Forbes Sigudhu v The State

On 29 May 2016 at Number 10711 Phase 2, Eastview, Harare, the applicant unlawfully and with indecent intent inserted his fingers into the sex organ of the complainant without her consent. The applicant's defence was that he never touched the complainant and claimed he was in a relationship with her. However, two independent witnesses saw him holding and struggling with the complainant who was calling out for help. On 29 June 2016, the applicant was convicted by the Magistrates' Court of one count of aggravated indecent assault as defined in s 66 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 10 years imprisonment of which 3 years were suspended for 5 years on condition that he does not commit any offence of a sexual nature. The applicant noted an appeal against both conviction and sentence on 5 July 2016 and then applied for bail pending the determination of his appeal.

• Whether positive grounds existed for the applicant to be admitted to bail pending appeal
• Whether the appeal had prospects of success
• What factors should be weighed in considering bail after conviction, including the seriousness of the offence, the period of imprisonment imposed, likely delay in hearing the appeal, and the need to uphold liberty without jeopardising the administration of justice
• Whether the conviction was proper given the evidence of two independent witnesses corroborating the complainant's testimony

The application for bail pending appeal was dismissed.

In an application for bail after conviction and sentence, the applicant must show positive grounds for being allowed to prosecute the appeal while out of jail, as the presumption of innocence no longer applies. In considering whether such positive grounds exist, the court will consider: (1) the prospects of success of the appeal; and (2) weigh that factor against other factors such as the seriousness of the offence, the period of imprisonment imposed, the likely delay in the hearing of the appeal, and the need to uphold the liberty of the applicant where that can be done without jeopardising the administration of justice. Where the appeal has no prospect of success and the sentence is severe (creating flight risk), bail pending appeal will be refused.

The court observed that the question of whether the case constituted simple indecent assault or aggravated indecent assault was for the appellate court to determine, and that this distinction only has a bearing on the sentence that may be imposed. The court also noted that the applicant, through counsel, appeared to accept at the bail hearing that he was holding the complainant, but failed to explain why he was doing so - representing an inconsistency with his original defence that he never touched her.

This case illustrates the application of principles governing bail pending appeal in Zimbabwean criminal law, particularly in cases involving serious sexual offences. It demonstrates the higher threshold applicants face after conviction, requiring positive grounds to be shown and the need to demonstrate reasonable prospects of success on appeal. The case also highlights how severe sentences for serious sexual offences may be a factor weighing against bail due to flight risk considerations.