Webster Dodzo v The State

The applicant (third accused) together with two accomplices was charged and convicted after a full trial of six counts of unlawful entry into premises in aggravating circumstances as defined in s113 of the Criminal Law (Codification and Reform) Act. The trial court found that: (1) stolen property was recovered from the applicant's residence; (2) the applicant claimed he was merely storing the property for the first accused; (3) complainants identified their property recovered from the applicant at the police station; (4) the first accused's vehicle was identified at the crime scene being loaded with stolen property; (5) a consistent modus operandi was used - houses were forcibly broken into and guard dogs and cats were poisoned with rat poison; (6) rat poison granules were recovered from the first accused's vehicle; (7) the accused persons acted in concert and common purpose. The applicant was sentenced to 30 years imprisonment (5 years on each of 6 counts), with 2 years suspended on conditions of good behaviour and 8 years suspended on condition of restitution, leaving 20 years effective imprisonment. The applicant appealed against conviction and sentence and sought bail pending appeal.

• Whether the applicant should be granted bail pending appeal
• Whether there were prospects of success on appeal against conviction
• Whether there were prospects of success on appeal against sentence
• Whether the sentence imposed was so excessive that it might be substantially reduced on appeal to warrant immediate release

The application for bail pending appeal was dismissed.

Bail pending appeal will be refused where: (1) there are no reasonable prospects of success on appeal against conviction, particularly where conviction is based on credibility findings by the trial court which an appellate court cannot disturb without having observed witness demeanor; (2) even if there are some prospects of success on sentence appeal, the sentence imposed is not so excessive that it is likely to be reduced on appeal to such an extent that would entitle the applicant to immediate release; and (3) consistency requires similar treatment of co-accused in similar circumstances. The possession of stolen property identified by complainants, combined with adverse credibility findings against an accused's explanation, constitutes a proper basis for conviction that an appellate court will not interfere with on a bail pending appeal application.

The court observed that in its view, the trial court misdirected itself in not ordering some of the sentences on some counts to run concurrently, which made the sentence appear somewhat excessive. The court also noted that given the circumstances of the offences, which appeared well-planned and sustained as an enterprise, any reduction in sentence would not be substantial. The court took judicial notice that the criminal appeals division does not currently have a backlog of appeals and expressed the view that the justice of the case required that the applicant expedite his appeal rather than await the appeal process while on bail.

This case illustrates the strict approach Zimbabwean courts take to bail pending appeal applications in serious property crimes involving organized criminal conduct. It demonstrates that: (1) appellate courts will not interfere with trial court credibility findings absent the ability to assess witness demeanor; (2) prospects of success on appeal must be demonstrated for bail pending appeal to be granted; (3) even where there may be prospects of success on sentence appeal, bail will be denied if the sentence is unlikely to be reduced to the point of immediate release; (4) consistency in treatment of co-accused in similar circumstances is an important consideration; and (5) the existence or absence of appellate backlogs is a relevant factor in bail pending appeal decisions.