Percy Mugari v The State

The applicant was charged jointly with other persons on two counts of robbery as defined in section 126(b) of the Criminal Law (Codification and Reform) Act and one count of attempted murder as defined in section 189 read with section 47 of the Criminal Code. Count 1: On 22 February 2021 at around 2000 hours, the applicant and accomplices allegedly robbed a complainant of US$3000.00, a 303 rifle and groceries while armed with firearms, machetes, iron bars, axes and knives. Count 2: On 8 March 2021 at around 2100 hours, the applicant and co-accused allegedly robbed a complainant of US$800.00, cell phones, safety shoes and a reflective jacket. Count 3: During an armed robbery, the applicant and co-accused allegedly hit a complainant on the head with an axe causing unconsciousness, then stole US$4000.00, sugar, rice and meat. The applicant's initial bail application was refused on 10 May 2021. He now applied for bail based on changed circumstances, namely that two of his co-accused (Panashe Tyson Bhunu and Chriswell Mhuru) had been released on bail by the High Court sitting in Harare, and that the State had failed to provide a trial date since April 2021.

• Whether the facts presented by the applicant constituted 'new facts' that arose or were discovered after the initial bail determination as required by section 116(c)(ii) of the Criminal Procedure and Evidence Act
• Whether the new facts changed the basis upon which bail was initially refused such that the applicant should be released on bail
• Whether co-accused persons facing the same charges must be treated the same regarding bail
• Whether it is in the public interest and the interest of justice to release the applicant on bail

The application for bail was dismissed and the applicant was ordered to remain in custody.

For a further bail application under section 116(c)(ii) of the Criminal Procedure and Evidence Act to succeed, the applicant must not only establish new facts that arose or were discovered after the initial determination, but must also demonstrate that these new facts have changed the basis upon which bail was initially refused to such an extent that they warrant release without compromising the reasons for the initial refusal. The release of co-accused persons on bail does not constitute a change in circumstances that alters the assessment of whether an individual applicant should be granted bail, as each application must be determined on its own merits. Where the original grounds for refusing bail (seriousness of charges, strength of prima facie case, flight risk, public interest, and risk to the criminal justice system) remain unchanged, new facts such as the release of co-accused or delay in trial date setting are insufficient to warrant a different outcome.

The court noted that at the time of the initial bail refusal, it had taken judicial notice of the prevalence of armed robbery cases in the country and the need to arrest this 'tide'. The court also observed that the cumulative effect of the factors militating against bail (flight risk, use of firearms, seriousness of charges) constitutes a weighty indication that bail should not be granted. The court emphasized that the purpose of the requirements in section 116(c)(ii) is to prevent the presentation of the same facts or variants thereof over and over again in a bid to obtain bail, and to achieve finality in bail determinations.

This case clarifies the application of section 116(c)(ii) of the Criminal Procedure and Evidence Act regarding bail applications based on changed circumstances. It establishes that merely establishing the existence of new facts is insufficient; the court must determine whether those new facts actually change the basis upon which bail was initially refused. The judgment emphasizes that the release of co-accused on bail does not automatically entitle an accused person to bail, rejecting the argument that co-accused facing the same charges must be treated identically. The case reinforces the principle that considerations of public interest, the proper functioning of the criminal justice system, and the seriousness of charges involving firearms may outweigh procedural factors such as delay in providing a trial date. It demonstrates the court's commitment to preventing abuse of the bail application process through repeated applications based on insignificant changes in circumstances.