Bail
Pending Appeal and Bail Pending Condonation
CHITAPI
J:
I
would not have composed a written judgment but for the need to clear
the confusion within the applicant's misunderstanding of procedure
to assert his liberty rights.
The
background to the applications
B1725/20
and B892/20 is as follows.
The
applicant was convicted by the regional magistrate sitting at Harare
on 4 October, 2017 on four counts of rape. Consequent on the
conviction, the applicant was sentenced to fifty years imprisonment.
Ten years of that sentence was suspended for five years on conditions
of future good behavior. The effective sentence imposed was therefore
forty years imprisonment.
The
applicant noted an appeal against both conviction and sentence to
this court.
On
5 August, 2020, this court sitting on appeal dismissed the
applicant's appeal against conviction. As against sentence, the
appeal succeeded to the extend that the sentence imposed by the
regional magistrate was reduced to twenty five years imprisonment
with five years thereof suspended on condition of future good
behavior. The applicant was therefore to serve an effective sentence
of twenty years imprisonment.
The
appeal to this court was determined under case no. CA110/14.
The
applicant was not satisfied with the decision of this court on appeal
in case no. CA110/14. He however delayed in taking steps to further
appeal this court's decision to the Supreme Court.
On
7 September, 2020 the applicant filed under case no. CON 319/20, a
chamber application for condonation of late noting of an application
for leave to appeal to the Supreme Court.
The
application was placed before MUSHORE J, who on 23 October, 2020
granted the applicant leave to appeal against conviction only. In the
order made, MUSHORE J inter alia ordered in paragraph 2 as follows:
“2.
Applicant be and is hereby granted leave to file his notice and
grounds of appeal against conviction only through the Supreme Court
Registrar within 10 days from the date of this order.”
It
is of course a requirement in terms of section 44(4) that a person
convicted by an inferior court to the High Court and has appealed to
the High Court against conviction or sentence or both, and is
dissatisfied with the decision of the High Court, and wishes to
appeal further to the Supreme Court, should first obtain leave of a
judge to appeal if the appeal is based on a question of fact or mixed
fact and law.
If
the appeal is based on a question of law only, no prior leave to
appeal is required.
The
High Court Act does not provide for the granting of ancillary or
consequential orders upon the grant of leave to appeal to the Supreme
Court.
For
posterity, I need to make a passing comment in regard to the quoted
order of MUSHORE J aforesaid. It needs a non-prejudical correction to
it.
It
directs the applicant to note the appeal through the Registrar of the
Supreme Court.
In
terms of rule 18(3) of the Supreme Court Rules S1.137/18 a notice of
appeal to be filed consequent upon the grant of leave to appeal by
this court, is directed at and filed with the Registrar of the High
Court and copy thereof then filed with the Registrar of the Supreme
Court.
I
have indicated that there is no prejudice to anyone and the order of
MUSHORE J is corrected in paragraph 2 by the deletion of the word
“Supreme” and replacing it with the word “High”.
The
applicant prior to being granted leave to appeal out of time filed on
16 October, 2020 an application for bail pending the determination of
the leave to appeal application.
The
application was overtaken by events in that with condonation being
granted, there was no longer bail pending condonation to contend
with.
The
applicant only noted the appeal against conviction on 5 November,
2020 under case no. SC476/20. The appeal is currently pending
determination by the Supreme Court.
In
case no. B1892/20 the applicant applies for bail pending the
determination of that appeal. He filed the application on 6 November
2020 and headed it “bail pending appeal to the Supreme Court
against conviction only.”
The
application for bail pending appeal is anchored on the principal
consideration of whether or not the proposed appeal has prospects of
success.
It
would be illogical and not in the interests of justice to grant bail
pending an appeal which is predictably deemed to fail. It is on the
other hand logical and in the interests of justice to grant bail
pending appeal where the proposed appeal has merit and may likely
succeed provided however that there are no indications that the
applicant for bail pending appeal may abscond.
The
applicant averred that his appeal has prospects of success and relies
on eight grounds of appeal set out in the notice and grounds of
appeal.
The
State counsel opposed the application on two grounds.
(i)
Firstly counsel contended that the application for bail was
improperly before the court because the applicant did not seek leave
to appeal first.
Counsel
is mistaken because leave to appeal as has been noted was granted by
MUSHORE J. The appeal is in fact properly pending before the Supreme
Court.
(ii)
The other ground of objection is that there are no prospects of
success on appeal against conviction.
The
determination of whether there are prospects of success on appeal in
this matter presents jurisprudential challenges.
The
applicant's appeal against conviction was dismissed on appeal by
this court on the basis that it had no merit.
The
decision on appeal is binding upon a single judge.
It
would procedurally be improper in my view for the single judge to
have to review the appeal court's decision and make a pronouncement
on the correctness of the judgment given on appeal.
To
interrogate the jurisprudential or legal quagmire, it is noted that
section 44(4) of the High Court Act only grants a right of appeal to
the Supreme Court against the decision of the High Court on appeal
upon a decision of an inferior court. The right of appeal given is to
be exercised in the same manner as if the decision on appeal was a
decision of the High Court on trial before the High Court.
The
provisions of the law on the grant of leave to appeal have not taken
into account that leave to appeal would be in relation to an appeal
judgment wherein two or more judges sat.
Should
such leave not be sought from the two judges is a question that comes
to mind.
As
the law stands however section 44(4) implies that a single judge is
permitted to grant leave to appeal.
I
respectfully suggest that the law is revisited so that there is
clarity on procedure as it appears illogical that a single judge
reviews the appeal court decision and qualifies the judgment.
I
have however also considered the provisions of section 123(1)(a) of
the Criminal Procedure and Evidence Act. Which provides as follows:
“123
Power to admit to bail pending appeal or review
(1)
Subject to this section, a person may be admitted to bail or have his
conditions of bail altered –
(a)
In the case of a person who has been convicted and sentenced by the
High Court and who applies for bail –
(i)
Pending the determination by the Supreme Court of his appeal; or
(ii)
Pending the determination of an application for leave to appeal or
for an extension of time within which to apply for such leave; by a
judge of the Supreme Court or the High Court.”
In
my interpretation, the default position is that where the applicant
has noted an appeal to the Supreme Court against conviction and
sentence on trial by the High Court or has been sentenced by the High
Court, bail pending appeal should be made to a judge of the Supreme.
Although
the provision speaks to a judge of the Supreme Court or High Court,
the default position is that the Supreme Court judge is the first
point of call failing which a High Court judge may determine the
application.
Even
if I am wrong in my interpretation, a situation may arise as in the
instant case where I am asked to determine prospects of success on
appeal where the High Court on appeal exhausted its jurisdiction.
In
my respectful view, it is only jurisprudentially proper that a
Supreme Court judge should be the one to determine the bail pending
appeal where the appeal relates to a judgment of the High Court
granted on appeal.
I
must come to the conclusion that the interests of justice and
procedural and substantive fairness dictate that l defer to a judge
of the Supreme Court to hear the bail application in terms of section
123(1)(a)(i) of the Criminal Procedure and Evidence Act.
Consequently
the application for bail pending appeal is struck off the roll. The
applicant if advised may direct the application for determination by
a judge of the Supreme Court.
National
Prosecuting Authority, respondent's legal practitioners
