Tapiwa Madya v The State

The applicant was charged with murder arising from an incident on 7 December 2010 at Kandeya Township, Mount Darwin, where he allegedly unlawfully caused the death of Alex Jomboro by shooting him in the head with intent to kill or realizing that such conduct might cause death. Evidence for both prosecution and defence had been led at trial and the matter was postponed indefinitely for judgment. The applicant then approached the court seeking admission to bail pending finalization of the trial. The investigating officer's evidence indicated that the applicant led police to the recovery of the firearm used to commit the offence at Ruwa. Ballistics reports confirmed that this was indeed the firearm used in the commission of the offence. The applicant denied leading the police to recover the firearm.

• Whether an accused person is entitled to bail pending judgment after evidence has been led in a murder trial
• Whether the constitutional right to bail under s 50 of the Constitution applies to an accused person after trial but before judgment
• Whether the seriousness of the offence and the strength of evidence linking the accused to the crime constitute compelling reasons to deny bail
• Whether there is a risk that the accused will abscond if admitted to bail

The application for admission to bail was dismissed.

The constitutional right to bail under s 50 of the Constitution applies to an accused person even after evidence has been led but before judgment is delivered, as the presumption of innocence still operates. However, where evidence already led in a serious criminal trial strongly links the accused to the offence, the court may deny bail on the basis that awareness of such strong evidence would induce the accused to abscond, making it against the interests of justice to grant bail. In assessing bail applications after trial but before judgment, the court may properly weigh the evidence already tendered to assess the likelihood of the accused attending to receive judgment.

The court observed that the ultimate factual determination of whether the applicant led police to the recovery of the firearm would turn on the credibility of witnesses taken together with the totality of other evidence led, and that this matter was better left for judgment in the main case itself. The court noted that the seriousness of an offence on its own does not always constitute a compelling factor to justify denial of bail, suggesting this must be considered alongside other factors such as strength of evidence and risk of absconding.

This case demonstrates the application of constitutional bail provisions under s 50 of the Constitution in the specific context of bail pending judgment after evidence has been led in a serious criminal trial. It illustrates that while the presumption of innocence continues to apply even after trial but before judgment, the court may consider the strength of evidence already led in assessing the risk of absconding. The judgment confirms that the interests of justice test remains paramount in bail applications, and strong evidence linking an accused to a serious offence may justify denial of bail due to flight risk, even where the constitutional right to bail prima facie applies.