Henessy Dube v The State

### Preamble
1
HB 155/21
HCB 247/21
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HENESSY DUBE

Versus

THE STATE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 17 AUGUST 2021 & 19 AUGUST 2021

Application for bail pending appeal

T. Runganga, for the applicant

T.M. Nyathi, for the respondent

DUBE-BANDA J: This is an application for bail pending appeal. The applicant was arraigned before the Regional Magistrate’s Court sitting in Bulawayo, on two counts of rape as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegations against him were briefly as follows: that on a date to the prosecutor unknown, but sometime during the month of April 2019, at number 28 Northway Burnside (house) Bulawayo he had sexual intercourse several times and on different occasions with the two complaints without their consent or realizing that there was a real risk or possibility that they had not consented to such acts of sexual intercourse.  Applicant pleaded not guilty to both counts. The second count was withdrawn after plea and no further reference shall be made to this count.  After a protracted trial he was convicted for the first count and sentenced to 15 years imprisonment of which 3 years were suspended for 5 years on the usual conditions.

Aggrieved by both conviction and sentence, applicant noted an appeal to this court and such appeal is still pending under cover of case number HCA 37/21. Applicant now seeks to be released on bail pending the finalization of the appeal. The conviction is attacked on six grounds and the sentence on two grounds which are all set-out in the notice of appeal. The grounds upon which applicant seeks to be released on bail pending appeal are set out in his statement in support of this application. In his written application, applicant contends that he has prospects of success on appeal because his guilt was not proved beyond a reasonable doubt as required by the law. In particular he contends that complainant was not a credible witness in that her evidence in court deviated from her police statement; and that she denied being involved in a love relationship with the applicant when there was evidence of such a relationship.

This application is not opposed. In its written submissions filed with this court, respondent submits that: there are prospects of success on appeal against conviction, and that there is no risk of abscondment. According to respondent the report in this matter appears to have been made when complainant realized that she had been infected with a sexual transmitted infection (STI) and also when she suspected that she was pregnant and applicant was unwilling to marry her.  Again that applicant was no longer interested in employing her and her friend. It is contended that the reading of the transcribed record of proceedings shows that complainant and applicant were in a love relationship.

The law and the facts

In terms of section 123(1) (b) (ii) of the Criminal Procedure and Evidence Act, [Chapter 9:07] (Act) this court has jurisdiction to hear a bail application pending appeal by a person who has been convicted and sentenced by a magistrates court.  Section 115 C of the Act provides that:-

(2) Where an accused person who is in custody in respect of an offence applies to be admitted to bail-

(a) ………………….

(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 interests of justice for him or her to be released on bail.

It will be noted that section 115 C (2) of the Act saddles a convict with the burden of showing on a balance of probabilities that it is in the interests of justice for him to be released on bail at this stage. It then follows that the bar for granting bail in a case where the applicant has been convicted and sentenced is lifted a bit higher by the legislature. In Muroyi v The State SC 111/20, the court said the purpose of the exercise of discretionary power vested in the court under section 123 of the Act is to secure the interest of the public in the administration of justice by ensuring that a person already convicted of a criminal offence will appear on the appointed day for the hearing of his/her appeal. It is for that reason that the Act provides that upon sufficient evidence being availed to justify a finding that a convicted person is likely not to appear for his/her appeal if released on bail is a relevant and sufficient ground for ordering his/her continued detention pending appeal. See: Madzokere & Others v The State SC 08/12.

The main factors to consider in an appeal against a refusal of bail brought by a person convicted of an offence are twofold. The first is the likelihood of the applicant’s absconding. The second is the applicant’s prospects of success on appeal in respect of both conviction and sentence. See S v Williams 1980 ZLR 466 (A) at 468 G-H; S v Mutasa 1988 (2) ZLR 4 (S) at 8D; S v Woods SC 60/93 at 3-4; S v McGowan 1995 (2) ZLR 81 (S) at 83 E-H and 85 C-E. Other factors to be taken into consideration are the right of the individual to liberty and the possibility of a lengthy delay before the appeal can be heard. See: Mungwira v S HH 216/10; Muroyi v The State (supra); Gomana v The State SC 166/20. Having said this, it should be mentioned that in evaluating the prospects of success, it is not a function of this court to analyse the findings of the trial court in great detail. As was found in S v Viljoen 2002 (2) SACR 550 (SCA) at 561 G-I if this is done, it would become a dress rehearsal for the appeal to follow. The consideration whether bail should be granted or not should be confined to reasonable boundaries, subject to the applicable legislation and principles of law and the rights of the applicant.

It is common cause that applicant and complainant had sexual intercourse at the Burnside house.  The issue before the trial court was whether such acts of sexual intercourse qualified as the crime of rape as defined in section 65 of the of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Applicant’s defense to the allegations was that he had consensual sexual intercourse with the complainant. Complainant testified that she was employed by applicant as a nurse aid. Applicant had a heart problem and required the services of a nurse aid. The two slept on one bed. She testified that the first incident of rape was on the first day he got to applicant’s house.  Complainant stayed for approximately two weeks at applicant house before he returned her to her home in Magwegwe, Bulawayo. She testified that she was returned to her home on the pretext that applicant was going to Harare for a meeting. He said he could not leave her at his Burnside house as his divorced wife was coming to collect her property. Complainant testified that the following morning she tried to call applicant on his mobile number without success. His mobile number was not reachable. Complainant then discovered that applicant had blocked her number. Complainant in the company of another person proceeded to Burnside and found applicant who then said he was no longer sick, his heart problem has healed and he no longer required the services of a nurse aid. He asked complainant to leave his house. Subsequent to her leaving applicant’s house, complainant realized that she had been infected with an STI. The infection was very serious. She then reported to her mother what had happened at Burnside.

It is in cross examination by defense counsel that complainant revealed the close relationship between her and the applicant. She testified that while still staying with the applicant she once sent him a text message to buy and bring med lemon, vaginal jelly and pain killers. Defense counsel produced three photographs, and asked complainant to identify the persons depicted in the photographs. Complainant testified that the photographs which were received by the trial court as exhibits, are the true likeliness of applicant and herself. She said the photographs were taken during a visit to a place called Ncema at Egigodini. Asked to tell the court the scene depicted in each photograph, in respect of photo 1, she said “he was hugging me,” in respect of photo 2 she said ‘he was kissing me on the cheek,” in relation to photo 3 she said “he was kissing me.” She was asked whether she was being forced, her answer was “no, he asked me if we could shoot some photos at Ncema.” As to the reason she was smiling when being kissed, her answer was “yes for the photo.”

Complaint further testified that she told applicant that she was pregnant and he wanted him to support her. It turned out that she was mistaken about the pregnancy, she was not pregnant.  She told the court that the reason she made a report was because she was now ill. Applicant had infected her with an STI and she had to report to her mother. Further she testified that after “raping me he said there was no job. I was then helpless not knowing what to do. I could not just leave like that.” Again in cross examination complainant was confronted with phone text messages exchanged between her and the applicant of a very suggestive description, e.g. “hie babie,” “missing you already” and “me too.”

The conviction of the applicant was premised on limited evidence. Complainant was a single witness. Complainant denied that she had consensual sexual intercourse with the applicant. Applicant contended that the acts of sexual intercourse were consensual. It is common cause that complainant was employed by the applicant as a nurse aid. The record suggests that the employer-employee relationship between the complainant and applicant might have escalated to a love relationship. This fact standing alone does not translate to prospects of success on appeal.  In our law even a spouse may be guilty of the crime of rape. It all depends on the merits of the case.

Applicant criticizes the trial court for not factoring into the equation exculpatory evidence. I take the view that the trial court did apply its mind to the totality of the evidence before it.  It did not comment on the text messages, photos, and the kissings, the reason for the complainant reporting to her mother and the police, etc. The appeal court might well find such to be misdirection, because in our law whatever conclusion is reached (whether it be to convict or to acquit) must account for all the evidence. Some of the evidence might be found to be false; some of it might be found to be only possibly false or unreliable; but none of it may simply be ignored.  It appears from the record of proceedings that the trial court ignored the evidence that had a tendency to exonerate applicant from the crime.

The evidence shows that applicant has prospects of success on appeal. I say so because the reason for complainant to report the case to her mother and to the police; the fear that she might have been pregnant; the fact that she was infected with an SIT; the fact that applicant was no longer co-operating with her, not willing to assist her; telling her that she no longer required her nurse aid services; the very suggestive text messages exchanged between the two; the photographs taken by the two, the kissings, all give credence to applicant’s version. On such evidence the appeal court might find that there is simply not enough evidence to prove the applicant’s guilt beyond a reasonable doubt. It is for these reasons that I take the view that applicant has prospects of success on appeal against conviction. I am of the view that there is a likelihood that a court of appeal may set aside the conviction of the applicant. In my view, the applicant has a strong case on appeal which would mean that, in my view, the conviction is demonstrably suspect. This factor, in my mind, is the one outstanding feature why this court must consider the granting of bail.

However this finding (that they are prospects of success on appeal) does not mean that applicant should be released on bail. This court must still consider whether he is a flight risk or not. Applicant in his bail statement contends that he is not a flight right. The State contends that applicant is not a flight risk. It has been said that the prospect of a lengthy custodial term may induce a bail applicant to abscond if released on bail. In this case there is no midway as far as the case of the applicant is concerned. Either he is going to be acquitted and his sentence set aside or his appeal is going to fail and the term of imprisonment will remain long term. I am of the view that the former is the more likely scenario, though this really remains an issue for decision by the court of appeal. On the facts of this case, I take the view that applicant is unlikely to abscond.

If the applicant is not granted bail he will remain in custody and he will continue to serve his sentence until the appeal is finalised. In my view the delay in finalising the appeal is a factor which this court should consider when deciding whether the applicant should be released on bail. See: Mungwira v S HH 216/10. Considering this factor, together with the more than reasonable prospect of success on appeal this court finds that the applicant, on a balance of probabilities, established that it is in the interests of justice that he be released on bail pending appeal.

Respondent made a concession both in the written submissions and in oral argument that applicant is a good candidate for admission to bail pending appeal. I agree. The concession was properly taken.

Disposition

In the result, I grant the following order:

1. The applicant is released on bail on the following conditions:

That he deposits an amount of RTGS $20 000.00 (twenty thousand dollars) to the Registrar of the High Court, Bulawayo.

That he resides at Number 28 Northway Burnside, Bulawayo until the finalisation of the appeal pending under case No. HCA 31/21.

That he reports at Hillside Police Station every Friday between 6 am and 6 pm.

It is so ordered.

Tanaka Law Chambers, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners