APPLICATION
FOR BAIL PENDING APPEAL
TAGU
J:
After
reading documents filed of record and hearing argument, I gave an
ex-tempore judgment and dismissed the application for bail pending
appeal. I have been asked for written reasons for that decision. The
applicants intend to appeal against my decision. These are the
reasons.
The
applicants were convicted after a fully contested trial of robbery as
defined in section 126 of the Criminal Law (Codification and Reform)
Act [Chapter
9:23].
They were each sentenced to 15 years imprisonment of which five years
imprisonment were suspended for five years on the usual condition of
future good conduct. They were to serve an effective 10 years.
The
facts were that on 24 August 2014 at about 2100hrs the complainant,
who was employed by the Ministry of Agriculture as a Goromonzi
District Head of Department for Irrigation, was riding his motor
cycle along Old Harare – Murewa road. He saw stones blocking the
road. He stopped his motor cycle and started to remove the stones
from the road. Whilst removing the stones, the two applicants emerged
from the right side of the road. They grabbed the complainant by the
neck and tripped him. They assaulted the complainant with open hands,
fists and booted feet several times all over the body. The second
applicant produced a knife from his pocket and threatened to stab the
complainant. Acting in common purpose they covered the complainant's
face with a sack and dragged him into an abandoned house near the
road where they further assaulted him and left him. Before leaving
him they stripped the complainant naked and stole his two cell
phones, a G-Tel A7041 and a ZTE Econet cell phone as well as cash
amounting to $50-00. Later the applicants returned and threw back the
G-Tel cell phone at the complainant. They went to the motor cycle
where the complainant overheard them arguing whether to deflate the
tyres or to take the motor cycle with them. Finally they decided to
leave it but returned to the complainant for unknown reason but
failed to locate him since the complainant had crawled out of the
house and hid at a nearby bush. They then went away.
The
complainant sustained three fractured ribs, abdominal and spleen
injuries and was treated in Harare. On 1 September 2014 the
complainant managed to make a report at Juru Police Station leading
to the arrest of the two applicants. Property valued at $65-00 was
stolen and nothing was recovered.
In
their notice of appeal the applicants attacked the decision of the
trial court on the basis that-
(1)
the applicants were not positively identified;
(2)
the report was made late after a week;
(3)
the court relied on the evidence of a single witness;
(4)
the court relied on the medical report which is not consistent with
someone who was stabbed; and
(5)
the sentence was too harsh so as to induce a sense of shock.
The
application for bail was opposed by the respondent.
Both
counsels were in agreement on the principles that govern applications
of this nature. The principles were clearly outlined in the case of S
v
S Dzawo
1998 (1) ZLR 536 (SC) as follows -
(a)
Whether there are prospects of success on appeal.
(b)
Likelihood of abscondment.
(c)
Rights of an individual to personal liberty.
(d)
Likely delay before the appeal is heard.
I
will deal with each of the principles.
The
applicants contented that their conviction was unsafe and that they
have bright prospects of success on appeal. The respondent on the
other hand submitted that save for denying identity, the
circumstances of the identification and the features of
identification were not disputed by the applicants. Hence there are
no prospects of success on appeal.
In
casu,
it is not in dispute that the applicants and the complainants knew
each other prior to the commission of the offence. It is trite that a
great degree of cautious approach is required where the evidence of
identification is dependent upon the testimony of a single witness.
This “precautious” approach is necessitated because the
identification of an accused person is a matter notoriously fraught
with error. It is an area wherein the potential for honesty mistake
looms large. This was observed by GUBBAY JA (as he then was) in S
v Ndlovu
&
Ors
1985 (2) ZLR 261 (S) at 262, S
v
Dhliwayo
& Anor
1985 (2) ZLR 101 (S).
In
the present case, as I stated above, it is not disputed that the
applicants and the complainant knew each other before. Their defence
is merely that they were not present at the scene of crime. Not only
did the parties know each other before, but they even talked to each
other at close range. The area was well lit by lights from the motor
cycle. One of the applicants even remarked “ aaah it's Gurumombe”
to the complainant. When they were arguing between themselves the
complainant was hearing their voices. This meant that the complainant
saw and recognised the applicants and the applicants also equally saw
and recognised the complainant. There was therefore no issue of
mistaken identity.
As
regards the issue of the court's reliance on the evidence of a
single witness, I found no fault with that since it is competent for
a court of law to convict on the evidence of a single credible
witness in terms of section 269 of the Criminal Procedure and
Evidence Act [Chapter
9.07].
On
the issue of the report having been made a week later there is
nothing untoward since the complainant had sustained serious injuries
and had to be hospitalised in Harare. The injuries were confirmed by
the medical report. The injuries were said to have been caused by a
blunt object. The court was not at fault at all to rely on it.
Coming
to the issue of the sentence, the sentence is within the range of
sentences imposed by this court in respect of offences of this
nature. It does not induce a sense of shock at all. See S
v
Ndlovu
HB 62/04. Even if the court is to interfere with the sentence, it
will be a slight reduction. The applicants cannot expect a
non-custodial sentence. See S
v
Chimone
HH 327/83.
Therefore,
there is a need for the applicants to prosecute their appeal while
serving. The mere fact that the sentence may be reduced is not a
basis for admitting the applicants to bail pending appeal. See S
v
Williams
1980 ZLR 466 (AD).
In
my view there are no prospects of success on appeal.
The
applicants were sentenced to an effective sentence of 10 years. The
offence itself was a serious offence which involved premeditation and
planning. By blocking the road the applicants intended to rob whoever
was to appear first at their trap. Now that they know their fate,
which is a long term of imprisonment, this may induce them to
abscond. There is therefore, a high risk of absconding if released on
bail.
As
to the right of an individual to liberty, the applicants have been
convicted. The presumption of innocence has fallen away. Their guilty
has been proved beyond a reasonable doubt. They are not entitled to
be released on bail as of right.
Lastly,
on the likely delay before the appeal is heard, this is no longer
applicable since appeals are now being expeditiously processed. They
have to prosecute their appeal while serving.
In
the result, the application for bail pending appeal is dismissed.
Pundu
& Company,
applicants' legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
