Jackson Chigwasa and Others v The State

The applicant, Jackson Chigwasa, was charged with murder under section 47 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] jointly with two co-accused, Benjamin Zulu and Macdonald Munyaradzi Matorera. The charge arose from a murder committed in the course of a robbery. The applicant had previously been denied bail by the High Court. His two co-accused were subsequently granted bail by consent of the State on 5 September 2014. The applicant's fingerprints were found at the scene of the crime and on the motor vehicle used to transport stolen property. He made indications to police that led to the recovery of the bulk of the stolen property. The evidence against the co-accused was weaker, as they were only arrested based on the applicant's implication of them, with no independent evidence linking them to the offence.

• Whether the granting of bail to co-accused persons constituted changed circumstances warranting the grant of bail to the applicant
• Whether jointly charged accused persons should be treated equally in respect of bail applications
• Whether there was sufficient basis to differentiate the treatment of the applicant from his co-accused for bail purposes

The application for bail on the basis of changed circumstances was dismissed.

The granting of bail to co-accused persons does not automatically constitute changed circumstances warranting bail for a jointly charged accused where there is justifiable basis for differentiation. Factors personal to individual accused persons, including the strength of evidence against them and their individual risk of absconding, may set them apart for purposes of the grant or refusal of bail. Where evidence against one accused is overwhelming (including physical evidence such as fingerprints and admissions leading to recovery of stolen property) while evidence against co-accused is weak, differential treatment in bail applications is justified and does not violate the principle of equal treatment.

The court noted that in practice, it is not often that persons jointly charged with the same offence are treated equally in every respect, as factors personal to them usually differ. The court also observed that where an offence is punishable by death and investigations are complete with trial imminent, the "day of reckoning" approaching might induce an accused to abscond, which is a relevant consideration in bail applications.

This case illustrates the application of the principle that while co-accused should generally be treated equally, differential treatment is justified where their personal circumstances and the strength of evidence against them differ materially. It emphasizes that the mere fact that co-accused have been granted bail does not automatically constitute changed circumstances warranting bail for all accused, particularly where the evidence against different accused varies significantly in strength.