Harold Michael v The State

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HB 199/20
HCB 249/20
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HAROLD MICHAEL

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 4 & 24 SEPTEMBER 2020

Bail Pending Appeal

T. M. Nyathi for the applicant

B. Gundani, for the respondent

MAKONESE J:	This is an application for bail pending appeal.  On 15th July 2020 the applicant was convicted by the Regional Court sitting at Beitbridge on a charge of rape as defined in section 65 (1) of the Criminal Law Codification and Reform Act (Chapter 9:23).  The applicant was sentenced to 18 years imprisonment of which 3 years was suspended for 5 years on condition of future good behaviour.

Aggrieved by the conviction and sentence, the applicant noted an appeal against both conviction and sentence.  In this application for bail pending appeal the applicant contends that his appeal carries bright prospects of success.

The background to this matter is that the state in the court a quo alleged that on 21st February 2020 applicant proceeded to complainant’s residence in the dead of the night and unlawfully gained entry into her kitchen hut where he found her asleep and raped her once.  The complainant a 72 year old lady reported the rape to a neighbour one Proud Ncube, who found the applicant inside complainant’s kitchen.  Applicant had fallen asleep after raping the complainant.  The applicant was positively identified by Proud Ncube who knew the applicant prior to the day of the commission of the offence.

Applicant pleaded not guilty to the charge.  After a full trial applicant was convicted.  The court a quo was satisfied that there was sufficient evidence to prove the guilt of the applicant beyond reasonable doubt.

In his grounds of appeal, the applicant argues that the court a quo erred in convicting him when the state had failed to prove lack of consent on the part of the complainant.  Further, the applicant argued that the court a quo misdirected itself in law when it convicted the applicant after placing reliance on the identification by Proud Ncube.  The applicant contends that the evidence of Proud Ncube was not reliable in that he said he saw a person who looked like the applicant.  A proper and complete reading of the evidence indicates that the witness was properly identified by the witness through his prior knowledge of the applicant.  The rest of the grounds of appeal are superfluous as they relate to the evidence of applicant’s torch which was found at the scene of the crime.

In assessing the prospects of success the court takes into account the strength of the evidence led in their court a quo.  The applicant raised the issue of consent in his grounds of appeal.  It is not lost to the court that applicant’s main defence was that he was not at the complainant’s residence on the day in question.  In other words applicant’s main defence was that this was a case of mistaken identity.  Applicant did no proffer any reasonable explanation as to why the complainant and Proud Ncube would manufacture evidence against him.  Applicant`s defence was found to be false and was rejected by the court a quo.  In any event, the evidence of Proud Ncube indicates that applicant was the person who fled from the complainant’s kitchen hut.  He was wearing a white T-shirt.  This evidence was consistent with the narration by the complainant.

The Law on bail pending appeal

In terms of section 123 (1) (b) (ii) of the Criminal procedure and Evidence Act (Chapter 9:07), the court is empowered to admit a convicted person to bail pending the determination of his appeal.  The granting of bail pending appeal turns on these factors:

The prospects of success on appeal

The possibility of abscondment

Whether or not the granting of bail will jeopardize  the administration of justice

The law is fairly well settled in our jurisdiction.  The courts will lean in favour of the granting of bail where there are reasonable prospects of success on appeal.  The prospects of success should not be fanciful.  See;  State v Williams 1980 ZLR (A) and S v Woods SC-60-93.

I am satisfied that the appeal carries no prospects of success.  The evidence led against the applicant in the court a quo was overwhelming.  As regards sentence, the sentence imposed against the applicant is in range of sentence handed down for similar cases. There was no misdirection on the sentencing court.

In the result, and accordingly the application is hereby dismissed.

Masawi & Partners, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners