Likelihood that accused will commit further offenses (Zimbabwe)

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The courts are duty bound to protect the public against further criminal activities of a person pending trial. This is especially so in respect of dangerous criminals who may commit grave crimes whilst out on bail. However, the majority of persons facing trial are unlikely to commit further crimes if released prior to trial. The impending trial will usually act as a restraint against an accused as he will realise that any such misconduct before his trial may prejudice his impending case and that he will face serious penalties if he engages in further criminal conduct before his trial.

If the State maintains that further criminal conduct is likely, it must point to some facts that suggest that there is such a danger and that this danger cannot be averted by the imposition of stringent bail conditions. It is permissible for the State to produce a list of X's previous convictions: Fourie 1973 (1) SA 100 (D).

If he has a string of previous convictions, there is a substantial chance that he might commit further crimes whilst on bail. In the case of Attorney-General v Phiri 1987 (2) ZLR 33 (H) the evidence of the propensity to commit further crimes whilst at liberty was particularly strong. In addition to a bad criminal record, there was evidence that X had committed further similar crimes to the crimes for which he was yet to be tried. Such previous conduct whilst on bail showed a disregard for the law and a contempt for the administration of justice. Bail was understandably refused.

However, in the case of Demba HH-133-89 the High Court said that if after a person has been granted bail for one offence he is then suspected of having committed another similar crime some time before the current offence, this does not necessarily mean that he will be more likely to commit yet another offence whilst at liberty. See also Patel 1970 (3) SA 565 (W).

In Ndhlovu 2001 (2) ZLR 261 (H) the court stated that where X has given every indication that he is an incorrigible and unrepentant criminal, it would be irresponsible and mischievous for a judicial officer to grant bail. The court should remember, though, that this is a sort of preventive detention, and that the refusal of bail should not be used as a means of deterring the offender.


See Zimbabwe Criminal Defense Manual