Farai Chingombe v The State

The appellant was charged with 15 counts of fraud in contravention of section 136(a)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Between July and August 2021, he advertised to complainants to invest in an online company called Crypto Shares, misrepresenting that each complainant would receive a return on investment on the maturity date (approximately one month from investment) and that the scheme had a lifespan of three years. The investments ranged from USD300 to USD2400, totaling USD18,650.00 in prejudice. None of the amounts were repaid on their respective maturity dates and nothing was recovered. The appellant was arrested and appeared before the Magistrates Court in Hwange on 11 October 2021. After a contested bail hearing on 19 October 2021, the magistrate refused bail. The complainants positively identified the appellant and had handed him over to police.

• Whether the magistrate misdirected himself in refusing to grant bail to the appellant
• Whether the appellant was a flight risk
• Whether the appellant would interfere with, conceal or destroy evidence if released on bail
• Whether an appellate court should interfere with the exercise of discretion by the court a quo in bail matters

The appeal was dismissed as devoid of merit. The decision of the Magistrates Court refusing bail was upheld.

An appellate court will not interfere with a magistrate's decision to refuse bail unless satisfied that the magistrate misdirected himself by acting on wrong principles, allowing extraneous or irrelevant considerations to affect the decision, making mistakes of fact, or failing to consider relevant matters. Even where the appellate court may have a different view, it should not substitute its own view for that of the magistrate as this would constitute unfair interference with the proper exercise of judicial discretion. A finding that an accused is a flight risk based on the strength of the state's case and the potential for a lengthy prison term, combined with concerns about evidence tampering in cases involving online evidence, can properly support a refusal of bail.

The court observed that bail conditions to prevent interference with evidence (such as blocking access to an online company) cannot be considered for the first time on appeal if they were not placed before the court a quo. The court noted that a concession by the respondent was not properly taken as it was based on a misunderstanding of the case and misreading of the magistrate's judgment - specifically the confusion between the three-year lifespan of the investment scheme versus the one-month maturity dates for individual investments.

This case reinforces the well-established principle in Zimbabwean criminal procedure that appellate courts will exercise restraint in interfering with bail decisions made by lower courts. It demonstrates the high threshold required to overturn a magistrate's exercise of discretion in bail matters - the appellant must show that the magistrate acted on wrong principles, considered irrelevant matters, made factual errors, or failed to consider relevant matters. The case also illustrates the application of these principles in the context of fraud involving online/digital evidence, recognizing the risk of evidence tampering in such cases.