Wendy Chinhanga v The State

The applicant was indicted on a charge of murder with her trial set for 16 February 2015. Prior to indictment, she was out of custody on bail which terminated upon indictment by virtue of s 66 of the Criminal Procedure and Evidence Act [Chapter 9:07]. Her trial did not commence on the scheduled date, and the state could not indicate when the trial would proceed. The state opposed bail solely on the basis that they wanted the applicant to remain in custody until her pro deo counsel appeared and filed her defence outline. The applicant had previously been on bail before indictment and had dutifully complied with all bail conditions.

• Whether an accused person who was previously on bail and complied with bail conditions should be granted bail after indictment when the trial does not commence as scheduled
• Whether the desire of the prosecution to see a defence outline constitutes a compelling reason to refuse bail
• What constitutes 'compelling reasons' to refuse bail under the Constitution

The applicant was admitted to bail on the following conditions: (1) She deposits $20.00 with the registrar of the court; (2) She resides at No. 2785 Ruvimbo Branch Epworth Harare until the matter is finalized; (3) She reports at Domboramwari Police Station every Monday between 6 am and 6 pm.

In terms of the Constitution, before an accused person is refused bail there must be compelling reasons for doing so, not fanciful wishes of state counsel not justifiable by any measure. An applicant for bail cannot be denied bail for no other reason than that a public prosecutor wants to have sight of a defence outline. An applicant who was on bail before indictment and dutifully complied with bail conditions is unlikely to jeopardize the administration of justice merely because a trial date has been set. In the absence of evidence suggesting otherwise, bail should be routinely granted.

The court made strong observations cautioning the National Prosecuting Authority to take care not to oppose admission to bail of those they are prosecuting who have not yet been found guilty as a pastime. The court characterized the denial of bail merely to await a defence outline as "unconscionable and cannot be tolerated in a democratic society." The court also noted that the state strangely opposed bail despite not suggesting when the trial would commence.

This case is significant in Zimbabwean criminal procedure law as it reinforces constitutional protections regarding bail and emphasizes that the prosecution cannot oppose bail without compelling reasons. It establishes that prior compliance with bail conditions and the absence of evidence suggesting flight risk or prejudice to justice should result in bail being routinely granted. The judgment serves as a warning to the National Prosecuting Authority against opposing bail applications without proper justification, particularly in cases where accused persons have previously demonstrated compliance with bail conditions.