Christopher Ben v The State

1
                                                                                               HH 61-17
                                                                                              B 1266/16

CHRISTOPHER BEN
versus
THE STATE


HIGH COURT OF ZIMBABWE
TSANGA J
HARARE, 20 & 31 January 2017


Bail pending Appeal


Applicant in person
E Makoto, for the State


           TSANGA J: This is an application for bail pending appeal in a rape case. Accused
was convicted and sentenced to 17 years of which 2 years were suspended for 5 years on the
usual conditions for rape of a minor child aged 7 years old. He has a pending appeal against
both conviction and sentence and seeks bail on the grounds that his matter stands high
prospects of success on the grounds that the state failed to prove its case.
      The basic principles on bail pending appeal emanate from the starting point that when
convicted and sentenced, the presumption of innocence no longer prevails. The onus now
falls on accused to show that he should be granted bail. The factors that are considered in
deciding whether or not such onus has been discharged include1:
      -    Likelihood of appellant absconding which will depend on the length of sentence
           passed.
      -    The prospects of success on appeal. The greater, the likelihood that he will abscond
           the greater must be the prospects of success before bail should be granted.
      -    The right to individual liberty.
      -    Likely delay before an appeal is heard.
      In the absence of positive grounds for granting bail, it is generally refused. See R v
Tengende & Ors 1981 ZLR 445 (S). The basis of applicant’s belief in the high prospects of
success in this case is that the magistrate erred in disregarding the evidence of one Nyasha
Mwanza who had been left in the custody of the child by her mother, when she had travelled

1
    See John Reid Rowland Criminal Procedure in Zimbabwe ( Harare: Legal Resources Foundation 1997)
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to Kariba. In particular, he zeroes in on the fact that the said Nyasha Mwanza disputed the
fact that the accused had sent her to the shops at the material time that the rape took place.
She had also disputed having a love relationship with the accused. He also argues that the
state case against him was weak because the police had not interviewed tenants at the house.
In addition, he points to the fact that the mother’s sister Constance whom the rape was
reported to, should have been called as a witness. Furthermore, he argues that there was no
analysis of his blood against the fluids found on the child. He also argues that there was no
proof that the penetration scars could have been caused by a penis. Moreover, he relies on the
fact that the complainant told the court that she did not experience any pain. He says he was
convicted on the basis of inconsistences in evidence and that the primary question to be
answered remained whether or not he was the perpetrator.
   The State, on the other hand, is opposed to the application and sees no prospects of
success on appeal on the basis that the credibility of the findings cannot be faulted. In
addition, the state also argues that the evidence that the rape occurred when Nyasha Mwanza
had been sent to the shops cannot be faulted. Penetration was confirmed at the hospital and
the medical report shows hymen tears. The court also argues that the fact that the
complainant, a 7 year old, could not remember minute details such as date and time does not
mean her evidence should be discredited. Moreover, the state points out that issues of
credibility of witnesses is hardly interfered with by an appeal court. (S v Soko 118/92 and S v
Mlambo 1994 (2) ZLR 410 (S). The state maintains that the appeal court is unlikely to
interfere with the court a quo’s findings. Moreover, the sentence is said not to induce a sense
of shock given the vast age difference between applicant and complainant and that the
applicant was in a position of trust vis a vis the complainant.
   Whilst a bail appeal goes to the heart of a person’s liberty, this has to be also weighed
against whether such liberty can be granted without endangering the administration of justice.
Applicant points to being of fixed abode and that there is no likelihood of him absconding.
The rape for which applicant was convicted, involved a seven year old who is not capable of
consenting. As stated, the presumption of innocence on his part no longer prevails.
   In an application for bail pending appeal, the function of the court is not to determine the
merits but to make an assessment of the likelihood of success on appeal. On that score, I see
no arguable or viable ground for appeal in this instance as the issues complained of were
amply dealt with by the magistrate in the reasons for judgement. The magistrate addressed
the issue of the perceived inconsistences in terms of dates and times and noted that coming
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from a 7 year old, these could not discredit the complainant. The magistrate did not find the
evidence to be consistent with fabrication or coaching. The magistrate also addressed fully
the reasons why the complaint was not made to the mother of the child and also stressed that
it was the mother’s observations of signs of sexual abuse after the child complained of itching
that had led her to take her to the doctor. A reading of the judgment also reveals that the
magistrate dealt exhaustively with the medical evidence, in particular the hymen tears and the
basis for concluding that penetration had occurred.
       The magistrate also considered in detail why nothing turned on the applicant’s
defence witnesses who included Nyasha Mwanza. The judgment is clear that the reasons for
rejecting Nyasha Mwanza’s testimony, who was the elder sister to the complainant, was
because she, Nyasha Mwanza, had a reason to lie since she was having an adulterous
relationship with the applicant. In sum, the magistrate appears to have considered fully the
totality of the evidence that led to the lower court being satisfied that the state had managed
to discharge the onus against the applicant and for reaching its conclusion that applicant was
guilty as charged.
       Delays in hearing of appeals are no longer inordinate. The applicant was sentenced to
an effective fifteen years imprisonment. Taking into account the observation that there
appears to be no arguable issue for appeal, this is not a case where sentence is likely to have
been served by the time the appeal is heard. The applicant should therefore prosecute his
appeal whilst serving his sentence.
       The application for bail pending appeal is accordingly dismissed.




National Prosecuting Authority, for the State