TAGU J: This is an appeal against refusal of bail
pending appeal against conviction and sentence. The background of this matter
is that the appellant was charged with and convicted of assault after a
contested trial. He was jointly charged with one Simbarashe Tinoza. Both were
sentenced to 14 months imprisonment of which 6 months imprisonment were
suspended on the usual conditions of good behaviour. They noted their appeal
against both conviction and sentence. They applied for bail pending appeal
which was dismissed by the court a quo. They now appealed to this
Honourable Court against refusal of bail.
The appeal was not opposed in respect of Simbarashe Tinoza
but opposed in respect of this appellant Kenneth Mupamba. On 8 April 2014 bail
was therefore granted in respect of Simbarashe Tinoza and I reserved ruling in
respect of Kenneth Mupamba. This is now my ruling.
The appellant has argued that there are good and sufficient
reasons for his success on appeal against both conviction and sentence which he
advanced to the court.
Upon perusal of the record I entirely agreed with
concession made by Mr I. Muchini. It became clear and undisputed that
the evidence that was led in court against Simbarashe Tinoza was insufficient
to prove beyond reasonable doubt that he was present and committed the offence
of assault against the complainant. It seems apparent that he was arrested
because he owns a motor vehicle which is similar to the one used by the
perpetrators of the assault and that the registration numbers appeared almost
identical. The motor vehicle that was used by the people who committed the
assault had registration numbers ACF 1835 whilst Simbarashe Tinoza's vehicle
numbers were ACF 1838. Apart from the complainant none of the other witnesses
positively identified Simbarashe Tonoza as having been present. For these and
other apparent reasons there are prospects of success on appeal hence bail was
granted.
However, as regards Kenneth Mupamba his circumstances from
the evidence are quite different from those of Simbarashe Tinoza. I must
however, hasten to point out that the court appreciates the need to treat
alleged offenders the same way in situations where they are facing the same
charges. But sight should not be lost of the fact that each individual's
circumstances come under scrutiny when the court considers the right to
individual liberty on one hand and the administration of justice on the other
hand. Before I outline the circumstances of Kenneth Mupamba as revealed by the
evidence, let me briefly outline the law relating to applications of this nature.
The main factors that are taken into account in such
applications for bail pending appeal or refusal of bail pending appeal are:
(a) The
prospects of success on appeal, and
(b) The interests of
justice i.e. will the admission of applicants to bail not jeopardize the
interests of justice through abscondment –S vHudson 1999 (2)
SACR 431; S v Williams 1980 ZLR 466 (AD); S v Kilpin
1978 ZLR 282 (A) and S v Manyange 2003 (1) ZLR 21 (H).
In the Kilpin case
supra, the court pointed out that the principles governing the granting of bail
after conviction were different to those governing the granting of bail before
conviction. On the one hand, where the person has not yet been convicted he is
still presumed innocent and the courts will lean in favour of granting him/her
liberty before he/she is tried. On the other hand, where he/she has already
been convicted the presumption of innocence falls away.
In casu, the applicant was convicted of assault and therefore the
presumption of innocence no longer operates in his favour. In the Williams
case supra, it was held that even after conviction the court should lean in
favour of liberty if this would not endanger the interests of the
administration of justice. The prospects of success on appeal should be
balanced against the interests of the administration of justice. The less the
chance of success on appeal, the greater the chance there is of the convicted
person absconding. Even if the court finds that indeed there are prospects of
success on appeal against conviction, still that finding does not necessarily
entitle the applicant to bail. It was pointed out in the Williams
case, supra:
“But it was putting it too
highly to say that bail should only be granted where there was a reasonable
prospect of the appeal succeeding. On the one hand, in serious cases even where
there was a reasonable prospect of success on appeal bail should sometimes
be refused, notwithstanding that there is little danger of the convicted person
absconding”. (Emphasis added)
In this case the evidence shows
that Kenneth Mupamba was present at the scene of the offence. Not only that,
although he said he only shouted at the complainant all the witnesses said he
appeared drunk and he assaulted the complainant. Even defence witnesses
incriminated him. This was a factual issue proved beyond doubt. During the
trial it was found that this appellant participated in the assaults. Such a
factual finding cannot easily be overturned by the appeal court –Hughes v
Graniteside Holdings (Pvt) Ltd SC-13-84 and S v Isolano
1985 (1)ZLR 62 (SC) at 63C-G.
The applicant stand convicted of
a needless assault perpetrated by a group of assailants, thus endangering the
lives of passengers in the complainant's vehicle. The court a quo
properly discounted the imposition of community service. With an assault of
this nature there will be a pronounced risk that the convicted person will flee
from justice if released, especially if they have no reasonable prospects of
success on appeal.
I am of the considered view that
appellant's chances of success on appeal against both conviction and sentence
are indeed nil and as such he should be denied bail.
Accordingly, this application is
dismissed.
Gumbo and Associates,
Applicants' legal practitioners
Criminal
Division, Prosecutor- General's Office,
respondent's legal practitioners
