This is an application for bail pending appeal. The brief
facts are that the applicant was arraigned before the Magistrates Court on a
charge of assault as defined in section 89 of the Criminal Law (Codification
and Reform) Act Chapter 9:23]….,.
The applicant noted an appeal against conviction and
sentence. Pending the determination of the appeal, the applicant applied for
bail on the following grounds;
(1) That the applicant will not abscond if admitted to
bail;
(2) That the applicant has good prospects of success on
appeal in that;
(a) The presiding magistrate erred in convicting the
applicant on his own plea of guilt without explaining the essential elements of
the offence for which the applicant was charged;
(b) The presiding magistrate erred in convicting and
sentencing the applicant without proof of injuries sustained by the
complainant;
(c) The presiding magistrate erred in failing to consider
the applicant's personal circumstances which were highly mitigatory;
(d) The presiding magistrate erred in failing to grant
the applicant the opportunity to address the court in mitigation prior to
sentencing him; and
(e) The presiding magistrate erred in failing to take
into account the fact that the complainant had withdrawn charges against the
applicant.
In considering an application of this nature, the court,
amongst other factors, considers the possibility of the applicant absconding if
given bail and whether or not the applicant has good prospects of success on
the main appeal. See State v Mutasa 1988 (2) ZLR 4
(S). The principles governing the granting of bail after conviction are
somewhat different from those governing bail before conviction. Where a person
has already been convicted obviously the presumption of innocence is no longer
applicable. A person who has already been convicted and sentenced, and has
tasted incarceration, is more likely to abscond if he has no prospects of
success on appeal.
It is common cause that the applicant pleaded guilty to
assault. The applicant admitted to stabbing the complainant twice on the neck
with a screw driver. The applicant also admitted that he intended to injure the
complainant and that he foresaw that the complainant could be seriously
injured. From the evidence on the record the appeal court is not likely to
interfere with the conviction. The applicant's prospects of success with regard
to conviction are slim to non-existent.
As regards sentence, the applicant's counsel submitted
that an appeal court is likely to interfere with the penalty imposed. He argued
strongly that without a medical affidavit indicating the seriousness of the
injuries sustained by the complainant there was no evidence that the
complainant suffered permanent injuries. Whilst it is correct that the medical
affidavit was never tendered to show the extent of injuries suffered by the
complainant, it is not the sole determinant factor. A look at the weapon used,
and the area the attack was directed at, would leave one with a view that the
charge was understated. Taking all the factors into consideration, it would
have been appropriate to charge the applicant with attempted murder. An appeal
court is not likely to be persuaded with the mere fact that there was no
medical report in order to reduce the sentence….,.
I am satisfied that the applicant has no prospects of
success on appeal as the appeal court is not likely to interfere with the
penalty granted.
Accordingly, the application for bail pending
appeal fails and is dismissed.
