This
is an application for bail pending appeal.
The
appellant was charged and convicted of the offence of assault as defined in
section 89(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Dissatisfied
with the conviction and the sentence, the applicant then noted an appeal with
this court.
The
appeal is pending. He now applies for bail pending appeal.
In
such cases, the court has a discretion whether or not to grant the application
for bail pending appeal. In the exercise of this discretion, the court is
guided by the following principles:-
1)
The prospects of success on appeal.
2)
The likelihood of the accused absconding in view of the gravity of the offence
and the sentence imposed.
3)
The likely delay before the appeal can be heard.
Refer
to S
v Dzawo 1998 (1) ZLR 356.
Of
paramount importance is the principle of prospects of success on appeal.
In
this case, the applicant alleges that he acted in self defence when he
assaulted the complainant, the two had a dispute over a girlfriend. On the
day in question, the complainant approached the accused saying he wanted to
talk to him. The applicant walked away from the complainant and the
complainant followed him. At some point, where there were stones, the
applicant says he felt cornered by the complainant who had paced fast behind
him, overtook him and blocked his way. This then prompted him to stab the
complainant with a sharp stone three (3) times on the left side of the abdomen.
During
the argument of this matter, the applicant's counsel conceded that the
applicant exceeded the bounds of self-defence but submitted that, nonetheless,
the trial court should have considered community service since the accused was
a first offender.
I
fail to find any misdirection in this regard on the part of the trial
magistrate as the magistrate in his reasoning explained why, in his view, a
custodial sentence would be appropriate.
I
accordingly find that there are no prospects of success in this matter and the
application is dismissed.
