Kelvin Daudi V THE State

### Preamble
1
HH 465-12
CRB 894/10
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KELVIN DAUDI

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA J

HARARE, 29 March 2012

Bail Pending Appeal

Applicant in person

A. Masama, for the State

MWAYERA J: The applicant appeared before a Regional Magistrate at Masvingo facing one count of rape. He was legally represented and at the end of a contested trial was convicted and sentenced to 20 years imprisonment with 5 years being suspended on condition of good behaviour. Irked by the trial court’s decision he filed a notice of appeal to the High Court Registrar. He now appeared before me on application for bail pending appeal.

The grounds of appeal were not attached to the application however one could discern from the applicant’s documents filed of record that the applicant though a self-actor had applied his mind to the misgivings he had with the trial court decision. He sought to attack the trial magistrate’s decision on grounds that the conviction was based on circumstantial evidence. He further stated that the trial court erred in sensationalising on the fact that the applicant failed to give reasonable suggestion as to why the complainant’s mother might have concocted the rape allegations against him. The applicant also presented that the trial magistrate erred by convicting him when essential elements of the offence had not been proved beyond reasonable doubt. He stated that the complainant’s mother had not seen him penetrate the complainant and that when he tempered with the complainant’s nappy it was for purposes of changing the nappy for the baby had soiled itself.

The State in its response to bail pending appeal consented to admission of the applicant on bail pointing out that there are prospects of success on appeal as such the applicant would not likely abscond. The basis of the concession was that the respondent counsel held the view that the fact that no forensic evidence was gathered as regards the baby’s nappy and accused’s T-shirt which were taken by police as exhibit because they were wet and complainant’s mother attributed such soling to be semen. He further argued that the complainant’s other brother one Kelvin aged 9 should have been called to testify why he left the baby alone with the accused. He presented that from the evidence on record one could not conclusively say the accused had sexually molested the complainant hence there are no prospects of success on appeal. I must hasten to say the court did not hold the view that the concession by the state was proper. More so when one considers the totality of the evidence adduced before the trial court. The conviction was not based on the fact that the nappy and T-shirt were soiled with semen. The medical evidence confirmed private parts were  tempered with and the accused did not dispute removing the complainant’s nappy although he said it was to change the nappy for the child had soiled itself. The applicant was found in a bending position towards the complainant and the track bottom had been lowered. The unjustified critism of the trial court by the State remained unfounded. The suggested calling of the 9 year old Kelvin to explain why he left the baby would add no value at all to the State case and was not necessary. The children were playing and accused took the complainant a fact he does not dispute.

I must hasten to point out that the court is not bound by the applicant and the respondent’s concession in deciding whether or not the applicant is a suitable candidate for bail. The opinion of the applicant and accused is relevant as it guides the court but at the end of the day the admission of applicant to bail or non admission is in the discretion of the court. The cases S v Ndlovu 2001(1) ZLR 261 and Mahata v Chigumira NO 2004 (1) ZLR 88H are instructive

In applications for bail pending appeal the legal principle for consideration are fairly settle. The court has to consider:-

Whether there are prospects of success on appeal

The likelihood of abscondment

The right of an individual to liberty and

The potential length of delay before the appeal is heard.

The case of S v Dzawo 1988 (1) ZLR s 36 and S v Hudson 1990/11 SA

LR 431 one quite clear.

It is apparent from the record of proceedings that the accused was convicted after a contested trial. The complainant’s mother’s evidence was that after she had left the month old child playing with the other children in a room in which accused was she later came back and find out that the other children had moved to play in another room and that the accused had taken the baby into a spare bedroom were she caught him in a bending position with the child’s track bottom removed and safety pin no longer secured in the manner she left it. The accused’s explanation was that he wanted to change the baby’s nappy but he had no nappy for changing and had never been responsible to do so before. According to the witness the nappy and accused’s lower part of T-shirt were wet from some substance she concluded to be semen.

The evidence of a wet T-shirt and nappy was confirmed by the attending detail one Magadaline Kaseke a police officer.  She also like the complainant’s mother observed the complainant’s genitalia had been tempered with as evidenced by the redness showing it had been squeezed.

The doctor who examined complainant one Godfrey Zimbwa confirmed that the complainant’s genitalia had been tempered with since the labia minora, vestibule and entrance to the birth canal were bruised.  The doctor concluded that although the hymen was intact sexual abuse had occurred because of the nature of injuries he observed.

The accused’s evidence was that false allegations were labelled because the complainant’s mother was having rental problems with accused’s sister. He however, pointed out that he did not know the rental arrangement and he further pointed out that the allegations had been raised because he and complainant’s mother had a misunderstanding over television. The question that the court posed was if there was such a misunderstanding  why would the complainant’s mother leave the child with the accused.

It is apparent from the record of proceedings of the court a quo that the trial court properly assessed and analysed the evidence before it. The trial magistrate’s decision was not based solely on complainant’s mother’s evidence that complainant’s nappy and accused’s T-shirt were soiled with semen such that the fact that there is no forensic evidence to prove whether it was semen or not does not change the complexion of the State case such evidence would only have buttressed an otherwise clear case, of sexual molesting of the complainant by the accused. The accused was with the complainant in a spare bedroom when the mother arrived at the time he was trying to re-secure the napkin.  He could not have been trying to change the napkin when he did not have one for changing.  He had never changed the baby’s nappy before and the mother of the child was just outside but he did not call her.  The complainant’s genitalia had injuries observed by the mother, police and doctor.  Accused was the one with the child shortly before such observations. I find not faulty in the trial magistrate’s assessment of the cogency of the testimony before him. In other words the conviction was well founded on evidence adduced before the court to that end therefore there are no prospects of success on appeal against conviction. Having said there are no prospects of success on appeal viz conviction I now turn to sentence, for rape of an infant the likely sentence is imprisonment. There are no prospects of success on appeal against the sentence. He was sentenced 20 years imprisonment with 5 years suspended on condition of good behaviour the trial court properly exercised its sentencing discretion.  The fact that there are no prospects of success on appeal against both conviction and sentence can act as an inducement for absconding and hence the likelihood of abscondment. It is accepted appeals take long to be prosecuted. However given the conviction of rape and likely sentence of imprisonment and that there no prospects of success on appeal it is viewed that it is not in the interest of administration of justice that the applicant be admitted to bail, for he is unlikely to avail himself for the prosecution of the appeal. It is with this background in mind that the court does not share the view of the applicant and the respondent counsel that applicant be admitted to bail. The State counsel’s view is taken as not binding on the court.  It is my well considered view that upon considering the totality of the evidence adduced before the trial court and arguments advanced by the applicant and the respondent there are no prospect of success of appeal and there are no other positive grounds why the applicant should admitted to bail.

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

Attorney General’s Office, respondent’s legal practitioners