Alpha Ellard v The State and Charles Musona v The State

The two applicants, together with two other accused persons, were being jointly charged with murder as defined in s 47 of the Criminal Law (Codification and Reform) Act. The trial had commenced but was postponed indefinitely due to insufficient time allocation. At the time of postponement, the State had closed its case and the first accused person, Alpha Ellard, had opened his defence case and was being cross-examined. Both applicants applied for bail. Prior to their indictment, the applicants had been out of custody and did not abscond despite being aware of the serious allegations against them. A co-accused person, Rosaria Musona, had already been admitted to bail. The evidence suggested that the fourth accused person had inflicted the heavy blows on the deceased, including striking him on the head with a pump and locking him in a house. The State witness to the events was intoxicated on one of the days and provided unsatisfactory evidence. Charles Musona and Rosaria Musona had apparently helped the deceased escape from the house where Alpha Ellard and the fourth accused were sleeping.

• Whether the applicants should be granted bail pending the conclusion of their trial
• Whether there were compelling reasons justifying the applicants' continued detention as required by s 50(1)(d) of the Constitution
• Whether it was in the interests of justice to detain the applicants in custody in terms of s 117(2) of the Criminal Procedure and Evidence Act
• Whether there was a likelihood that the applicants would abscond if released on bail given the seriousness of the charge and potential sentence

Both applicants (Alpha Ellard and Charles Musona) were admitted to bail subject to the following conditions: (1) Each applicant shall deposit US$100 with the Registrar of the High Court at Harare; (2) The applicants shall continue to reside at their respective residences at Serui Source Farm Compound, Norton, until the trial has been finalised; (3) The applicants shall report once every fortnight on a Friday at ZRP Norton Rural Police Station between the hours of 0600 and 1800 hours.

The seriousness of a criminal charge is not on its own a ground for denying a person who has not yet been convicted the right to be admitted to bail. In assessing the risk of abscondment, courts must consider: (i) the nature of the charge and severity of likely punishment; (ii) the apparent strength or weakness of the State case; (iii) the accused's ability to reach another country and absence of extradition facilities; (iv) the accused's previous behaviour; and (v) the credibility of the accused's assurances to stand trial. Where the State has closed its case and there is no risk of interference with witnesses or evidence, where the accused has previously been out of custody without absconding, where the State's case is weak, and where a co-accused in a similar position has been granted bail, there are no compelling reasons justifying continued detention as required by s 50(1)(d) of the Constitution.

The court observed that the evidence led seemed to suggest that the fourth accused person inflicted the heavy blows upon the deceased, being the one who locked the door to the house and struck the deceased on the head with a pump. The court noted that the State witness was intoxicated on one of the days and did not adequately explain unsatisfactory features of his evidence. The court commented that if Charles Musona and Rosaria Musona had helped the deceased escape from the house where Alpha Ellard and the fourth accused were sleeping, this cast doubt on their alleged involvement in assaulting him. The court noted that both applicants had offered only US$20 as bail deposit, which was too little, and that they had not suggested they could not afford a reasonably higher figure, making US$100 more appropriate given the nature of the offences alleged.

This case demonstrates the application of the constitutional right to bail enshrined in s 50(1)(d) of the Constitution of Zimbabwe, which requires compelling reasons for continued detention. It illustrates how Zimbabwean courts balance the seriousness of charges (murder) against other factors in bail applications, particularly where the State's case is weak and the trial has already commenced with the State having closed its case. The judgment emphasizes that the seriousness of the charge alone is not sufficient to deny bail, and that courts must assess the likelihood of abscondment based on multiple factors including the strength of the State's case, the applicant's previous conduct, and credible assurances to stand trial. It also shows the importance of consistent treatment between co-accused persons in similar positions.