said to have been established.





The
purpose of a defence outline is, basically, to provide an accused
person with the opportunity to explain his attitude in relation
to
the charge he is facing, or to indicate the basis of his defence
1.
It is only after a trial that the court can determine whether or not
an accused person has proved the defence set out in his defence
outline. Before the defence outline is tested thus, it would be, in
my view, be difficult to attach such weight to it as would constitute
a changed circumstance meriting interference with an earlier
determination concerning bail.





I
was in the final analysis not satisfied the applicant had established
any misdirection on the part of the learned Judge
a
quo
, as to warrant
interference with his determination.





Hence
my dismissal of the appeal.

















Henning,
Lock Donagher & Winter
,
applicant’s legal practitioners


Attorney-General’s
Office
, respondent’s
legal practitioners



1
Criminal
Procedure in Zimbabwe

by John Reid Rowland at pp 16-34