Dorcas Dorothy Deri and Elizabeth Nyasha Deri v The State

The appellants were arraigned before Mbare magistrates court charged with unlawful entry into premises in aggravating circumstances as defined in s 131(a) read with s 131(2)(e) of the Criminal Law (Codification and Reform) Act. It was alleged that on 26 July 2021 at house number 9025 Budiriro 5B, the two accused forced open the main back door using an iron bar to gain entry and stole various items including a 65 inch Telefunken television, 43 inch LG television, DVD decoder, red carpet, bucket of loose biscuits, 3 remotes and cash amounting to US$550.00 from Jacqueline Divura, the lawful occupier. The appellants initially pleaded guilty but then qualified their plea by stating they did not take the decoder and cash. The plea was altered to not guilty. The magistrate refused bail, finding that the partial guilty plea indicated likelihood of a custodial sentence which would induce abscondment. Some recoveries had been made at the second accused's house and there were eyewitnesses.

• Whether the magistrate misdirected herself in refusing bail pending trial
• Whether the court a quo properly considered all relevant factors in the bail application
• What is the proper approach in an appeal against refusal of bail

The appeal against refusal of bail was dismissed on 25 August 2021. The judgment provided reasons for dismissal following a request from the appellants.

In an appeal against refusal of bail, the appellate court must determine whether the lower court misdirected itself when refusing bail. The appeal must be directed at and attack the judgment of the court a quo, identifying specific misdirections. An appellate court is restricted by the record and cannot substitute its own discretion for that of the lower court. New defences or explanations not raised before the court a quo and not appearing on the record cannot form the basis for finding a misdirection in the refusal of bail.

The court noted that the appellants' defence on appeal - that the complainant had handed over the property as security for a debt of $600 USD owed to the second accused - was not on the record and had not been raised before the magistrate. This observation, while not strictly necessary for the decision, highlights the importance of presenting all relevant defences and explanations at the earliest opportunity in criminal proceedings, particularly in bail applications.

This case reinforces the well-established principle in Zimbabwean criminal procedure that an appeal against refusal of bail must identify specific misdirections by the lower court. It emphasizes that an appellate court cannot substitute its own discretion for that of the lower court and is restricted by what appears on the record. The case demonstrates that new defences or explanations raised for the first time on appeal, which were not presented to the court a quo, will not be considered in determining whether bail was properly refused.