Mischeck Shamu v The State

This was the applicant's third bail application following two previous unsuccessful attempts. The applicant was charged with murder arising from a violent clash between rival groups of young men that occurred on New Year's Day 2020 at around 1 am in Kwekwe. During the confrontation, the applicant allegedly struck the deceased on the head with an axe, and the deceased was further struck with machetes all over the body, resulting in his death. After the incident, the applicant fled from Kwekwe to Chinhoyi, where he was only apprehended in February 2020 following an anonymous tip-off to police. When arrested, he was using a fictitious name to evade detection. His first bail application in March 2020 (B62/20) was denied due to flight risk and compelling reasons. His second application in October 2020 (B266/20) was withdrawn. The current application was brought under section 116(c) proviso (ii) of the Criminal Procedure and Evidence Act [Chapter 9:07], which requires new facts not previously placed before the court.

• Whether the applicant presented 'new facts' as required by section 116(c) proviso (ii) of the Criminal Procedure and Evidence Act [Chapter 9:07] to justify a fresh bail application
• Whether the completion of police investigations constitutes a new fact warranting reconsideration of bail
• Whether the principle of equal treatment requires that the applicant be granted bail because some of his co-accused persons had been released on bail
• Whether compelling reasons still exist to justify the continued denial of bail despite the new facts presented
• Whether differential treatment of co-accused persons in bail applications is justified based on the strength of evidence against each accused and their conduct after the alleged offence

The bail application was dismissed.

The binding legal principles established are: (1) A fresh bail application under section 116(c) proviso (ii) of the Criminal Procedure and Evidence Act must be based on facts that were either not placed before the court that determined the previous application or that have arisen or been discovered after that determination - mere repetition of previously considered facts does not constitute 'new facts'. (2) Equal treatment of co-accused persons in bail applications means subjecting them to the same objective criteria, not necessarily achieving identical outcomes; differential treatment is justified where there are material differences in circumstances, including the strength of evidence against each accused and their conduct after the alleged offence. (3) The completion of police investigations, while constituting a new fact that reduces the risk of interference with investigations, does not ipso facto entitle an accused to bail if other compelling reasons justifying detention remain, particularly the risk of absconding. (4) Courts hearing bail applications are entitled and indeed required to make preliminary findings on the relative strength of the prosecution case against an accused, which when coupled with factors such as seriousness of the offence and likely sentence, enables proper assessment of flight risk.

The court made several non-binding observations: (1) It associated itself with the sentiments expressed in S v Samson Ruturi HH 26-30 that while the general principle is that jointly charged persons should be treated the same way, in practice differential treatment may be justified by factors either personal to the accused or related to the offence. (2) The court noted that the threshold and evidentiary materials in bail applications differ from those at trial - hearsay evidence (subject to qualifications) is acceptable in bail applications but not at trial, and oral evidence is optional in bail applications. (3) The court observed that it was 'sadly all too familiar' with scenarios of violent clashes between rival 'gangs' of young men, reflecting judicial concern about such incidents. (4) The court noted that withholding important explanatory facts in an initial bail application and only presenting them later would lend credence to the conclusion that they are nothing more than an afterthought and should be rejected.

This case is significant in Zimbabwean criminal procedure law for clarifying the application of section 116(c) proviso (ii) of the Criminal Procedure and Evidence Act regarding fresh bail applications based on 'new facts'. It establishes important principles regarding: (1) what constitutes 'new facts' for purposes of subsequent bail applications - facts must either not have been placed before the previous court or must have arisen/been discovered after that determination; (2) the principle of equal treatment in bail applications for co-accused does not mandate identical outcomes but rather the application of the same objective criteria to different circumstances; (3) differential treatment of co-accused persons can be justified based on the relative strength of evidence against each accused and their conduct after the alleged offence; (4) completion of investigations, while a relevant new fact, does not automatically entitle an accused to bail if other compelling reasons exist; and (5) courts hearing bail applications must make preliminary findings on the strength of the prosecution case, which is a permissible and necessary exercise distinct from the determination at trial.