Knowledge Sibanda and Allen Mutero and Wellington Munhunepi v The State

### Preamble
1
HH 396-21
B 1366/21
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KNOWLEDGE SIBANDA

and

ALLEN MUTERO

and

WELLINGTON MUNHUNEPI

versus

THE STATE

HIGH COURT OF ZIMBABWE

CHAREWA

HARARE, 13 July & 2 August 2021

Bail Application

J Sikhala, for the applicant

Nyahunzvi, for the respondent

CHAREWA J: The applicants were convicted of one count of robbery as defined in s 126(1) of the Criminal Law (Codification and Reform) Act, [Chapter 9:23]. They were sentenced to an effective 43 months imprisonment on 14 June 2021. They noted an appeal against conviction and sentence on 21 June 2021. They now apply for bail pending appeal.

The law regarding bail pending appeal is trite. Applicants bear the burden of proof to show, on a balance of probabilities, that it is in the interests of justice that they should be released on bail. Further, the requirements for discharging this burden are that the applicants must show that they have prospects of success on appeal, they are not likely to abscond, there is likely going to be a delay before the appeal is heard, and they are therefore entitled to their liberty pending such appeal hearing.

Appellants submit that their appeal has prospects of success on the basis that the state did not discharge its onus to prove its case beyond a reasonable doubt as no evidence was led to disprove applicants’ defence of alibi. Further and in any event, the sole state witness’s testimony was not credible as it was inconsistent with the state outline. Besides, the essential elements of robbery with respect to third applicant were not proven.

For its part, the respondent contend that the defence of alibi could not stand in the face of the complainant’s positive placement of the applicants at the crime scene. In addition, the evidence of a sole witness is sufficient as long as the court is convinced beyond a reasonable doubt of its veracity.   And as for third applicant, the question that arises is what he was doing outside the complainant’s premises in the middle of the night and during a robbery in circumstances where he did not attempt to assist complainant.

I must agree with respondent. The complainant positively identified the applicants as they were her neighbours and known to her. As for third respondent, apart from being a neighbour, he had once been complainant’s student so she well knew him. No suggestion as to why she would falsely implicate the applicants has been made. The magistrate was therefore well minded to discount the defence of alibi without further ado as complainant was able to place the applicants at the scene of crime in circumstances where there was no bad blood to suggest false incrimination.

That the witness’s testimony differs from the state outline is hardly indication of lack of credibility of a witness. A state outline is not evidence in the same manner that witness’s testimony is, unless it has been entered into the record as such. It is merely a summary of what the state perceives to be its case. And where it differs from the testimony of eyewitnesses, then the evidence of such witnesses carries more weight.  Further the law permits conviction on the evidence of a single witness as long as the court is convinced beyond a reasonable doubt of such witness’s credibility. It is a matter of a common sense approach as there is no formula to determine when a conviction may be warranted on the testimony of a single witness.

The record does not reveal any obvious misdirection or error. The appellants were properly found to have robbed their neighbour who was able to identify them.

Finally, it seems to me that applicant’s counsel failed to appreciate that the witness’s testimony was sequential: that when applicants entered her house they came through the corridor outside her room where there was a light on and she was able to identify them with that light. But as they entered her bedroom the light was off so applicants used torchlight. And when they got close to her in her bedroom she was told to look down and was covered with a curtain so that she would not recognise them. The implication is that the applicants were not aware that the witness had already identified them from the corridor light.

In the circumstances, I cannot find that there are any prospects of success on appeal against conviction.

With regard to sentence, it seems to me that applicants received an eminently reasonable, if not lenient sentence in the circumstances such that there are little prospects for an appellate court to interfere with it. This is because sentences in matters of this nature generally range between four to five years.  An effective sentence of 43 months does not induce a sense of shock to warrant interference as it is well within the normal range.

Given that applicants have already been convicted, and no presumption of innocence operates, the likely confirmation of the conviction and sentence gives rise to a reasonable apprehension of abscondment. Clearly, where prospects of success on appeal are next to non-existent the risk of flight increases exponentially. Besides, in the absence of prospects of success on appeal, bail pending appeal serves no purpose and it is thus not in the interests of justice that applicants be released on bail. The court takes judicial notice that there is currently no backlog in the appeals division. The interests of justice are better served by the applicants expediting the prosecution of their appeal while in custody, particularly given the high rate of failure to prosecute appeals by persons on bail or abscondment at appeal hearings which is currently bedevilling the courts.

In the result, the application for bail pending appeal is dismissed.

Legal Aid Directorate, appellants’ legal practitioners

National Prosecuting Authority, respondent’s legal practitioners