State v Chipinda [2025] ZWHHC 426 (16 July 2025)

2 HH 426 - 25 HCHCR 2761/25 PASCA CHIPINDA versus THE STATE HIGH COURT OF ZIMBABWE FOROMA J HARARE; 20 June and 16 July 2025 Application for Bail Pending Appeal C Tinarwo with T Chakurira, for the applicant C Muchemwa, for the State FOROMA J: The applicant has applied for bail pending appeal following his conviction and sentencing in the Regional Magistrates Court at Harare Magistrates Court on a charge of contravening section 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] commonly referred to as rape. Applicant was sentenced to 20 years imprisonment 5 years of which were suspended for 5 years on condition of good behaviour leaving an effective sentence of 15 years imprisonment. The applicant noted an appeal against both conviction and sentence on the following grounds – Ad conviction The court a quo erred and misdirected itself in fact and law by holding that the offence for which the appellant stands convicted on took place in April 2024 when the state’s allegations and all relevant supporting documents suggested a date in August 2024.The court a quo erred at law and in fact when it accepted as credible a rape complaint elicited through leading questions.The court a quo erred and misdirected itself in fact and in law by resolving the inconsistences regarding the finding of fresh and recent signs of sexual abuse on the complaint and the allegations of having been abused some seven months earlier against the appellant.The court a quo erred at law when it ruled out the possibility of false incrimination by the complainant it having been common cause that she had prior sexual experience. Ad Sentence The court a quo erred in law when it passed a sentence which is unduly harsh and excessive in the circumstances as to induce a sense of shock.The court a quo erred and misdirected itself in fact and in law when it paid lip service to the compelling and highly mitigatory circumstances of the appellant which if it had properly applied its mind on, it would not have settled for a long custodial sentence. It is the applicant’s contention in his bail application that his prospects of success on appeal on the above mentioned grounds against conviction are huge and that the prospects of success against sentence are bright. The case of State v Williams 1980 ZLR 466 is the locus classicus of the correct approach to be exercised by a court seized with an application for bail pending appeal. The applicant’s counsel quoted from the said judgment the pertinent observation by Fieldsend CJ which I reproduce as follows “_ _ _ _ the proper approach should be towards allowing liberty to person where that can be done without any danger to the administrative justice. In my view to apply this test properly it is necessary to put in balance both the likelihood of the applicant absconding and the prospects of success. Clearly, the two factors are inter – connected because the less likely are the prospects, the more inducement there is on an applicant to abscond.” Below I assess the prospects of success of each ground of appeal against conviction. 1st Ground of Appeal Against Conviction: At the hearing of the bail application Mr Tinarwo who appeared with Mr Chakurira was at pains to urge the court to accept that the discrepancy in the charge sheet and state outline namely the allegation that the offence took place in August and from the complainant’s oral evidence that it took place in April was fatal to the State case as the state did not seek to amend its documents. The court a quo found that the applicant’s wife testified to having given birth on 2nd April 2024 and that complainant visited her aunt shortly after the time the aunt had given birth. This put paid to the suggestion that the offence took place during August school holiday. Besides section 173(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] adequately addresses the applicant’s perceived problem of the alleged discrepancy on when the offence was committed as indicated in the charge sheet and State outline. The section reads as follows “173 _ _ _ (b) proof may be given that the act or offence in question was committed on a day or time more than three months before or after the day or period stated in the indictment summons or charge, unless it is made to appear to the court before which trial is being held that the accused is likely to be prejudiced thereby in his defence upon the merits and if the court considers that the accused is likely to be thereby prejudiced in his defence upon the merits it shall reject such proof and the accused shall be in the same position as if he had not pleaded.” I find that applicant has no prospects of success at all on this ground of appeal. The second ground of appeal against conviction impugns the court’s finding that the rape complaint was made timeously and spontaneously and that according to applicant the rape complaint was made in response to leading questions. When asked during the hearing of this application as to who the rape complaint was initially made, Mr Chakurira on behalf of applicant emphatically indicated that it was made to the social worker. Clearly counsel was mistaken and wrong as in paragraph 8 of the State outline the State alleged as follows: “On the same day in the evening, the complaint told her that the accused person had raped her but she remained silent.” Complainant confirmed this position during her oral evidence at the trial. It is worth noting that the record of trial shows that the complainant was not challenged at all on this evidence. I consider that the complaint in the 2nd ground similarly has no prospects of success at all. The 3rd ground of appeal against conviction impugns the court a quo’s acceptance of medical evidence that the state of the complainant’s hymen showed it had evidence of recent sexual abuse yet complainant was alleging a rape that took place more than 7 months before. I was really surprised at this ground of appeal as the medical report on page 168 of the record of trial refers to details of hymen as not fresh or healed. As a matter of fact the applicant’s counsels did not make any submissions in respect of this ground. There is not the slightest prospect of success on this ground either. The 4th ground of appeal criticises the court a quo for dismissing the defence claim that the complaint of rape against applicant may have been a result of false implication. At the hearing the applicant’s counsels struggled to present cogent submissions in support of this ground an indication of its impotence. I do not consider that there are any prospects of success on this as well for the reason that no bad blood was alleged or found to exist between applicant and his in laws or the complainant to support the alleged false implication. The rather flimsy suggestion that the false implication could be explained on the desire to shelter complainant’s own brother who it is alleged once sexually abused complainant was a desperate attempt to discredit the complainant’s performance as a witness. This with respect cannot make sense considering that according to the defence complainant was the one who had allegedly implicated the brother as the first culprit before revealing the applicant as the real culprit. The applicant appears to have abandoned making any submissions on any prospects of success vis a vis the appeal against sentence. However considering that the presumptive sentence on a conviction for a charge of rape committed in aggravating circumstances is 20 years and the court a quo having found aggravating factors against applicant one cannot seriously seek to assail the sentence in casu. It is important to note that the State’s counsel who had filed a concession to the bail application abandoned his concession after considering the poor showing by the applicant herein above. For the foregoing reasons and taking into account the correct approach laid in Williams case (supra) I find that there are no prospects of success to applicant’s appeal. In my view the applicant’s appeal is doomed to a predictable failure. The application for bail pending appeal is accordingly dismissed. Foroma J: …………………………………….. Zimudzi & Associates, applicant’s legal practitioners National Prosecuting Authority, respondent’s legal practitioners 2 HH 426 - 25 HCHCR 2761/25 2 HH 426 - 25 HCHCR 2761/25 PASCA CHIPINDA versus THE STATE HIGH COURT OF ZIMBABWE FOROMA J HARARE; 20 June and 16 July 2025 Application for Bail Pending Appeal C Tinarwo with T Chakurira, for the applicant C Muchemwa, for the State FOROMA J: The applicant has applied for bail pending appeal following his conviction and sentencing in the Regional Magistrates Court at Harare Magistrates Court on a charge of contravening section 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] commonly referred to as rape. Applicant was sentenced to 20 years imprisonment 5 years of which were suspended for 5 years on condition of good behaviour leaving an effective sentence of 15 years imprisonment. The applicant noted an appeal against both conviction and sentence on the following grounds – Ad conviction The court a quo erred and misdirected itself in fact and law by holding that the offence for which the appellant stands convicted on took place in April 2024 when the state’s allegations and all relevant supporting documents suggested a date in August 2024. The court a quo erred at law and in fact when it accepted as credible a rape complaint elicited through leading questions. The court a quo erred and misdirected itself in fact and in law by resolving the inconsistences regarding the finding of fresh and recent signs of sexual abuse on the complaint and the allegations of having been abused some seven months earlier against the appellant. The court a quo erred at law when it ruled out the possibility of false incrimination by the complainant it having been common cause that she had prior sexual experience. Ad Sentence The court a quo erred in law when it passed a sentence which is unduly harsh and excessive in the circumstances as to induce a sense of shock. The court a quo erred and misdirected itself in fact and in law when it paid lip service to the compelling and highly mitigatory circumstances of the appellant which if it had properly applied its mind on, it would not have settled for a long custodial sentence. It is the applicant’s contention in his bail application that his prospects of success on appeal on the above mentioned grounds against conviction are huge and that the prospects of success against sentence are bright. The case of State v Williams 1980 ZLR 466 is the locus classicus of the correct approach to be exercised by a court seized with an application for bail pending appeal. The applicant’s counsel quoted from the said judgment the pertinent observation by Fieldsend CJ which I reproduce as follows “_ _ _ _ the proper approach should be towards allowing liberty to person where that can be done without any danger to the administrative justice. In my view to apply this test properly it is necessary to put in balance both the likelihood of the applicant absconding and the prospects of success. Clearly, the two factors are inter – connected because the less likely are the prospects, the more inducement there is on an applicant to abscond.” Below I assess the prospects of success of each ground of appeal against conviction. 1st Ground of Appeal Against Conviction: At the hearing of the bail application Mr Tinarwo who appeared with Mr Chakurira was at pains to urge the court to accept that the discrepancy in the charge sheet and state outline namely the allegation that the offence took place in August and from the complainant’s oral evidence that it took place in April was fatal to the State case as the state did not seek to amend its documents. The court a quo found that the applicant’s wife testified to having given birth on 2nd April 2024 and that complainant visited her aunt shortly after the time the aunt had given birth. This put paid to the suggestion that the offence took place during August school holiday. Besides section 173(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] adequately addresses the applicant’s perceived problem of the alleged discrepancy on when the offence was committed as indicated in the charge sheet and State outline. The section reads as follows “173 _ _ _ (b) proof may be given that the act or offence in question was committed on a day or time more than three months before or after the day or period stated in the indictment summons or charge, unless it is made to appear to the court before which trial is being held that the accused is likely to be prejudiced thereby in his defence upon the merits and if the court considers that the accused is likely to be thereby prejudiced in his defence upon the merits it shall reject such proof and the accused shall be in the same position as if he had not pleaded.” I find that applicant has no prospects of success at all on this ground of appeal. The second ground of appeal against conviction impugns the court’s finding that the rape complaint was made timeously and spontaneously and that according to applicant the rape complaint was made in response to leading questions. When asked during the hearing of this application as to who the rape complaint was initially made, Mr Chakurira on behalf of applicant emphatically indicated that it was made to the social worker. Clearly counsel was mistaken and wrong as in paragraph 8 of the State outline the State alleged as follows: “On the same day in the evening, the complaint told her that the accused person had raped her but she remained silent.” Complainant confirmed this position during her oral evidence at the trial. It is worth noting that the record of trial shows that the complainant was not challenged at all on this evidence. I consider that the complaint in the 2nd ground similarly has no prospects of success at all. The 3rd ground of appeal against conviction impugns the court a quo’s acceptance of medical evidence that the state of the complainant’s hymen showed it had evidence of recent sexual abuse yet complainant was alleging a rape that took place more than 7 months before. I was really surprised at this ground of appeal as the medical report on page 168 of the record of trial refers to details of hymen as not fresh or healed. As a matter of fact the applicant’s counsels did not make any submissions in respect of this ground. There is not the slightest prospect of success on this ground either. The 4th ground of appeal criticises the court a quo for dismissing the defence claim that the complaint of rape against applicant may have been a result of false implication. At the hearing the applicant’s counsels struggled to present cogent submissions in support of this ground an indication of its impotence. I do not consider that there are any prospects of success on this as well for the reason that no bad blood was alleged or found to exist between applicant and his in laws or the complainant to support the alleged false implication. The rather flimsy suggestion that the false implication could be explained on the desire to shelter complainant’s own brother who it is alleged once sexually abused complainant was a desperate attempt to discredit the complainant’s performance as a witness. This with respect cannot make sense considering that according to the defence complainant was the one who had allegedly implicated the brother as the first culprit before revealing the applicant as the real culprit. The applicant appears to have abandoned making any submissions on any prospects of success vis a vis the appeal against sentence. However considering that the presumptive sentence on a conviction for a charge of rape committed in aggravating circumstances is 20 years and the court a quo having found aggravating factors against applicant one cannot seriously seek to assail the sentence in casu. It is important to note that the State’s counsel who had filed a concession to the bail application abandoned his concession after considering the poor showing by the applicant herein above. For the foregoing reasons and taking into account the correct approach laid in Williams case (supra) I find that there are no prospects of success to applicant’s appeal. In my view the applicant’s appeal is doomed to a predictable failure. The application for bail pending appeal is accordingly dismissed. Foroma J: …………………………………….. Zimudzi & Associates, applicant’s legal practitioners National Prosecuting Authority, respondent’s legal practitioners