S v AITKEN 1992 (2) ZLR 463 (S)

Flynote

Criminal procedure — bail — further application after some time had elapsed in terms of s 106(1)(a) of the Criminal Procedure and Evidence Act [Chapter 59] — application refused on basis of absence of fresh facts — appeal against refusal — whether passage of time fresh fact that court can take into account when dealing with further bail application

Where bail has previously been refused and a further application for bail is made to the High Court in terms of s 106(1)(a), proviso (ii) to that section requires such application can only be entertained if fresh facts are elicited that were not before the court which refused bail. In the present case the passage of time since the previous application, together with the apparent failure of the State to strengthen its case since the earlier application, constituted a fresh fact in the further application. As the lower court had misdirected itself in this regard, the Supreme Court was now at liberty to exercise its own discretion. The strength of the State case was a salient factor in assessing the risk of the appellant absconding. The failure by the State to strengthen its case over time, weighed with other favourable factors, just tipped the scales in favour of granting bail. Bail was therefore granted on stringent conditions.