Bobby Franscisco v The State

The applicant was convicted by the Magistrates Court at Chinhoyi on a charge of rape as defined in s 65(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegation was that during March 2014 at House Number 3929 Coldstream Chinhoyi, the applicant had sexual intercourse with a female juvenile aged eight years who at law is incapable of consenting to sexual intercourse. The applicant pleaded not guilty but was convicted following a full trial and sentenced to twenty years imprisonment. He appealed against both conviction and sentence on 31 October 2014, and on 30 June 2015 applied for bail pending determination of the appeal.

• Whether the applicant established positive grounds for bail pending appeal
• Whether the applicant demonstrated reasonable prospects of success on appeal against conviction
• Whether the applicant demonstrated reasonable prospects of success on appeal against sentence
• How to balance the applicant's right to liberty against the administration of justice in a serious criminal matter
• Whether the risk of absconding outweighed prospects of success on appeal

The application for bail pending appeal was dismissed.

In applications for bail pending appeal, the applicant bears the onus of establishing positive grounds for the granting of bail. While reasonable prospects of success on appeal is a primary consideration, bail may still be refused in serious cases even where such prospects exist, particularly where: (1) the offence is serious in nature; (2) the sentence imposed is substantial; (3) the applicant has experienced prison life and the inducement to abscond exists; and (4) there has been delay in bringing the application. The court must balance the applicant's right to liberty against the proper administration of justice, and in the absence of positive grounds for granting bail, it must be refused. All factors must be considered together and weighed against each other in the context of all circumstances of the case.

The court observed that the transcribed record of proceedings was available and expressed the view that energy would be better expended on prosecuting the appeal itself rather than seeking release on bail at that stage. Zhou J noted that if the applicant had pushed for determination of the appeal within the eight months since judgment, it would have been heard or would be close to being heard. The court also remarked that when assessing prospects of success, the inquiry does not look at whether the appeal should or ought to succeed, but rather whether the appeal has substance or raises issues from which it can be concluded that it is not a predictable failure or manifestly doomed to failure.

This case illustrates the application of established principles governing bail pending appeal in Zimbabwean criminal law, particularly in serious sexual offence cases. It demonstrates that even where reasonable prospects of success exist, bail may still be refused where the offence is serious, the sentence is lengthy, and there is a risk of absconding. The case emphasizes that the onus is on the applicant to tip the scales in favour of bail by establishing positive grounds, and that courts must balance individual liberty against the proper administration of justice. It also highlights that delay in bringing a bail application after conviction can be a factor weighing against the applicant.