David Edward Gardner v The State

The appellant was convicted on two counts of contravening s 3(1)(b) of the Sexual Offences Act (Chapter 9.2) and one count of contravening s 7(1)(a) of the Criminal Law (Codification and Reform) Act (Chapter 9.23). He was sentenced to 8 months imprisonment on each count, totaling 24 months, with 12 months suspended on condition of good behavior, leaving an effective sentence of 12 months. The appellant noted an appeal against both conviction and sentence. He applied for bail pending appeal to the trial magistrate, which was dismissed. He then appealed the refusal of bail to the High Court. The appellant is a British national holding a British passport. The Chief Recorder indicated that transcribing the voluminous record of proceedings for appeal would take considerable time, meaning the appellant was likely to serve his entire sentence before the appeal could be heard.

• Whether the trial magistrate properly exercised discretion in refusing bail pending appeal
• What factors should be considered in applications for bail pending appeal
• Whether the interests of justice would be prejudiced by granting bail pending appeal
• Whether there was a risk of absconding justifying refusal of bail
• Whether the appeal has prospects of success

The appeal succeeded. The court ordered: (1) The appellant is admitted to bail; (2) The appellant must deposit $5 trillion with the Clerk of Court, Harare Magistrates Court; (3) The appellant must surrender his passport to the clerk of court until the appeal is determined.

In applications for bail pending appeal, a court must consider multiple factors and not limit itself to only the prospects of success. The relevant factors include: (1) the risk of absconding; (2) prospects of success on appeal; (3) the right of the individual to liberty; and (4) the potential length of delay before the appeal can be heard. The onus in bail pending appeal applications rests with the applicant to show that the interests of justice will not be prejudiced by admission to bail. Where anticipated delays in preparing the appeal record may result in the applicant serving the entire sentence before the appeal is heard, and there are prospects for a different view on sentence, the interests of justice favor granting bail. A trial court that fails to consider all relevant factors in a bail pending appeal application misdirects itself.

Makarau JP provided extensive obiter on the concept of 'interests of justice' in bail applications, noting that while the right to liberty is easy to define, the interests of justice are difficult to define and apply, varying from case to case. The court observed that the interests of justice encompass: securing attendance at trial, preventing evidence tampering, and maintaining public confidence in the justice system. The court noted that where granting bail would result in public uproar or affront the public's notion of justice (such as in cases of serial rapists or murderers), courts should be cautious in granting bail. Conversely, denying bail to an accused who is later exonerated on appeal would equally bring the administration of justice into disrepute. The judge emphasized that the concept of interests of justice is not a single aspect but involves protecting the integrity and public perception of the justice delivery system.

This case is significant in Zimbabwean bail jurisprudence as it elaborates on the proper approach to bail pending appeal applications. It clarifies that courts must consider multiple factors beyond just prospects of success, including the right to liberty and potential delays in the appeal process. The case emphasizes that where delays in transcribing records may result in a convicted person serving their entire sentence before appeal, this constitutes a significant factor favoring bail. It reinforces that failure to consider all relevant factors constitutes a misdirection. The judgment also provides useful analysis on what constitutes 'interests of justice' in the bail context, including public perception and the integrity of the justice system.