On 4 August 2021, after considering all documents filed of record and having been orally addressed by counsel, I issued an order admitting the applicant to bail, and indicated that I would avail written reasons for my disposition. The reasons are captioned herein.THE PARTIESThe applicant was convicted by the Regional ...
On 4 August 2021, after considering all documents filed of record and having been orally addressed by counsel, I issued an order admitting the applicant to bail, and indicated that I would avail written reasons for my disposition. The reasons are captioned herein.
THE PARTIES
The applicant was convicted by the Regional Magistrates for rape of an 11 year old complainant. He approached this Court, legally represented by counsel of record, seeking bail pending appeal.
The first respondent is the State represented by counsel of record.
The second respondent is the legal guardian of the complainant represented by counsel of record who instituted a private prosecution culminating in the conviction and sentence of the applicant.
Worth noting is the fact that counsel for the State submitted, on behalf of the State, that, the latter would be bound by the court's decision.
He initially sought to be excused but conceded that the State was properly cited as an interested party even though the matter arose from private prosecution.
The criminal matter squarely falls in the domain of the State for not only prosecution but enforcement and/or discharge of the order as occurred in this case.
It was submitted by counsel for the State, that, the State had no meaningful submissions to make for and against the application but that there was no prejudice in the citation of the State as a party to the proceedings.
FACTUAL BACKGROUND
The applicant was, at the instigation of a private prosecution, arraigned before the Regional Magistrates Court on one count of indecent assault and one count of rape. The applicant was acquitted of the indecent assault charge and convicted of rape. The applicant was duly sentenced to 14 years imprisonment of which 4 years imprisonment were suspended on the usual conditions of good behaviour.
Dissatisfied with the Regional Magistrate's decision, the applicant lodged an appeal against both sentence and conviction in the High Court.
The High Court upheld the Regional Magistrate's finding that the applicant raped the complainant. He armed with a pistol; used threats to sexually violate the 11-year old niece of his wife. The High Court, like the Regional Magistrate, held that the complainant and other State witnesses evidence, inclusive of the medical evidence, clearly proved that the applicant had raped the complainant in violation of section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].
In short, the High Court, in dismissing the applicant's appeal, found nothing amiss with the manner in which the trial court handled the matter.
It held that the conviction was anchored on the evidence adduced and the sentence imposed was in sync with sentences in cases of a similar nature.
The applicant was not deterred by the dismissal of his appeal. He applied for leave to appeal. The application was dismissed by the High Court on 10 December 2020. He, thereafter, approached this court with an application for leave to appeal which application was granted on 8 July 2021, culminating in the present application for bail pending appeal.
SUBMISSION BY PARTIES
The applicant's counsel submitted, that, the applicant is a family man with heavy responsibilities since he has more than one wife and twenty children. He submitted that this background, when viewed in conjunction with the fact, that, at the time of filing of the application, the applicant had served the larger part of the sentence and was only left with twenty months, minimises the temptation to abscond. It was further submitted, that, since the application was being made at the tail end of the sentence there is no inducement to abscond and that the interest of justice will not be prejudiced by granting the applicant the chance to prosecute his appeal while out of custody.
On the issue of prospects of success, it was submitted, on behalf of the applicant, that, he enjoyed reasonable prospects of success on appeal. The applicant's counsel submitted that the court a quo, in upholding the conviction of the applicant by the Magistrate Court, paid no attention to the totality of the circumstances and evidence.
Counsel for the applicant further drew attention of the court to the defence of alibi he raised before the trial court as not having been properly assessed.
He further raised concern in the inconsistencies in the complainant's evidence on how the sexual violation occurred.
The applicant also took issue with the finding of the trial court that defence witnesses had been coached because their statements were commissioned by the same lawyer. There was no evidence of how the witnesses were coached and whether the act of commissioning statements by the same lawyer conclusively meant witnesses were coached.
Counsel for the applicant submitted, that, the applicant was not at the alleged scene of crime at the relevant time and led evidence in support of his defence of alibi.
The defence witnesses were consistent that the applicant could not have committed the offence of rape since he was not at the scene of the crime.
He contended, that, considering the totality of the State and defence evidence, the applicant enjoyed reasonable prospects of success on appeal and thus the applicant ought to be admitted to bail.
It was further submitted, that, this Court, in granting the applicant leave to appeal in SC86-21, had traversed the question of whether or not there are prospects of success and concluded that the appeal has good prospects of success.
The respondent's counsel submitted, that, the application for bail pending appeal should be dismissed because the applicant did not meet the requirements.
He contended, that, the applicant, by virtue of having many wives and having given various addresses in the High Court bail applications, should be viewed as a person with no permanent residence. This factor would mean, that, if he is admitted to bail, chances of absconding are high.
Counsel for the respondent submitted, further, that, even without a passport, the applicant could take advantage of the porous nature of our borders and evade justice.
He submitted that the applicant, having experienced the rigours of prison, was likely to abscond.
The respondent argued that the 20 months left of his sentence is not a short time such that if the applicant is released on bail his chances of returning to prison voluntarily are remote.
Counsel for the respondent also raised concern that the applicant wields influence which would enable him to roam out freely without completing his prison term. He was said to have influence on the prison system as he had been allowed to personally interact with his family and had caused three senior prison officers to offend against the law. To buttress the alleged influence on the system, counsel for the respondent highlighted that it took a private prosecution for the applicant to be brought to book as he used his influence to manipulate the system and public officials, including the police, to frustrate the complainant's case.
Counsel for the respondent further submitted, that, although this Court, in SC86-21, in granting leave to appeal, considered prospects of success, there are outstanding factors which militate against admission of the applicant to bail pending appeal.
He stressed, that, there was no certainty as regards the applicant's residence and that there is no explanation of how the new property he offers as security came into existence.
He submitted that there were no prospects of success on appeal as the defence of alibi was rebutted and it was found that the witnesses were coached.
He however acknowledged the fact, that, prospects of success on appeal is a factor considered in granting leave to appeal and that the court, in granting leave to appeal, made a finding that the evidence of the witnesses who are alleged to have been coached has to be tested.
THE LAW
The factors that fall for consideration in an application of this nature are fairly settled and can be summarised as follows:
1. Prospects of success on appeal.
2. The likely delay in hearing the appeal.
3. The likelihood of abscondment.
4. The interest of administration of justice.
In an application of this nature, it is important to note that the bail is being sought after conviction. It is essentially different from an application for bail pending trial in which the presumption of innocence operates in favour of the applicant.
Bail in the latter scenario, is a matter of right and is only denied where there are compelling reasons warranting deprivation of liberty.
In bail pending appeal, the applicant is a convict, and, as such, has the onus to show positive grounds for his admission to bail. The position was ably stated by Patel J…, in S v Dzvairo 2006 (1) ZLR 45 H…,:
“Where bail after conviction is sought, the onus is on the applicant to show why justice requires that he should be granted bail. The proper approach is not that bail will be granted in the absence of positive grounds for refusal but that in the absence of positive grounds for granting bail, it will be refused. First and foremost, the applicant must show that there is a reasonable prospect of success on appeal.”
See also S v Tengende 1981 ZLR 445 (S)…,.
It is important to note, that, the burden of proof in bail pending appeal lies on the applicant who has to show that the interests of justice will not be frustrated by his admission to bail. Section 115(C)(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] is instructive on the issue of onus. It states, in subsection (2):
“Where an accused person who is in custody in respect of an offence applies to be admitted to bail…, (b) after he or she has been convicted of the offence, he or she shall bear the burden of showing, on a balance of probabilities, that it is in the interest of justice for him or her to be released on bail.”
It is apparent, that, in exercising its discretion whether or not to admit the applicant to bail pending appeal the court has to consider all the factors, cumulatively, in order to come up with a just decision.
The applicant has already been convicted. He must tip the scale in his favour by demonstrating that there are reasonable prospects of success on appeal and that his release on bail will not jeopardise the interest of the administration of justice.
The applicant has to demonstrate, that, in the event of him not prosecuting the appeal successfully he will not abscond but avail himself to fulfil the societal interest of having matters finalised to their logical conclusion.
APPLICATION OF THE LAW TO THE FACTS
In the present case, the applicant is seeking to be admitted to bail pending appeal on the basis that there are reasonable prospects of success on appeal. He contends that the test for reasonable prospects of success was ably and appropriately discussed and accepted by this court when leave to appeal was granted.
I do not propose to revisit the finding of this Court on the issue of reasonable prospects of success on appeal. Suffice to mention, that, the applicant ably demonstrated that there are realistic prospects and not remote prospects of success.
The unsatisfactory aspects of evidence in the record a quo, such as the unclear circumstances under which the offence was committed; inconsistencies in the complainant's description of how and where the rape occurred; the defence of alibi raised; and the dismissal of the defence witnesses version, without testing their veracity, on the basis that the statements were commissioned by the same Commissioner of Oaths, all point to an appeal with some substance.
It is my considered view, that, there are reasonable prospects of success on appeal in this case.
The reasonable prospects of success on appeal, when viewed in conjunction with the other factors which fall for consideration in applications of this nature, go a long way in showing that it is in the interests of justice that the applicant be considered for bail.
The applicant has served a considerably large period of the sentence pursuant to conviction and sentence. At the time of lodging the application, he can safely be said to be at the tail end of the sentence. Left with only 20 months of the sentence, the applicant, having been granted leave to appeal on the basis that the appeal is reasonably arguable with real and reasonable possibility of success on appeal, has little incentive to abscond.
I am alive to the fact that the applicant has tasted the rigours of prison and that he appreciates prison life, but, considering he is left with just some months of imprisonment, there is minimal inducement to abscond.
The applicant is a family man of fixed abode. That he has several properties and wives is not an indication that he is likely to abscond and evade justice. In fact, the circumstances of the matter are such that the applicant has more to lose by absconding.
The proposed bail consideration, and the sureties that have been offered, go a long way in allaying the fears of absconding, moreso considering that the applicant has reasonable prospects of success on appeal and that he has served more than 70 per cent of the sentence imposed.
It is common cause that there is considerably long delay in hearing of appeals.
A number of factors, including the current backlog escalated by the COVID 19 pandemic, contribute to the delay.
Considering the possible delay, in the event of the applicant prosecuting the appeal with success, if he is not admitted to bail, the appeal will be finalised after he would have completed serving his term of imprisonment. The appeal will purely be academic much to the detriment of the administration of justice.
