Shadreck Ndhlovu Chiduza Matare v The State

The applicant was convicted of contravening s 126(3) of the Criminal Law Codification and Reform Act (Armed Robbery) and sentenced to 10 years imprisonment, with 4 years suspended on conditions of good conduct (effective 6 years). On 13 January 2010 at around 7:30 pm, four accused persons attacked the complainant's farm. They announced they were robbers from Harare and demanded 1½ kg gold and money, threatening to kill everyone. During the robbery, the assailants called out names including "Tau" and "Shaddie" (or "Shaddies/Robbie"). Two firearms were stolen: a long range rifle (serial no. 4107G) and a short range rifle (serial no. 26457A). The applicant was subsequently arrested in connection with another robbery at Sengu shop in Norton. During investigations, police were led by the applicant to his home where a CZ pistol was recovered from under his bed, and to his field where the stolen rifle (serial 4107G) was unearthed. The applicant's wife witnessed these recoveries. Groceries stolen from Sengu were also found in possession of the applicant's wife. The applicant applied for bail pending appeal.

• Whether the applicant should be granted bail pending appeal
• Whether the applicant had prospects of success on appeal
• Whether the recovery of firearms was properly admitted into evidence without a trial-within-a-trial
• Whether s 258(2) of the Criminal Procedure and Evidence Act permits admission of evidence recovered through indications without admitting extra-curial statements
• Whether procedural requirements regarding extra-curial statements and indications were properly followed

The application for bail pending appeal was dismissed.

Section 258(2) of the Criminal Procedure and Evidence Act permits the admission of evidence recovered as a consequence of information or indications given by an accused person, notwithstanding that such information forms part of a confession or statement which is not otherwise admissible against the accused. Where the prosecution does not seek to admit extra-curial statements but only the physical evidence recovered through indications, it is not incumbent on the court to conduct a trial-within-a-trial. For bail pending appeal to be granted, an applicant must demonstrate reasonable prospects of success on appeal; where the evidence against the accused is strong and coherent, including identification through names mentioned during the crime and possession of stolen property directly linked to the offence, and where the trial court properly exercised its sentencing discretion, there are no prospects of success and bail will be refused.

The court noted that the trial court and prosecutor were "alive throughout proceedings to the need to follow the procedural requirements regarding extra-curial statements and indications" as evidenced by specific pages of the record (pages 71, 76-77, and 79). The court observed that the coincidence of the applicant's name being mentioned twice during the robbery and his possession of the stolen firearms used in the robbery could not be dismissed as mere coincidence. The court acknowledged that in applications for bail pending appeal, the established factors to be considered are: (1) the likelihood of abscondment; (2) the prospect of success on appeal; (3) the potential length of delay before the appeal is heard; and (4) the right of an individual to liberty, characterizing this position as "fairly settled."

This case clarifies the application of s 258(2) of the Criminal Procedure and Evidence Act in Zimbabwean criminal procedure, confirming that evidence recovered through indications or information given by an accused can be admitted without admitting the extra-curial statements themselves, and without requiring a trial-within-a-trial. The case also demonstrates the strict approach courts take to bail pending appeal in serious violent crimes, particularly armed robbery, where there is strong evidence linking the accused to the offence. It reinforces the principle that bail pending appeal requires demonstrable prospects of success, not merely arguable grounds.