Roy Leslie Bennett v The State

The applicant was on bail pending trial on charges of contravening section 10(1)(a) of the Public Order and Security Act (POSA) - possessing weaponry for insurgency, banditry, sabotage or terrorism - and another count of contravening section 6 of the same Act (incitement to commit acts accompanied by the use of weaponry). The applicant had been on bail since 10 March 2009 pursuant to a Supreme Court order. On 14 October 2009, following indictment proceedings, the applicant was committed to prison in terms of section 66 of the Criminal Procedure & Evidence Act. The trial was scheduled for 19 October 2009 at Mutare. The applicant applied for reinstatement of bail, asserting that he had complied with all bail conditions and that the interests of justice would not be prejudiced by granting bail. The State opposed the application on grounds that indictment constituted changed circumstances and that the seriousness of the charges (potentially carrying the death penalty) made the applicant a flight risk.

• Whether indictment proceedings automatically terminate an accused's bail conditions
• Whether the seriousness of charges alone justifies refusing bail
• What is the legal position regarding an accused's right to liberty between indictment and plea
• Whether indictment constitutes 'changed circumstances' justifying refusal of bail
• The interpretation of section 66 of the Criminal Procedure & Evidence Act regarding committal to prison and its effect on bail

The bail granted to the applicant by the Supreme Court on 11 March 2009 in Case No. SC 45/09 was reinstated. The applicant was admitted to bail on the same terms and conditions obtaining as at 14 October 2009 (the day he was committed to prison). The Officer in Charge of Mutare Prison was ordered to release the applicant upon service of the order.

Indictment proceedings do not terminate an accused person's bail conditions. Under the Criminal Procedure & Evidence Act, bail is only terminated when the accused pleads to the indictment (section 167), not at the earlier stage of committal to prison under section 66. The mere seriousness of charges an accused faces does not, on its own, constitute sufficient grounds for refusing bail, provided the accused can demonstrate there is no basis for fear that he will not stand trial. An accused person retains the constitutional right to liberty between indictment and plea, subject to compliance with bail conditions.

The court observed that there is a lacuna in the Criminal Procedure & Evidence Act that prejudices unrepresented accused persons, who are routinely committed to prison upon indictment without opportunity to regularly access the court for bail applications. The court stated that "this area of the Act needs to be revisited so that the prisoner's right to liberty is preserved despite indictment." The court also noted that in practice, where accused persons are legally represented, fresh bail applications are typically made to the High Court before trial commencement and the Attorney-General does not oppose unless there is good cause. The court expressed the view that the applicant "stands to lose more by avoiding his trial than by standing trial" - suggesting factors relevant to assessing flight risk in bail applications involving serious charges.

This case is significant in Zimbabwean criminal procedure law as it clarifies that indictment does not automatically terminate bail. The judgment establishes the important principle that an accused person retains the right to liberty between indictment and plea, and that only pleading to the indictment terminates bail under section 167/169 of the Criminal Procedure & Evidence Act. The case also reinforces the constitutional principles under sections 13 and 18 of the Zimbabwean Constitution regarding the right to liberty and the presumption of innocence. It rejects the notion that seriousness of charges alone justifies refusing bail. The judgment identifies a significant gap in the law affecting unrepresented accused persons and calls for legislative reform to protect their right to liberty during the indictment process.