Jerico Moyo and 9 Others v The State

Ten applicants faced a charge of murder arising from an incident on 15 February 2022. It was alleged that they teamed up with accomplices and assaulted the deceased by attacking him with an axe and machetes, thereby causing his death. There were eyewitnesses known to the applicants who gave statements to the police indicating that certain applicants were present and acted in common purpose in attacking the deceased and his companions. The applicants did not deny being at the scene but alleged they were being attacked by a violent gang and only later heard of the deceased's injury and death. At the bail hearing, the State conceded to bail for the 1st, 5th, 8th, 9th and 10th applicants, who were accordingly granted bail. The State opposed bail for the 2nd, 3rd, 4th, 6th and 7th applicants on the grounds that they were a flight risk.

• Whether the 2nd, 3rd, 4th, 6th and 7th applicants should be granted bail pending trial
• Whether the applicants posed a flight risk based on the seriousness of the charge, strength of the State's case, and likely penalty upon conviction
• Application of the principles established in Jongwe v S SC 62-02 regarding bail considerations

The bail application was granted for the 1st, 5th, 8th, 9th and 10th applicants (by consent of the State). The bail application was dismissed in relation to the 2nd, 3rd, 4th, 6th and 7th applicants.

The risk to abscond in bail applications can be inferred from the combination of: (1) the seriousness of the charge faced; (2) the prima facie strength of the State's case based on evidence such as vivid eyewitness accounts; and (3) the likelihood of a lengthy custodial sentence upon conviction. These factors constitute 'red flags' that, when present together, justify a finding that the risk to abscond is real and operates against granting bail. In assessing flight risk, courts ascribe to the accused ordinary human motives and fears, recognizing that human nature may move an accused to seek to avoid trial to escape conviction and lengthy imprisonment when facing serious charges with strong evidence and severe penalties.

The court emphasized the importance of the presumption of innocence operating in favour of accused persons before conviction. The court also observed that a conviction of murder 'often attracts a lengthy term of imprisonment', reflecting judicial knowledge of typical sentencing patterns. The court expressed its view on the interpretation of the Jongwe judgment, stating: 'In essence this is what the Jongwe (supra) judgment entailed in my view' - explaining that once the charge is serious, the penalty heavy, and the State case prima facie strong, human nature may move an accused to seek to avoid trial.

This case demonstrates the application of established bail principles in Zimbabwean criminal procedure, particularly the Jongwe v S criteria for assessing flight risk in serious criminal matters. It illustrates how courts balance the presumption of innocence with practical considerations of ensuring accused persons attend trial. The judgment reinforces that where there is a combination of serious charges (murder), strong prima facie evidence (eyewitness accounts), and likelihood of severe punishment upon conviction, courts may infer a flight risk based on ordinary human nature and fears. The case provides guidance on how courts assess the strength of the State's case at the bail stage and the weight given to eyewitness evidence in such assessments.