Mushore Givemore v The State

The applicant was charged with two offences committed on the same night at different premises: (1) unlawful entry in aggravating circumstances as defined in s 131(2) of the Criminal Law (Codification and Reform) Act [Chapter 9:23], and (2) murder as defined in s 47 of the same Act. His trial had commenced but was postponed sine die due to insufficient time allocated. This was his second bail application, the first having been dismissed on 23 June 2016. The State's evidence included fingerprints linking the applicant to the offences, a pistol recovered from the applicant and co-accused that matched the weapon used in the murder, and indications made by the applicant at the crime scenes.

• Whether there were changed circumstances justifying a second bail application after the first was dismissed
• Whether there were compelling reasons under s 50(1)(d) of the Constitution to justify the continued detention of the applicant pending trial
• Whether the applicant posed a flight risk if released on bail
• Whether admission to bail would jeopardize the administration of justice

The bail application was dismissed.

In a second bail application following the dismissal of an initial application, an applicant must establish changed circumstances or new facts to justify the court revisiting its earlier decision. The mere passage of time does not constitute changed circumstances if it has not affected the strength of the case against the applicant. Where evidence against an accused is overwhelming, the offences are serious and may attract capital punishment or lengthy imprisonment, and there is a likelihood that the accused will abscond if released, these constitute compelling reasons under s 50(1)(d) of the Constitution to justify continued detention pending trial, notwithstanding the presumption of innocence.

The court noted that it was in an advantageous position in this case because, given that the trial had commenced, it could rely not only on the facts alleged in the summary of the State's case but also on evidence from State witnesses who had already testified. This observation suggests that where a trial has commenced, the court's assessment of bail applications may be informed by actual evidence heard rather than mere allegations.

This case illustrates the application of the constitutional right to bail under s 50(1)(d) of the Zimbabwe Constitution, which provides for release unless there are compelling reasons for detention. It demonstrates the court's approach to second bail applications requiring proof of changed circumstances, and the balancing of the presumption of innocence against factors such as the seriousness of the offence, strength of evidence, likelihood of absconding, and protection of the administration of justice. The case also shows that mere passage of time does not automatically constitute changed circumstances warranting reconsideration of a bail refusal.