View source for Likelihood that accused will abscond (Zimbabwe)

An accused person who has decided not to stand trial may either flee the country (if he has the capacity to do so) or he may try to go to a place inside the country where he believes the authorities will be unable to find him. The problems of bringing X to justice are obviously greater if he has fled from the country than if he hides himself within Zimbabwe.

If there are good grounds for believing that X will take flight and become a fugitive from justice if he is granted bail, then bail will be refused. If, before or after his arrest, X escaped or tried to escape from custody, this would clearly show his predisposition to abscond and not to stand trial: Chiadzwa 1988 (2) ZLR 19 (S). In Jongwe S-62-02 it was held that when assessing the risk of an applicant for bail absconding before trial, the court will be guided by the character of the charges and the penalties which in all probability would be imposed if convicted; the strength of the State case; the accused's ability to flee to a foreign country and the absence of extradition facilities; the past response to being released on bail; and the assurance given that it is intended to stand trial. The most critical factors are the nature of the charges and the severity of the punishment likely to be imposed upon conviction and also the apparent strengths and weaknesses of the State case.

There is need for the court to assess the strength of State case. Where allegations in police papers raise a prima facie case, there is need for accused to rebut allegations and show that he should be granted bail. In Makamba S-30-04 the appellant was refused bail in the High Court on various charges under the exchange control legislation. Among other grounds of appeal, it was argued that the judge a quo should not have relied on the mere allegations made by the investigating officer. The strength of the State case had not been assessed by the judge a quo, though it should have been. However, the allegations made in the affidavit of the investigating officer were fairly detailed and raised at least a prima facie case against the appellant. In such circumstances an applicant would be expected, in attempting to discharge the onus upon him, either to deny the allegations; or to place before the court such information as would tend to establish his innocence; or to show that even if he were to be convicted the likely penalties were not such as to present a temptation for him to abscond; or to show that the interests of justice would not be prejudiced by his release on bail.. The appellant had done none of these things. There was nothing in the papers to persuade the judge a quo that the appellant had discharged the onus which is upon him to satisfy the court that he would stand his trial if released on bail.

In the absence of such concrete evidence of a predisposition to abscond, the courts take account of a number of factors which common experience have shown influence a person either to stand trial or to take flight.
 
These factors are the gravity of the charge and the likely sentence for that crime, the capacity and opportunities of X to flee and whether he has contacts abroad who will offer him sanctuary. Other factors which are relevant are the property holdings of X and his status in society. It may be in some cases that X would lose so much if he absconded that flight is unlikely. 

The case of Chiadzwa 1988 (2) ZLR 19 (S) examines the combination of factors which make international flight likely. Where a person is facing a serious charge which will lead to lengthy incarceration on conviction, the evidence against him is very strong and conviction probable, and where that person has the capacity to leave the country and has persons outside the country who will support him, there will be a substantial risk of external flight. In these circumstances the person may be quite prepared to abandon substantial assets in Zimbabwe to avoid the prospect of spending years in prison. With less serious charges, especially if the evidence for such charges is weak, it will be unlikely that a wealthy person will flee the county leaving behind substantial assets, particularly if that person has no external assets and few acquaintances outside the country who could assist him to re-establish himself. 

In considering whether flight is likely, the courts take into account whether a person has a fixed abode and whether he has a job. In these days of high unemployment, it can be strongly argued that employment, even in the informal sector, should weigh in favour of bail. Similarly, with the drastic shortages of accommodation in urban areas, the fact that a person does not have permanent accommodation should not necessarily be held against him. Attaching of regular reporting conditions will usually ensure that a person who only has temporary accommodation can be located when necessary.

In Mambo HH-47-92 X had originally been refused bail on the grounds that he was very likely to abscond. On appeal, the High Court held that bail should be granted as on the probabilities it was unlikely that X would abscond. He was aware for some time that he was under investigation for the alleged fraud in question and had not absconded; he had travelled to South Africa and when he was informed that the Zimbabwean police were looking for him, he had returned to the country and surrendered himself to the police. The fact that X was facing a very serious charge and that the sums involved in the alleged fraud were considerable was not a sufficient basis for refusing bail.

If the State opposes bail on the ground that X is of no fixed abode and will therefore probably not attend court when his case is tried, but X asserts that he lives at a particular address, then the State should indicate in specific terms the basis of its belief that X does not live at that place: Gwatiringa HH-128-88.

Often the attaching of conditions to the granting of bail, such as surrender of a passport and reporting to a designated police station at particular hours, may be enough to minimize the danger of the X absconding. A defence lawyer may argue that that the imposition of certain bail conditions will remove any danger of his client absconding. 

In the case of Biti HH-23-02 the court decided that where evidence is given that there is a strong case for the prosecution, that a heavy sentence is likely, increasing the risk of the accused absconding, and that other perpetrators of the crime are still at large, the onus then falls on the accused to show that the interests of justice will not be prejudiced, namely, that it is likely that he will stand his trial and not otherwise interfere with the administration of justice or commit an offence.

In Jongwe S-62-02 Chidyausiku CJ indicated that when assessing the risk of an applicant for bail absconding before trial, the court will be guided by 

* the character of the charges and the penalties which in all probability would be imposed if convicted; 
* the strength of the State case; 
* the accused's ability to flee to a foreign country and the absence of extradition facilities;
* the past response to being released on bail; and 
* the assurance given that it is intended to stand trial. 

He pointed out that the most critical factors are the nature of the charges and the severity of the punishment likely to be imposed upon conviction and also the apparent strengths and weaknesses of the State case.

In Ndhlovu 2001 (2) ZLR 261 (H) the court said that in deciding whether there is a risk of X absconding, the court should consider such factors as the seriousness of the offence, the likely sentence and the incentive to abscond, X's mobility and access to cross-border travel, and the strength of the prosecution case. It may be desirable for X to disclose his defence and not merely make a bald statement that he is not guilty of the offence. Such a defence is of great, and often of decisive, importance in the exercise of the court's discretion. X's personal circumstances, such as financial position and business interests, are of little value in assessing the risk of absconding. They may, in some cases, be used to facilitate abscondment. The fact that X surrendered to the police should normally be a factor in his favour, though if he surrendered under a false name with the intention of deceiving the police, it would not count in his favour.

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See [[Zimbabwe | Zimbabwe Criminal Defense Manual]]