Three applicants, who were police officers, were convicted of culpable homicide by the High Court sitting on Circuit in Gweru for the death of a suspect in their custody. They were each sentenced to 8 years imprisonment. The applicants were granted leave to appeal to the Supreme Court, primarily on an important question of law regarding the definition of an accomplice witness - specifically whether the state's key witness should have been classified as an accomplice. The applicants had waited for trial for a period beyond 5 years and had complied with all bail conditions prior to conviction. They now applied for bail pending their appeal to the Supreme Court.
The application for bail pending appeal was dismissed.
When determining an application for bail pending appeal, the court must balance the prospects of success on appeal against the interests of justice, with the onus on the convicted applicant to show both reasonable prospects and that justice will not be endangered. The grant of leave to appeal does not, per se, entitle a convicted person to bail pending appeal. An arguable case on a technical legal point does not amount to reasonable prospects of success where the trial court has dealt with that issue in depth and reached sound conclusions. In serious cases involving substantial prison terms, particularly where police officers have been convicted of crimes against persons in their custody, the risk of absconding and the public interest in seeing justice served outweigh claims of preparedness to serve sentence if the appeal fails. The presumption of innocence having fallen away upon conviction, bail pending appeal is not granted as a matter of course; rather, the convicted person must tip the balance in favour of liberty by showing positive grounds for the exercise of the court's discretion.
The court observed that a sentence of 2 years imprisonment for culpable homicide committed by police officers against a suspect in custody would trivialize the lives of suspects in custody and send the wrong message to police officers about the value of life of suspects in their care. The court noted that pledges by convicted persons that they will serve their sentence if their appeal fails are 'empty ones that cannot be supported in any way' given the natural human inclination to avoid lengthy imprisonment. The court also commented that state concessions on bail applications should only be made by counsel who are fully privy to the matter and have given due consideration to all issues, not merely on the formal basis that leave to appeal was granted.
This case reinforces the strict approach Zimbabwean courts take to bail pending appeal, particularly in serious criminal cases involving substantial sentences. It emphasizes that: (1) the grant of leave to appeal does not automatically entitle a convicted person to bail; (2) reasonable prospects of success require more than merely an arguable case on a technical point; (3) society's interest in seeing convicted persons serve their sentences is particularly strong where police officers have been convicted of serious crimes against persons in their custody; and (4) substantial prison terms create strong inducements to abscond that outweigh previous good conduct on bail before conviction. The case is significant for its discussion of how courts should approach cases where police officers abuse their authority against suspects in custody, sending a message about the value of lives of persons in custody.