ATTORNEY-GENERAL v PHIRI 1987 (2) ZLR 33 (H)

Flynote

Criminal procedure — bail — refusal of on grounds that accused likely to commit further offences — evidence that he has already done so whilst on bail and has long criminal record — onus on accused to show no likelihood of repetition — test to be applied.

Headnote

The fundamental principle governing the court's approach to the granting of bail is that of upholding the interests of justice. This requires the court, as expeditiously as possible, to fulfil its function of safeguarding the liberty of the individual, while at the same time protecting the administration of justice and the reasonable requirements of the State. The mere possibility of the accused committing further crimes, standing alone, would not be sufficient to outweigh the accused's right not to be deprived of his freedom. However, when to a bad criminal record is added the allegation, on evidence of substance, that the accused committed further and similar crimes when on bail, the matter becomes highly persuasive and cogent. A person who commits crimes while on bail shows a disregard for the rule of law and a contempt for the administration of justice, and the onus would be on him to satisfy the court that there is no likelihood of repetition if granted bail.

In examining the conduct in question, the court should not be restricted to a decision as to whether the conduct might be a possible exception to the basic principle that an accused person should not be denied bail unless the administration of justice would be prejudiced by bail being granted. The test should be whether there is a real danger or a reasonable possibility that the due administration of justice will be prejudiced if the accused is admitted to bail.

In the absence of exceptional circumstances, it would be irresponsible and mischievous for a judicial officer to allow bail to a person who has given every indication that he is an incorrigible and unrepentant criminal.