Tinashe Chidura v The State

The applicant was convicted after trial on the first count of fraud in contravention of s 136(1) of the Criminal Law (Codification and Reform) Act involving US$4000.00, of which nothing was recovered. He was also convicted on his own plea of guilty on the second count of escaping from lawful custody in contravention of s 185(1)(a) of the Criminal Law (Codification and Reform) Act. For the fraud charge, he was sentenced to 3 years imprisonment with 6 months suspended for 5 years on condition of good conduct and a further 6 months suspended on condition of restitution, leaving an effective sentence of 2 years imprisonment. For escaping from lawful custody, he was sentenced to 12 months imprisonment with 3 months suspended on condition of good conduct, leaving an effective term of 9 months imprisonment. The applicant noted an appeal against both conviction and sentence on the fraud count, and against sentence only on the escaping custody count. He then applied for bail pending appeal. At the hearing, the applicant abandoned his appeal against conviction on the fraud charge and pursued bail pending appeal against sentence only on both counts.

• Whether the applicant should be granted bail pending appeal
• Whether there were prospects of success on appeal against sentence
• Whether the applicant posed a flight risk
• Whether a fine rather than imprisonment would be appropriate for the fraud offense
• Whether the two counts should be treated as one for purposes of sentence

The application for bail pending appeal was dismissed.

In an application for bail pending appeal, the court must consider: (i) prospects of success on appeal; (ii) likelihood of abscondment; (iii) likely delay before appeal is heard; and (iv) right to liberty. Where there are no prospects of success on appeal and the offenses are serious involving preplanning, and where the applicant has demonstrated a propensity to abscond (having previously escaped from lawful custody), bail pending appeal should be refused. In serious cases, bail should sometimes be refused even where there is a reasonable prospect of success on appeal, particularly where there is danger of the convicted person absconding.

The court observed that appeals are no longer taking a long time before they are heard, suggesting that delays in the appeal process should not be a significant factor weighing in favor of granting bail in this case. The court also commented that imposing a fine of $300 for fraud involving $4000 with no recovery "would mean that crime pays" when the applicant is supposed to disgorge ill-gotten proceeds, emphasizing the importance of ensuring that sentences serve as adequate deterrents and do not make criminal activity profitable.

This case illustrates the application of established principles governing bail pending appeal in Zimbabwean criminal law, particularly in cases involving serious offenses like fraud. It demonstrates that prospects of success on appeal are crucial to bail applications, and that even where there may be some prospect of success, bail can be refused in serious cases where there is a risk of absconding. The case also reinforces the principle that sentences must reflect the seriousness of the offense and serve as a deterrent, and that ill-gotten gains must be disgorged rather than crime being allowed to pay through lenient sentences.