Ewan Alexander Macmillan v The State

The appellant was arrested on 9 May 2007 on a charge of contravening section 3 of the Gold Trade Act [Chapter 21:03] for unlawfully possessing gold without a licence or permit. Police detectives allegedly searched the appellant's residence and recovered two smelted buttons of gold weighing 1.2 kilograms (valued at approximately $356 million) hidden in one of the appellant's shoes in a built-in wardrobe in his main bedroom. The appellant's defence was that the gold was planted in his home either by the police or by some other unknown person. On 11 May 2007, the Magistrates Court sitting at Harare dismissed the appellant's application for bail. The offence carried a mandatory prison term of 5 to 10 years in the absence of special circumstances.

• Whether the magistrate misdirected himself in his approach to the onus of proof in the bail application
• Whether the magistrate properly evaluated the likelihood of the appellant absconding if granted bail
• Whether there were cognisable indications that the appellant would not stand trial if released on bail
• What factors should be considered in determining bail applications under section 117 of the Criminal Procedure and Evidence Act

The appeal against the ruling of the court a quo was upheld and the appellant was admitted to bail by consent. Bail conditions included: deposit of an appreciable amount of money; substantial security in the form of immovable property and an aircraft; specific reporting requirements; and travel restrictions designed to obviate the possibility of abscondment pending trial.

The binding legal principles established are: (1) In bail applications, once police make credible allegations that could provide grounds for refusing bail, the onus is upon the applicant to prove on a balance of probabilities that the court should exercise its discretion in favour of granting bail; (2) A court must identify cognisable indications that an accused will abscond and not stand trial if released from custody - speculation and conjecture are insufficient; (3) A magistrate or judge must apply himself with requisite diligence to evaluate all relevant factors, including assessing the strength of evidence against the accused in light of the defence proffered; (4) The State must place cogent reasons supported by information before the court, and failure to do so precludes a decision to refuse bail; (5) Under section 117(3)(b) of the Criminal Procedure and Evidence Act, courts must consider specific factors including the efficacy of the amount or nature of bail and enforceability of bail conditions in evaluating likelihood of abscondment.

The court noted that the entitlement of an accused person to bail is now regulated in detail by section 117 of the Criminal Procedure and Evidence Act [Chapter 9:07] inserted by section 9 of Act 9 of 2006. The court observed that the State initially opposed bail but subsequently relented from its opposition, and that both counsel were able to agree on fairly stringent but practicable conditions of bail with appropriate guidance from the court. The court noted approvingly that even in serious cases, appropriate bail conditions including substantial monetary deposits, security over property, reporting requirements and travel restrictions can be crafted to address concerns about abscondment.

This case reinforces important principles in Zimbabwean bail jurisprudence, particularly: (1) the proper approach to onus of proof in bail applications - while the onus lies on the accused to justify bail on a balance of probabilities, the State must first make credible allegations that could provide grounds for refusing bail; (2) the requirement that courts must identify cognisable indications that an accused will abscond rather than rely on speculation or conjecture; (3) the need for judicial officers to properly evaluate evidence and apply their minds to specific factors rather than merely pose indeterminate questions; (4) the application of section 117 of the Criminal Procedure and Evidence Act which elaborates specific factors to be considered in bail applications. The case demonstrates that even in serious offences with mandatory penalties, bail may be granted where there are no concrete indications of abscondment and appropriate conditions can be imposed.