MAKONESE J: The applicant
appeared before a Regional Magistrate sitting at Bulawayo facing a
charge of rape. He pleaded not guilty but was nonetheless convicted
and sentenced to 17 years imprisonment of which 3 years was suspended
for five years on the usual conditions. The applicant has noted an
appeal against both conviction and sentence. He now seeks his release
from custody on bail pending appeal. The application is opposed.
Factual Background
The complainant's mother had
divorced the applicant at the time of the alleged offence. On a date
unknown to the prosecutor but during the year 2014 at around 1400
hours, the complainant was asleep in her bedroom alone. Her mother
was away in South Africa. Appellant is alleged to have entered
complainant's bedroom and found the complainant asleep. He closed
the door and proceeded to have sexual intercourse with the
complainant without her consent. After the offence the appellant gave
the complainant one dollar and told her not to reveal this incident
to anyone else. The matter only came to light when the complainant
and her mother had an argument over the complainant's poor results
at school. During the heated argument with her mother the complainant
had started crying and uttered the following words:
“You do not want to be mother
to me, you never want to listen to what I say because of that I could
not tell you that Manjoro raped me.”
From the evidence adduced before
the court a quo,
the complainant made these remarks because her mother had a tendency
of not listening to her. It seems that the remarks were made to
stress the point that the complainant's mother was not there for
the complainant. The remark triggered a report into the rape
allegations and the appellant was arrested. The court a
quo was thorough in
its analysis of the evidence presented before it. Its reasoning
cannot be faulted. In rejecting the accused's defence the trial
court had this to say:
“The
accused's defence was a bare denial. He had not committed the
offence. The extension of that defence was that he could not possibly
have been at home as he worked a 7am to 4:30 pm shift per day. The
State witnesses both said although his knock off time was 4:30pm
there were days he arrived home as early as 1pm. This is not
probable. Further, there are always days when employed persons are
off duty or leave.”
I entertain no doubt that the
appeal against conviction carries no prospects of success.
As regards sentence, the
appellant, who was HIV positive at the time of the commission of the
offence, was found guilty of a serious offence. There is no evidence
of misdirection by the court a
quo. It is trite law
that sentencing discretion is that of the court a
quo and the appellate
court is reluctant to interfere with that discretion in the absence
of a misdirection. See the case of S
v Nhumwa
SC-40-88.
In determining an application for
bail pending appeal the presumption of innocence no longer operates
in favour of the appellant. It is trite that amongst the factors
which the court has to take into account when considering whether to
admit an applicant to bail pending appeal are the following:
(i)
the prospects of success.
(ii) whether there is likelihood
that if admitted to bail the applicant will abscond thereby defeating
the course of justice.
The court will always endeavour
to balance the interests of the applicant and the interests of the
due administration of justice. See the case of State
v Benatar 1985
(2) ZLR 205.
It is my view that the applicant
who has been sentenced to a long term of imprisonment would be
tempted to abscond if granted bail pending appeal. If released on
bail pending appeal there is every likelihood that the applicant
would not await the outcome of his appeal regard being had to the
fact that applicant is aware that he has very little prospects of
success on appeal.
The onus is on the applicant to
show that should he be admitted to bail the interests of justice
would not be compromised.
I am satisfied that the applicant
has failed to discharge the onus to establish that he is a proper
candidate for bail.
In the result, the application
for bail pending appeal is hereby dismissed.
Lazarus & Sarif, applicant's legal practitioners
Prosecutor General's Office, respondent's legal
practitioners
