CHIWESHE
JP: The applicant was arraigned before
the senior regional magistrate, Eastern Division, charged with contravening s
66 (1) (b) (i) of the Criminal Law (Codification and Reform) Act [Cap 9:23], that is sodomy. The allegations were that on 6 January 2009
and at number 6334, Unit J, Seke, Chitungwiza, he unlawfully and intentionally
inserted his erect penis into Nongerai Zinhuka's anus without his consent. He was convicted despite his plea of not
guilty and sentenced to ten years imprisonment of which four years imprisonment
was suspended for five years on the usual conditions of good behaviour.
He has appealed against both
conviction and sentence. The appeal is
pending. He now applies for bail pending
the disposal of that appeal. As in all
applications of this nature the court has the discretion to grant or decline
the relief sought. In exercising that
discretion in a case where the application relates to bail pending appeal, the
court will be guided by the following principles:
(i)
the prospects of success of the appeal,
(ii)
the likelihood
of the accused absconding in light of the gravity of the offence and the
sentence imposed,
(iii)
the likely delay before the appeal can be heard and
(iv)
the right of the individual to liberty.
These principles
have been enunciated in a number of cases, such as State vs Dzawo 1998 (I) ZLR 356 and State vs Bennett 1985 (2) 205.
Of the above principles, the most
cardinal in an application of this nature is whether the appeal has prospects
of success. In this regard the applicant
need not show that the appeal will certainly succeed. Rather, all he needs to show is that the
appeal is reasonably arguable and that it is not manifestly doomed to
fail. See State vs Kilpin 1978 RLR 282.
This appeal is arguable in the
following respects:
The complainant
alleges that he was sodomised by the applicant, a friend of his brother, whilst
sharing the same bed but in different blankets in a bedroom at the house he and
his elder brother shared. He had on
several occasions within a period of less than an hour after they retired to
bed been disturbed by the applicant's groping hand. He did not feel the applicant penetrating his
anus. He was awakened only after the applicant
had already penetrated and discharged semen.
His reaction was to get up and report to his brother who was in another
room. Thereafter they both left for the
police station to make a report. Neither
the complainant at the time of the commission of the offence, nor his brother
thereafter, confronted the applicant accusing him of this act. Is this the normal reaction of persons
confronted with this sort of occurrence?
The complainant says he was putting
on a boxer short and inside it an underwear.
Firstly, how did the applicant open up the complainant's separate
blankets, work around the boxer short and then the underwear without disturbing
the complainant's sleep? The complainant
says the boxer short was soiled with semen.
What about his underwear? He says
he showed the soiled boxer short to his brother and the police, both of whom
confirm seeing the semen on it. This boxer
short was not produced in court. Instead
the complainant subsequently washed it, thereby depriving the state of an
important exhibit.
The complainant was medically examined
four days (or is it two days?) after the event.
The medical examination did not reveal any signs of forced entry such as
bruises and larcerations.
Finally, the applicant hinted that
the complainant and his brother might have had political motives to falsely
implicate him. The trial magistrate did
very little to explore this line of defence.
He should have in view of the fact that he was dealing with an
unrepresented accused person.
Clearly from the above cursory
observations, it cannot be said that the appeal is not reasonably arguable or that it is manifestly doomed
to fail.
For these reasons I admitted the applicant
to bail pending appeal on appropriate conditions.
C. Mutsahuni, Chikore & Partners, the applicant's legal
practitioners
Attorney General's
office, legal practitioners for the state
