Edward Morris Barrows v The State

The appellant and six others were jointly charged with armed robbery. Their trial commenced in the High Court on 18 February 2002 and was adjourned on 22 February 2002. The trial judge denied bail pending resumption of trial. On 17 June 2002, when the trial was scheduled to continue, the appellant and two co-accused applied for postponement on grounds of inadequate consultation between the Attorney-General's office and their legal practitioners. The judge postponed the matter to 5-9 August 2002. Immediately thereafter, the appellant and two co-accused applied for bail, arguing that the postponement constituted changed circumstances. They submitted that three co-accused who had been granted bail had not absconded and they were prepared to be bound by more stringent conditions. The trial judge refused the bail application.

• Whether a postponement of trial constitutes changed circumstances justifying reconsideration of a bail application under s 116(1)(c)(ii) of the Criminal Procedure and Evidence Act
• Whether the length of time in custody constitutes changed circumstances for purposes of a fresh bail application
• The scope of the Supreme Court's power to interfere with the High Court's decision in bail applications

The appeal was dismissed.

A postponement of a criminal trial does not automatically constitute changed circumstances for purposes of s 116(1)(c)(ii) of the Criminal Procedure and Evidence Act justifying reconsideration of a bail application. Each case must be considered on its own facts. The fact that co-accused persons have been granted bail and have not absconded, where this fact was known at the time of the initial bail refusal, does not constitute changed circumstances. The Supreme Court's power to interfere with bail decisions is limited to cases where there is a misdirection, irregularity, or improper exercise of discretion that vitiates the lower court's decision.

The court noted that it was not apparent from the record whether the time lapse standing on its own was raised as a changed circumstance by the appellant. Even if the State's suggestion of a possible misdirection regarding inadequate weight given to time lapse had merit, such a misdirection would not be of such a nature as to vitiate the court's decision to deny bail.

This case clarifies the interpretation and application of s 116(1)(c)(ii) of the Criminal Procedure and Evidence Act in Zimbabwe regarding what constitutes 'changed circumstances' for purposes of reconsideration of bail applications. It establishes that a mere postponement of trial does not automatically constitute changed circumstances warranting fresh consideration of bail. The case also reinforces the limited scope of appellate intervention in bail decisions, emphasizing that the Supreme Court will only interfere where there is misdirection, irregularity, or improper exercise of discretion of such nature as to vitiate the lower court's decision.