Bail
Application
MOYO
J: The
appellant was convicted of the offence of rape and was sentenced to
15 years imprisonment by the Regional court sitting at Gweru. Three
years of the sentence was suspended on the usual conditions leaving
the appellant with 12 years effective.
The
appellant noted an appeal to this court upon dissatisfaction with
both conviction and sentence. He also applied for bail pending appeal
and the trial magistrate refused same.
The
argument advanced on behalf of the appellant is that he has
reasonable prospects of success on appeal and that the learned
magistrate misdirected himself when he found that there were none.
Looking
at the notice of appeal only two grounds are advanced ad
conviction
and they are:
(i)
firstly that: the learned magistrate erred in failing to consider
that the complainant may have been motivated to make a false report
of rape by her desire to hide the incestuous relationship.
How
the magistrate was supposed to arrive at this conclusion is not
shown. Unless if the magistrate was to speculate. There's no basis
for such a finding on the court record. For the reason that
complainant was related to the accused does not mean that then they
had consensual sexual intercourse.
(ii)
The second ground is that the learned magistrate erred in
disregarding the fact that the report of rape was instigated by the
complainant's mother when the complainant had infact intended to
withdraw the complaint of rape against the appellant but was induced
not to do so by the mother.
There
is nowhere in the record where, this contention is supported.
Firstly,
the complainant reported the rape to her aunt the following day, and
the mother who lives in the rural areas, and had no money for
transport, then came months later. The mother was advised of the
complaint by the aunt when she arrived from the rural areas. There
is nowhere in the court record where any “instigation”, by the
complainant's mother is shown. There is also nowhere in the
court record where the complainant's mother induced the complainant
not to withdraw charges.
Both
grounds of appeal and conviction are totally unfounded as they are
not based on the facts before the court.
It
is for this reason that this court finds that there are no reasonable
prospects of success on appeal against conviction in this matter as
clearly what is alleged on the notice of appeal is not supported by
the contents of the court record.
The
principles to be considered in such mattes have been amply dealt with
in the case of S
v S
Tengende and others
1981 ZLR 445.
As
for an effective sentence of 12 years for rape, its in line with
other decided cases so there aren't prospects of success against
sentence either.
The
interests of justice cannot be served by the release of the accused
on bail pending appeal as the risk of abscondment is very high in
such a case.
The
offence of rape is a serious offence and it attracts a lengthy prison
term as the one that accused was sentenced to. The court in such
cases must balance the interests of justice with the accused's
liberty. The accused has already been convicted and therefore the
presumption of innocence no longer applies in his favour. Neither
does the principle that courts should lean towards liberty except if
there are compelling reasons to decide otherwise.
Bail
pending appeal being a discretionary decision, I have not found any
basis upon which I should exercise my discretion in appellant's
favour.
In
my view the appellant has failed to show that the interests of
justice will not be endangered if he is allowed bail pending appeal.
The
appeal against the refusal of bail pending appeal by the trial
magistrate is accordingly dismissed.
Jumo,
Mashoko and Partners,
applicant's
legal practitioners
National
Prosecuting Authority,
respondent's legal practitioners
