Tinos Tauro v The State

The applicant was charged, convicted and sentenced for rape in contravention of s 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The victim was an 11-year-old girl. The applicant was sentenced to 16 years imprisonment, of which 6 years was suspended for 5 years on condition that he would not commit any offence of a sexual nature during that period for which he would be convicted and sentenced to imprisonment without the option of a fine. The magistrate found that sexual intercourse had occurred and was consensual, but the victim was 11 years old and the applicant knew her age. The applicant noted an appeal against both conviction and sentence and applied for bail pending the determination of that appeal.

• Whether the applicant demonstrated reasonable prospects of success on appeal against conviction
• Whether the applicant demonstrated reasonable prospects of success on appeal against sentence
• Whether there was a risk of the applicant absconding if granted bail
• Whether it was in the interests of justice to grant bail pending appeal

The application for bail pending appeal was dismissed.

In applications for bail pending appeal, the applicant must demonstrate that it is in the interests of justice to be admitted to bail by showing: (1) reasonable prospects of success on appeal, and (2) no risk of absconding. Where an applicant's prospects of success on conviction are poor and even if there are prospects on sentence, a custodial sentence would still be imposed on appeal, and where the applicant has experienced imprisonment and may abscond, the interests of justice do not favour granting bail pending appeal. The fact that an appeal can be prosecuted expeditiously (with the Appeal Court sitting four days per week) weighs against granting bail, as there is no prejudice to the applicant in prosecuting the appeal while serving the sentence.

The court observed that while there was a possibility that the sentence might be interfered with on appeal, a custodial sentence would still be imposed. The court also noted approvingly the improved efficiency of the Appeal Court, which now sits four days per week, suggesting that applicants genuinely interested in prosecuting appeals can do so in a short space of time without the need for bail pending appeal.

This case reinforces the strict application of the test for bail pending appeal in Zimbabwe, particularly in serious sexual offence cases involving child victims. It demonstrates that bail pending appeal will be refused where prospects of success on appeal are poor, where a custodial sentence is likely even if the appeal partially succeeds, and where there is a risk of absconding. The judgment also reflects the improved efficiency of the Appeal Court system (sitting four days per week), which reduces the justification for bail pending appeal on grounds of delay.