The State v Christopher Ndiripo

### Preamble
1
HH 108-22
HC 2446/21
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THE STATE

versus

CHRISTOPHER NDIRIPO

HIGH COURT OF ZIMBABWE

MUNGWARI J

HARARE, 20 December 2021 & 14 February, 2022

Bail Pending Appeal

A Masango, for the applicant

A Muziwi, for the state

MUNGWARI J: The applicant, a 32 year-old male inmate lodged at Bindura Prison was charged with the offence of escaping from lawful custody in contravention of section 185 (1) (b) of The Criminal Law (Codification & Reform) Act [Chapter 9.23].

The summarised facts of the matter as outlined in the prosecution’s papers were that on 16 September 2021, around 11p.m at Bindura Prison, the applicant who was in self isolation after testing positive for the infamous COVID-19 virus, set in motion a plan to escape from prison. He compressed the iron sheets used to construct the cell he was housed in, in a bid to create an opening for his escape. Unfortunately for the applicant, the prison officer on duty one Evans Matafari was alerted by the sound of a banging noise from the cell where applicant was. He went to investigate and discovered that the applicant’s head and upper part of the body was already outside the cell through the opening that he had created. When applicant realised that his escape bid had been discovered he quickly retreated back into the cell. He was arrested and subsequently arraigned before the Magistrates’ Court on this charge. He was convicted after a full trial and sentenced to an effective two years’ imprisonment.

At his trial where he was an unrepresented accused, he gave the following as his defence outline.

“ I fell ill whilst in prison. I tested Covid 19 positive. I was

then put in an isolated cell. I slept in there due to illness

therefore I do not know what I did till after two days

I was surprised to find myself in handcuffs. I didn’t know

what I was doing.”

On one hand two witnesses, both prison officers, were subpoenaed to testify for the state. A picture of the exit point created by the applicant was tendered as Exhibit 1. On the other hand, the applicant was the sole witness in his defence. As can be noted from his brief defence outline above, the applicant did not allege that because of the Covid 19 which had afflicted him, he had lost his mind. He also did not mention that in his testimony. He simply said that he did not know what he did until after two days, when he was surprised to find himself in handcuffs.

The simple issue before the trial court was whether the applicant, by creating an opening out of the cell and putting the upper part of his body out of the cell consciously escaped from lawful custody. The trial magistrate answered the question in the affirmative and found the applicant guilty.

Aggrieved by both his conviction and the sentence imposed on him the applicant engaged a legal practitioner to note an appeal to the High Court. He subsequently lodged an application for bail pending the determination of that appeal.  In a written response the State opposed the application on the basis that there were no prospects of success on appeal for accused, against both conviction and sentence.

On 20 December 2021 I heard and dismissed the applicant’s application. In my ex tempore reasons for that decision, I indicated that I had found the court aquo’s assessment of evidence leading to the conviction of the applicant unassailable.  I also indicated that in fact the applicant’s grounds of appeal sought to introduce new evidence which had not been placed before the court a quo during trial. I further indicated that in relation to the sentence, the principle is that sentencing is a largely discretionary process which is usually left to the province and discretion of the trial court unless it is shown that the sentence is so outrageous that it induces a sense of shock. The cases of S v Mundowa 1998 (2) ZLR 395 and Pfungwa Mamvura v The State SC 22/05 are cases in point.  I also indicated that the fact that the applicant had been convicted of escaping from lawful custody was in itself an indication that even if he had satisfied the first requirement (which he did not) the court was still not persuaded that he had discharged the onus on him to show that it was in the interests of justice for the court to release him on bail.  Because of all this I concluded that there were no reasonable prospects of success on appeal and that the applicant was a flight risk if admitted to bail.

By a letter dated 23 December 2021 the applicant’s legal practitioners requested me to provide the detailed reasons for that decision. Below I provide the reasons as requested.

The High Court’s power to admit persons to bail pending appeal is undoubted. It is prescribed by the Criminal Procedure & Evidence Act [Chapter 7:09]. The relevant section is s123 which reads:

“123 Power to admit to bail pending appeal or review

(1) Subject to this section, a person may be admitted to bail or have his conditions of bail

altered–

(a) …………………………………………...

(i) …………………………………..

(ii) …………………………………..

(b) in the case of a person who has been convicted and sentenced by a magistrate’s court

and who applies for bail-

(i) ………………………………….

(ii) pending the determination by the High Court of his appeal; or

(iii) ………………………………….

(The underlining is mine and is for emphasis)

Given that provision, the courts have in a long line of cases which includes S v Tengende and Others 1981 ZLR 445 (SC), S v Hudson 1996 SACR 431, Chivhango vs The State SC 94/05 and in more recent times S v Chikumba 2015(2) ZLR 382 (H) sought to explain the principles which regulate applications for bail pending appeal.

What is clear from those authorities is that a court hearing an application for bail pending appeal determines the case using principles that are markedly different from those which a court faced with an application for bail pending trial may have resort to. This departure is premised on the fact that an application for bail pending appeal relates to an applicant who no longer enjoys the presumption of innocence accorded to him by s 70 of the Constitution of Zimbabwe,2013 (The Constitution) but one who stands lawfully convicted. In addition, the right to bail provided under s 50 of The Constitution is no longer there. The court therefore exercises a discretion on whether to grant bail to the applicant. In exercising that discretion, the court must be influenced heavily by:

the prospects of success on appeal and

whether there is a risk that if admitted to bail, the applicant would abscond

I therefore turn to deal with each of these requirements.

The applicant’s prospects of success on appeal

In determining this aspect, I remain alive to the dicta by Mafusire J in S v Chikumba (supra) that “in an application for bail pending appeal, it is not the function of the judicial officer to satisfy himself/herself beyond any measure of doubt whether the grounds of appeal are doomed to fail. If the applicant has some fighting chance on appeal, then all the other relevant factors being neutral, the applicant must be entitled to relief.”

I agree therefore that the hurdle which the applicant is required to jump is relatively lower. He should simply illustrate that his appeal is not afflicted with predictable failure.  If he succeeds in doing so, and shows that he is not a flight risk, the court must exercise its discretion in favour of granting the relief which the applicant seeks. In casu it becomes necessary for the court to set out the applicant’s grounds of appeal and thereafter to interrogate them in light of the evidence led before the trial court in order to assess the applicant’s prospects of success on appeal.  The applicant set out four grounds against his conviction and another two against the sentence imposed. They are set out in the notice of appeal as:

A. AD CONVICTION

“The court a quo grossly erred at law in making a finding of fact which is so outrageous that Appellant had attempted to escape yet there was nowhere in the proceedings when the mental intention of the Appellant to escape was canvassed or proved.

The court a quo erred at law in making a finding of fact which is clearly wrong that appellant was not seriously ill yet the key state witness had confirmed that he was very ill and no medical evidence was led to prove the court aquo assertion thereby putting in serious doubt appellants capacity to escape from lawful custody

The court a quo erred at law in adopting boxing match approach by not exercising caution when dealing with evidence of the single state witness which was not corroborated.

The court a quo erred at law in not assisting the appellant who was an unrepresented accused by not advising him the purpose of cross examination and the complexity of the matter thereby violating the appellant’s right to a fair trial.

B. AD SENTENCE

The court a quo erred in passing a sentence which is unduly harsh and excessive to induce a sense of shock in that the court misdirected itself in not considering the imposition of community service as an alternative to a custodial sentence, yet it had settled for two years imprisonment.

The court a quo grossly erred and failed to exercise its discretion judicially by failing to consider or to give reasons for not suspending portions of the sentence when the sentence was short.” (sic)

To begin with the applicants’ grounds of appeal against conviction appear non-compliant with Rule 100 (2) of the High Court Rules, 2021. The rule provides as follows:

100 Appeal against conviction and sentence by convicted person who is legally represented

(1) The provisions of this rule shall apply in respect of an appeal by a person convicted by a court who is or intends to be legally represented at the hearing of the appeal and who appeals against conviction or both conviction and sentence (hereinafter in this rule called “the appellant”).

(2) The appellant shall, within ten days of the passing of sentence, or, where a request has been made in terms of the Magistrates Court (Criminal) Rules, within five days of the receipt of the judgment or statement referred to in that rule, whichever is the later, note his or her appeal by lodging with the clerk of the court a notice in septuplicate setting out clearly and specifically the grounds of the appeal and giving for the purpose of service the address of his or her legal representative or, if a legal representative has yet to be appointed, the address of the appellant:

Provided …

(The emphasis is mine)

The applicant’s first and second grounds of appeal attack the trial court’s findings of fact that the applicant was apprehended in the process of escaping and that he was not seriously ill. The principle of law enunciated in the case of Barros and Anor v Chimphonda 1999 (1) ZLR58 S 7 is apposite. That rule of law entails that an appellate court must never consider it adequate that had it been in the position of the primary court it would have taken a different course.  Rather it must appear that the primary court made some error in exercising its discretion.  That error is illustrated where for instance the primary court would have acted upon a wrong principle, or where it allowed extraneous or irrelevant matters to guide or affect its decision, or where it mistook the facts, or did not factor in some relevant consideration. If that happened, then the court aquo’s determination may be vacated.

In the instant case, and as was explained in the case of Reserve Bank of Zimbabwe v Mfudzi & 3 Ors SC 29/18  in relation to the first and second  grounds of appeal, to simply parrot the words ‘erred at law’ does not create a point of law. It must clearly appear from the ground of appeal what point of law is sought to be determined. In that connection it has been held that a serious misdirection on the facts would amount to a question of law.

An attack on the court aquo’s finding that the applicant was apprehended in the process of escaping from custody without more remains an attack on the court’s finding of fact. Once that happens the applicant would be required on appeal, to satisfy the appeal court that the requirement that the finding is so grossly unreasonable that no reasonable court faced with the same facts would have made it has been met. In applicant’s grounds of appeal here, no allegation of gross unreasonableness is made nor is any apparent on the record. The ground is no different from a meaningless ground like “the court convicted when it should not have convicted.” The grounds ought to have stated with precision what it is which is alleged to have been wrong with the lower court’s findings of fact.

Here, an analysis of the conviction considering the evidence contained in the record of proceedings shows that the court’s conclusion cannot be faulted. If anything, exhibit number 1 which is the picture depicting the damage to the cell caused by the applicant indicates the work of a man who was conscious and clearly intent to carefully and surreptitiously escape from the makeshift cell. The damage is not consistent with what can be expected from a person whose mind is not fully functional and is physically drained and has been ravaged by Covid 19. Instead, it shows strength of both the mind and the body. The trial court adequately captured that in its reasons for judgement.

Additionally, a perusal of the record of proceedings reveals that the trial court was impressed by the evidence of the two state witnesses who are both prison guards. One Tafara Mandishona a prison guard from the security department confirmed having witnessed the opening on the wall that was created by the applicant when he compressed the iron sheets. He confirmed having taken the picture which now forms part of the record as exhibit 1.

The second witness Evans Matafari also a prison guard, is the one who heard the noise of iron sheets that was caused by applicant in the dead of the night. When he went to observe he saw applicant’s upper part of the body already out of the opening. When applicant realized that he had been observed he promptly pulled back inside. When the witness spoke to him, and inquired from him why he did so, he answered and said that he wasn’t well. However, when he answered him, the witness observed that the applicant spoke well. Tafara Mandishona refuted applicant’s assertions that he was unconscious because he had conversed with him and when they exchanged words the applicant spoke well. The trial court therefore determined the applicant’s state of mind. It cannot be faulted in light of the applicant’s actions before and after he had been apprehended.

From the bar Mr Masango, counsel for the applicant devoted most of his time to attempting to school the court on the effects of Covid 19 on the mind of the applicant. Unfortunately, besides that being inadmissible on the basis that such evidence is not part of the record of proceedings, the legal practitioner is not qualified to make such submissions.  The court did not hear him to say he possessed any medical qualifications. He only sought to introduce this at the appeal stage.

In the circumstances, it is very difficult if not impossible for the applicant to succeed with such grounds of appeal. It is the court’s considered view that there are no prospects of success with these two grounds of appeal.

Ground of appeal number 3 is equally unhelpful. To allege that the court a quo erred at law in adopting a boxing match approach by not exercising caution when dealing with evidence of a single state witness which was not corroborated hardly means anything. That assertion clearly betrays that counsel for the applicant may not have read the record of proceedings carefully. There were two and not one state witness who testified.  What probative value was placed on each witness’s testimony for applicant to conclude that this was a single witness matter? What findings of fact were made by the court a quo in this regard and which findings ought to then have been attacked is not indicated. There is no indication as to where the trial court erred.  It again appears that the applicant was simply groping in darkness.

The fourth ground attacks the procedure which the court adopted. Where an accused is aggrieved with procedural issues his or her remedy lies in instituting an application for review. It is an elementary principle of law that an appeal is intended to attack the court’s findings on the merits. The ground therefore appears hopelessly misplaced.

Therefore, the applicant enjoys no prospects of success on appeal against conviction not only because of the generalized grounds of appeal but also on the basis that even if the appeal court would be of a different view on the validity of the appeal and accept it as valid, the applicant would still have no prospects of success on the merits.

As already indicated earlier, I determined that the applicant had no prospects of success on the appeal against sentence. The circumstances of the matter justified the sentenced imposed by the trial court. The applicant was already in custody on another charge when he escaped from lawful custody. That made the offence a serious one more so when coupled with the dangers of him possibly spreading the Covid 19 infection that he was afflicted with. It is unimaginable that the trial court could have considered the imposition of a non-custodial sentence such as community service in a situation where the applicant was already an inmate at the institution for another offence. The rule that community service must be resorted to in any case where a sentence of 24 months imprisonment or less is imposed is not meant to be applied blindly. It is difficult if not impossible for a court to consider any other form of sentence other than imprisonment where that accused is already in custody for another offence. In any case sentencing is a matter of discretion and so long as it is within the limits of the penal provision provided and does not induce a sense of shock then it cannot be interfered with.

There are therefore no prosects that the applicant will succeed in having that custodial sentence set aside. Even if the appeal court were to interfere with the sentence by reducing it, the possibility of it substituting the sentence of imprisonment with a non-custodial one is next to nothing. In the circumstances the applicant clearly has no fighting chance in that regard.

The risk of abscondment

In addition to discharging the onus that his appeal enjoys prosects of success, the applicant also bears the responsibility to show that he is not a flight risk if admitted to bail pending the hearing of his appeal and that it is in the interests of justice that he be so admitted. See S v Dzvairo 2006(1) ZLR 45. Unfortunately, this factor is intricately linked to the issue of prospects of success. The more there are prospects of success the less the risk of abscondment. Where the prospects are tenuous the risk of abscondment conversely increases.

In the instant case, I have demonstrated how weak the applicant’s prospects are.  With a pending case of stock theft and the current prison term hanging over his head, the chances of the applicant submitting himself for the prosecution of his appeal and returning to serve the term of imprisonment are very slim. The risk of abscondment is clearly high. When the fact that he stands convicted of the offence of escaping from lawful custody is factored in, the conclusion that he will certainly abscond is inescapable.

Disposition

The application for bail pending appeal has no merit. It is accordingly dismissed.

Muronda Malinga Legal Practice, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners