Peter Michael Hitschmann v The State

On 6 March 2006, police searched the applicant's residence at 33 Arcadia Road, Tiger Kloof, Mutare. The applicant was a registered firearms dealer. The search resulted in recovery of a large assortment of weaponry including 7 functional military weapons (7.62mm EN rifle with telescope, 7.62 AK rifle, 9mm MPs SMG with silencer, 8 x 9mm UZI SMGs capable of rapid and automatic fire), a signal pistol, and various grenades and riot control munitions. Inspector Francis Cole, an armourer with 2 years 9 months experience from Police Forensic Ballistics Identification Office, examined and classified the weapons as military weapons. The applicant was arrested and charged with conspiracy to possess weapons for insurgency, banditry, sabotage or terrorism contrary to section 10 of the Public Order and Security Act [Chapter 11:17], an offence punishable by life imprisonment. Chitakunye J previously dismissed a bail application on 23 March 2006 on grounds that: (1) the charge was serious; (2) there was overwhelming evidence; and (3) he doubted the effectiveness of bail conditions. The applicant brought a fresh bail application based on alleged changed circumstances.

• Whether the passage of time since the initial refusal of bail constituted changed circumstances warranting the granting of bail
• Whether the dropping of charges against co-accused persons constituted changed circumstances
• The proper interpretation and application of section 10 of the Public Order and Security Act regarding the presumption against an accused found in possession of prescribed weaponry
• The approach courts should take when considering bail applications in cases involving threats to State security

The application for bail was dismissed with no order as to costs.

Changed circumstances warranting a fresh grant of bail after initial refusal require not merely the passage of time, but the passage of considerable time without progress in State investigations. Where the State proceeds with convenient speed and diligence, setting down a matter for trial within a reasonable time after the initial bail refusal, and has strengthened rather than weakened its case, there are no changed circumstances justifying bail. Section 10(2) of the Public Order and Security Act creates a presumption against an accused person found in unlawful possession of prescribed weaponry (particularly weapons referred to in section 24 of the Firearms Act), shifting the burden to the accused to prove on a balance of probabilities that he did not possess the weaponry with the intention that it be used for insurgency, banditry, sabotage or terrorism.

The court observed that courts invariably take a serious view of offences which constitute a threat to State security and public safety, and that the gravity of such offences is such that courts cannot afford to experiment and play legal games while the security of the State and society at large is at stake. The court also noted in passing that the State was contemplating preferring even more serious treason charges against the applicant based on the same facts, which the court characterized as 'a turn for the worse rather than the better.' The court commended the State for proceeding with convenient speed and diligence in prosecuting the matter.

This case is significant in Zimbabwean criminal procedure for its application of the test for changed circumstances in renewed bail applications, particularly in cases involving State security. It demonstrates the court's restrictive approach to granting bail in cases involving serious weapons offenses and threats to State security. The judgment affirms that mere passage of time is insufficient to constitute changed circumstances - there must be passage of considerable time coupled with lack of progress in investigations. The case also illustrates the reverse onus created by section 10(2) of the Public Order and Security Act, which removes the presumption of innocence from accused persons found in possession of prescribed weaponry, requiring them to establish their innocence on a balance of probabilities. It reflects the court's unwillingness to 'experiment and play legal games' where State security is at stake.