Godfrey Chowa v The State

The applicant was convicted by the Regional Court Rusape of raping his 13-year-old stepdaughter in terms of s 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The complainant testified that she was raped on 26 July 2018 and threatened with death if she reported. When threatened with further abuse on 30 July 2018, she fled to her aunt and disclosed the ordeal to her grandmother. She had previously complained to her mother about being "fingered" by the accused, but her mother was indifferent. The trial court relied on the complainant's credible evidence, the evidence of Nelia Mutsago (recipient of report), and medical evidence conclusive of penetration. The applicant raised an alibi defence at trial, claiming he was with his wife in Rusape, but the court rejected this defence and found his wife's testimony not credible. The applicant was sentenced to 18 years imprisonment with 3 years suspended on conditions of good behaviour. He filed an appeal against both conviction and sentence and applied for bail pending appeal.

• Whether the applicant had prospects of success on appeal against conviction
• Whether the applicant had prospects of success on appeal against sentence
• Whether bail pending appeal should be granted considering the prospects of success, likelihood of abscondment, gravity of the offence, and the sentence imposed

The application for bail pending appeal was dismissed.

In an application for bail pending appeal, the main consideration is whether there are prospects of success on appeal, which must be considered in conjunction with the likelihood of abscondment in light of the gravity of the offence, the sentence imposed, the likely delay before the appeal is heard, and the right to individual liberty. Where a trial court has made findings on the credibility of witnesses, particularly in cases involving sexual offences against minors, an appeal court will be highly unlikely to interfere with such credibility findings absent compelling reasons. An alibi defence raised only at trial (and not disclosed during investigations) carries significantly less weight than one disclosed earlier. The right to individual liberty cannot on its own stand in the way of the interests of administration of justice in the absence of prospects of success on appeal and positive grounds for granting bail.

The court observed that where a complainant is dependent on the accused for her livelihood and looks up to him as a father, yet still testifies against him (even referring to him as "father" during testimony), this strengthens the credibility of the complainant's evidence and suggests lack of motivation to fabricate. The court also noted that when a defence of alibi is raised, the accused should disclose all details for investigations, and once raised, the state has the onus to disprove it; however, the stage at which the defence is raised is important - police cannot investigate without information being provided to them.

This case reinforces the principles governing bail pending appeal in Zimbabwe, particularly in serious sexual offences involving minors. It demonstrates the high threshold applicants must meet when seeking bail after conviction for rape of juveniles, emphasizing that appellate courts are highly reluctant to interfere with trial courts' credibility findings. The judgment also confirms sentencing guidelines for rape of juveniles established in S v Banda, requiring effective prison terms of not less than 10 years. It illustrates how the timing of raising an alibi defence affects its weight, and how the right to individual liberty must be balanced against the interests of justice administration when there are no prospects of success on appeal.