Moses Joni v The State

The appellant was convicted on his own plea of guilty of theft as defined in s 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He unlawfully and intentionally took property, namely a 13 inch Apple MacBook Pro laptop, external hard drive, an Apple iPad and a wallet belonging to the complainant after tampering with the lock of a motor vehicle to access the property secured in the boot. On 13 October 2015 he was sentenced to 18 months imprisonment of which 6 months were suspended for 5 years on condition he does not commit an offence involving dishonesty. He was to serve an effective 12 months imprisonment. On 15 October 2015 he appealed against the penalty and applied for bail pending appeal, which was dismissed by the Magistrates Court. He then appealed to the High Court against the dismissal of his bail application. Evidence showed he had escaped from police when they sought to arrest him and was only arrested after a year in hiding.

• Whether the Magistrates Court misdirected itself in dismissing the application for bail pending appeal
• Whether the appellant demonstrated reasonable prospects of success on appeal against sentence
• Whether the sentence imposed was excessive
• Whether the appellant posed a flight risk

The appeal against the judgment of the Magistrates Court dismissing the bail application was dismissed.

In bail pending appeal matters: (1) The Court sits as an appellate court reviewing whether the lower court misdirected itself, not as a court of first instance. (2) After conviction, the presumption of innocence no longer applies and bail is not a right. (3) The onus is on the applicant to show positive grounds for granting bail - in the absence of positive grounds for granting bail, it will be refused. (4) The applicant must first and foremost show reasonable prospects of success on appeal. (5) The Court must balance the liberty of the individual against the proper administration of justice. (6) Factors to consider include prospects of success, likelihood of absconding (which are interconnected), the sentence imposed, and delay before appeal. (7) Where prospects of success are weak and the applicant has demonstrated flight risk (such as escaping arrest and hiding), bail will be refused.

The Court observed that the appellant "cannot seek to impeach the penalty imposed as that penalty is clearly not excessive when one considers the moral blameworthiness of the appellant." The Court also made the non-binding observation that "quite clearly the appellant is not a person to be trusted" based on his conduct in escaping police and hiding for a year.

This case reinforces important principles governing bail pending appeal in Zimbabwean criminal law, particularly: (1) that the presumption of innocence no longer applies after conviction; (2) the onus is on the convicted person to demonstrate positive grounds for bail, not merely the absence of grounds for refusal; (3) reasonable prospects of success on appeal are a threshold requirement; (4) even with prospects of success, bail may be refused in serious cases or where there is flight risk; and (5) courts must balance individual liberty against proper administration of justice, with the convicted person bearing the burden to tilt the balance in their favour.