GIBSON, J: [1] Five appellants lodged notices of appeal against conviction and sentence by the Regional Magistrates’ Court, Mr. Retief.
The convictions were 2 for robbery, 3 for unlawful possession of ammunition i.e Counts 4, 8 and 9, contrary to the Arms and Ammunition
Act 7 1996, 4 charges of unlawful possession of firearms, i.e Counts 3, 5, 6 and 7.
[2] All the appellants pleaded not guilty to all charges. All were convicted, as charged on Count 1. On Count 2, 2 appellants were
convicted, namely, appellant 1 and 2. I will look at the allegation on the 2 counts of robbery first.
[3] Count 1. It is alleged that on 04/12/1999 the 5 Accused robbed Naftali Shikongo and Leonard Nandembo both of whom worked at the
Elago Club (hereafter to be referred to as ‘the club’). The State further alleges that at the time the 5 Accused were
armed with two revolvers and a knife. In the process, they stole N$1,000.00, a shotgun, wrist watch and a machine for detecting counterfeit
money.
[4] As regards Count 2, the State alleges that four Accused namely, 1, 2, 4 and 5 armed with a shotgun, robbed Johannes Nghifilwa
and stole one shotgun no. 9638980, one Motorola radio and some ammunition. I will refer to the appellants as ‘Accused’
1, 2, 3 etc.
[5] In this appeal, only Accused 2, 3 and 5 are represented. Accused 1 and 4 do not appear whereas they had filed Notices of Appeal
against both conviction and sentence.
[6] Before I go into the evidence I will touch on an issue that intrudes upon the whole case. The issue arises from the State of the
record.
[7] It is common cause that as a result of a point in limine taken by the State in earlier proceedings, i.e on the 29/10/2004 the
Court ordered a reconstruction of the record. The Leaned trial magistrate has now filed a report as to what transpired thereafter.
[8] To sum up the position so far, the record has still not been reconstructed. However the reason for the delay does not lie at the
door of the Court below. From the report it seems clear that the Learned Regional Magistrate did everything that could possibly be
done, by trying to trek down the witnesses who had deposed at the trial. The presiding officer called upon the Police Force and Counsel
who had appeared for the State as well as some of the appellants. But none could help. As a result the presiding officer summoned
all the accused persons to his office and gave them the notes that he kept during the trial and asked that the accused should read
the summary and make any comments or additions they wished to make. The report is accepted as part of the record:
The contents are follows:
‘‘Appellant 1, Petrus Felix Thomas. As to the evidence of Leonard Nandombe, ‘I disagree with that and I have nothing to add’.
As to the evidence of Thomas Itope; ‘I disagree with that and I have nothing to add.
Appellant 2 Immanuel Gabriel; As to the evidence of Leonard
Nandombe;
‘No comment about this incredible witness evidence’.
As to the evidence of Thomas Itope;
Accused no. 2 doubt this evidence, therefore he cannot agree
with it. He cannot recall this witness said anything
as it stand in his evidence. He is also of the opinion that no competent court of law would consider such evidence as reliable one.
This evidence could be taken from anywhere, thus I wouldn’t agree with this evidence’’.
Appellant Thomas Jonas. As to the evidence of Leonard Nandombe
and Thomas Itope; ‘Comment by accused 3, Thomas Annanias
Joseph. I the accused person No. 3 hereby certify that I won’t agree
with either of the state’s
evidence contained hereof due to the followings;
1.
I was in court personally but I did not heard the witness testified like this.
2.
This evidence surface after 3 years of searching, I would say are an invented evidence which were simply created by an desperate trial
magistrate who was requested to present the secondary evidence to the appeal court as a matter of urgency.
3.
This evidence were not collected procedural as directed in the amended court order delivered by the judge president on 29 October
2004.
4.
No witness whose evidence are missing were traced no any info’s from the notes of the state prosecutor or the lawyer to corroborate
the supposedly evidence from the magistrate’s note.
5.
This evidence could have been taken from anywhere, it can be reconstructed based on the record of proceedings, it can be also opinion
of the magistrate who is desperate to provide something to the appeal court as requested.
6.
There is absolutely no proof to say that the evidence were collected from the note. The magistrate said sometime ago that he had nothing
to add- see attached. One may wonder where was his note all those 4 years when the matter used to be delayed due to the incomplete
of the record.
7.
We were in the High Court of Namibia on the 30th November 2005 supposedly for the appeal hearing. The state could not provide the
missing evidence, thus decided to proceed with the incomplete record to which the defence objected and postponed the matter for argument
preparation. Where were the evidence on 31/11/2005? It is my opinion that there is no reasonable man would consider this evidence to upheld the conviction an sentence in this matter’’.
Appellant Jafet Ikonia. As to the evidence of Leonard
Nandombe; ‘Accused no. 4 have no comment about this evidence,
but I do have
doubt about the witness due to fact that he was unreliable’. As to
the evidence of Thomas Itope; '
No comment’.
Appellant 5 Aktoffel Nakanyala; As to the evidence of Leonard Nandombe; ‘I do not agree with that’ As to the evidence
of Thomas Itope; I have no comment on that your worship. I did no record anything during the trial’. These passages are copied
as they appear in the notes of the Presiding Regional Magistrate.
[9] Whereas the Leaned magistrate’s notes on the evidence of Leonard Nandembo (page 75 of the record) and Thomas Itope (page
155 of the record) could have been accepted if the defects had been corrected and tendered in accordance with established practice,
that is to say made under oath or affidavit form, the summary cannot be admitted.
[10] Regarding the correct procedure to be followed in reconstructing the record, see S v Shekelele 1978 1 SA 993 (T) at 994, R v
Notjie 1950 4 SA 725 (E) at 726, which authorities show clearly what should have been done after the record was sent back.
According to the above authorities,
‘‘The Clerk of the Criminal Court should obtain the best available secondary evidence and place it before the reviewing Judge with a
report, in obtaining such secondary evidence, the Clerk of the Court should approach those of the witnesses
whose evidence
is defective and others who were present at the trial (as, e.g the magistrate, the prosecutor or the interpreter) to obtain from
them, on affidavit, the proof of what the record contained. He should give both the accused and the
State
an
opportunity to pursue what he has asserted to submit their versions for transmission to the reviewing Judge’’.
This passage is well known. I only cited it because the failure to
comply with it has rendered the results of a painstaking and
laborious task futile. As a result the summary cannot
be used for
the purpose for which it was intended to be used.
[11] In conclusion this Court will proceed on the record presented but leaving out the summary of the evidence including that of Nandembo
and Itope.
[12] Whereas both sides had earlier raised the state of the record as an obstacle impeding progress in the preparation of their heads
of argument, after further argument in Court and on a further consideration of the Leaned Regional magistrates report, both Counsel
agreed that the summary be left out. Both also agreed that there is enough evidence on record to enable this Court to make a proper
and fair adjudication of the issues. The decision makes commendable sense and is in accord with past precedence: Aderito D.C.D Manuel
and Another v The State, unreported judgment of this Court, CA 444/98, delivered on the 30/04/2001, per Teek, JP.
[13] As regards Count 1, the facts are that on the evening of the 4th December 1999, patrons at Elago club were playing pool or watching T.V etc when the club door was suddenly closed by a man in a black
leather jacket (he was later identified as Accused 2). The man, armed with a revolver, ordered every one to lie down. Another man
also in the club, (identified later as Accused 1) started waving a revolver. All the patrons in the club complied with the order
save for the barman who remained on his feet. Another man, who had been in the club for sometime and had lain down, got up shortly
thereafter. This man who was later identified as Accused 4, was next seen leaving the club with the robbers at the end of the events.
[14] Watching these events from a locked inner room, was the cashier, Mr Shikongo. He said on seeing these events, he pressed the
panic button but was interrupted by another man in a leather jacket who smashed the door to the cash room and began to assault him
(Mr Shikongo) with a baton while waving a knife. Mr Shikongo managed to escape into the club area but had to lie down with others.
The barman who was still defying the order to lie down was shot by Accused 1 and suffered injuries in the stomach area. Further,
the bullet that hit the barman also hit Mr. Itope, a visitor at the club, on the elbow.
[15] In regard to count 2, the facts were that on 02/01/2000 Mr Nghifilwa Johannes was on duty as a security guard at the Katutura
Community Hall. At about 11.30 pm Mr Ngifilwa was approached by 4 men who asked about the closing time of Liquor stores. As he gave
an answer he was suddenly thrown down and his shotgun and Motorola radio were taken away. Of the property stolen, the shotgun was
found in a taxi in which Accused 1, 2, 4 and 5 were riding in on the 3rd January 2000. The Motorola radio was recovered later by Constable Iyambo from a house, pointed out by Accused 2. Also recovered from
the house was a pair of green trousers with knee pockets. The security guard, Mr Nigifilwa, described similar trousers as being worn
by one of the robbers.
[16] All the accused persons denied taking part in the robberies. The first question therefore is one of identify, and, rolled into
this question is the question whether the Learned trial Magistrate was correct in convicting the accused on the basis of common purpose
[17] The State called a number of witnesses and produced a video film from the surveillance camera posted at the Club premises at
the time. The witness’s evidence was that after the shooting three men proceeded to empty the cash tills as they assaulted
someone on the head with an empty till. In addition, the security guard was relieved of his shotgun as the robbers got away.
[18] Accused 1 and 2 were subsequently identified by witnesses at identification parades and on video film. Accused 3, 4 and 5 were
also identified from the film by Constable Iyambo. From the video recording, Accused 5 appeared to have been in the club for quite
a while before the robbery, he was seen playing snooker and chatting with Accused 1 and 2. However, moments before the door was shut
and the robbery started, Accused 5 was seen leaving the club.
[19] In regard to the 5 counts of unlawful possession of fire arms and 2 of ammunition, these items were found on the arrest of Accused
1, 2, 4 and 5 on 03/01/2000 and some, later on a pointing out including by accused 3.
[20] Constable Iyambo explained the circumstances. He said he had a tip off about a robbery at the Furstenhoff Hotel on 03/01/2000.
He kept surveillance with other officers. He next saw Accused 1 and 5. Accused 1 sat down near the hotel, and had a white plastic
bag with contents in it. Accused 1 placed the bag a few meters from him. Accused 2 also arrived. He was on his own. Both Accused
2 and 5 were walking about, but each on his own. Constable Iyambo then saw Accused 4 entering the drive way of the Furstenhoff Hotel.
He then lost sight of him. Some time passed. Then suddenly all four walked away. He next caught up with them in a taxi headed for
Katutura. The taxi had stopped at a Police road block, and Accused were by then in a Police van. The Police Constable at the roadblock
pointed at a plastic bag in the taxi. The bag was similar to the one Accused 1 had been carrying near the hotel. He opened it and
found a revolver and ammunition. The officer manning the roadblock handed Constable Iyambo a shotgun as part of the contents of the
bag. Accused 1 then announced that all the weapons in the bag were his. Constable Iyambo said the sawn off shotgun was identified
later as the one stolen from Club Elago.
[21] Accused 3 was arrested much later on and was identified by Constable Iyambo as the man in the video film recording who was seen
smashing into the Cashier’s room armed with a knife.
[22] All accused persons except accused 1 and 3 denied possession of arms or ammunition. Save for the admission of Accused 1 set out
above no other admissions were made. However, Accused 3 made a confession which was ruled admissible in evidence. Also it was through
accused 3 that the second shotgun was recovered.
[23] The fact of the robberies was not in issue. The issue was who were the individuals who participated in each robbery and had possession
of the various weapons.
[24] The State’s argument is that all 5 accused persons were involved in the robbery in Count 1 and that Accused 1, 2 and 5
were involved in Count 2, thus the Court a quo was correct in holding that the accused persons had been acting in common purpose
in both instances, so the argument concluded.
[25] The defence have challenged the finding of the Court as well as the reliance on the doctrine of common purpose. The defence maintains
that the accused were not involved. In particular, the Defense criticizes the Courts’ finding that the accused had possession
of the weanpons and ammunition, jointly.
[26] In giving judgment the Leaned Regional Magistrate said, at page 498 of the record,
‘‘Club Elago at that stage was fitted with a surveillance camera. The whole crime was therefore recorded on video camera. Not only were
some of the witnesses able to identify the accused persons without the
help of this video camera, but also that
video film was shown in
Court, and with that assistance, they could make identification
of
the
persons who were responsible for the robbery’’.
[27] The Court was careful not to give evidence itself when dealing with the evidence of the video and the identity of persons shown
on the video. I quote from the judgment,
‘‘When Sergeant Iyambo looked at that video recording for the first time,
he could identify Accused number 1 already as Accused no. 1 who was known to him
before that robbery. In Court he could also identify the other persons, all five the accused persons (sic)’’.
The approach of the Court a quo could not be accepted.
[28] The Court was justly satisfied about the correctness of the evidence of identification given by Constable Iyambo and relevant
witnesses. The latter had been observers at the scene, i.e. the Club and the Katutura Community Hall. The detailed evidence of Mr.
Naftali Shikongo and Mr. Nandembo, relating to accused 1, 2 and 5 though showing some confusion was understandable given the sudden
turn of events. The 2 witnesses were however confirmed by other evidence. In addition, as against Accused 3 there was the additional
evidence of his confession that the court justly ruled admissible. The account of the robbery at the Club given by accused 3 was
consistent with the accounts of the 2 witnesses mentioned above, as well as the interpretation of the video film by Constable Iyambo.
The evidence identifying accused 1, 2, 3, 4 and 5 as being present in the Club is overwhelming. I thus agree with the Court’s
finding regarding the presence of the accused persons above.
[29] Of the identity of the persons, there is no doubt that this case is not one of those cases where the Court has to tread with
care before acting on the evidence of identification lest a grave injustice be done by accepting the evidence of someone believable
but who turns out to be a mistaken witness: see in Contrast, R v T 1958 2SA 676 (A), R v Shekelele & Another 1953, SA 636.
[30] The question still remaining is whether all the accused acted together and in common purpose to commit the robbery. The states
case is overwhelmingly proved concerning Accused 1, 2, 3 and 4. No more needs be said.
[31] Accused 5. The case against him lies in the evidence of his presence at the Club for quite a while before he eventually left.
Further, there was evidence that Accused 5 closely associated with Accused 1, with whom he was playing pool, and was seen chatting
with Accused 2. Apart from this proved fact, his departure so close to the commencement of the assault and robbery casts a great
deal of suspicion about his presence. Could that departure have been the signal to the others to begin? Could it be that he was going
out to be a look out? All this evidence of conjecture sounds almost plausible. However the law makes it clear that suspicion alone
is never enough. For the suspicion to be turned into a sound basis for a conviction to be made, there has to be a cogent basis entitling
the Court to draw the inference as the only reasonable inference that the accused had indeed been part of the crime being committed,
with full knowledge.
[32] Counsel for accused no. 5 argued that before the accused could be convicted of the offence on Count 1, the Court had to be satisfied
beyond reasonable doubt that the accused was involved in the robbery and that each of the criteria for convicting on common purpose
which are set out in S v Mgedezi 1989 1 SA 687 are satisfied; (1) namely, presence and knowledge of the plan to commit the crime, (2) participation and associating
with the accused in the acts being done, (3) the intent to achieve the specified goal, or foresight of the consequences likely to
result but recklessness as to whether or not these consequences ensued.
[33] In light of the established evidence that accused 5 left before the crime was committed, and given that there is no proved fact
that he did anything thereafter following the commission of the crime, the question is, can it not reasonably be inferred from all
the circumstances that accused 5 was indeed part of the plan to commit robbery?
[34] In convicting accused 5 the Learned Regional Magistrate, acknowledged that the case of accused 5 must be looked at with special
care. The Court reasoned at page 467,
‘‘The Court cannot for one moment on the evidence, come to a conclusion that Accused no. 5’s presence at the Club Elago, where
he talked to the other co-accused and his presence at Furstenhoff is just by coincidence. In the absence of any explanation from
his side, as to what he was doing at Club Elago and what he was doing at Furstenhoff in the presence of the robbers at Club Elago,
and what he was doing in the taxi in the presence of the persons who were involved in the robbery Elago, he must also be convicted
of count 1 – that is the robbery at Club Elago’’.
[35] Circumstantial evidence. In evaluating the evidence the Court looked at the conduct of accused 5 both before the commission of
the offence and afterwards. Viewing that conduct in common sense, together with the evidence, it found that his presence on the separate
occasions, at the club and in the taxi could not be written off as a mere coincidence.
[36] The approach of the Court a quo is reasonable and sound given the circumstances of this particular case and accused’s role.
The Learned author of Principles of Evidence, Schwikkard and Van der Merwe 2nd Edition, at page 504, say
……."Circumstantial Evidence is not necessarily weaker than direct evidence. In some instances it may even be of more
value than direct evidence.": S v Reddy 1996 2 SACR 1 (A), S v Shabalala 1966 2 SA 297 (A) 299.
[37]
In S v Reddy, three South African businessman had been on a visit to India where they ordered artifacts
for use in religious worship. The artifacts were packed and shipped to Singapore, where the boxes were taken out of the Indian containers
and put into a fresh one in Singapore. Police in South Africa received information that the shipment contained mandrax tablets. When
the shipment arrived in Durban the Police opened the crates and found considerable quantities of mandrax. After extracting most,
Police placed a signal and resealed the container. They set up surveillance. Appellants collected part of the consignment, the police
followed and mounted their surveillance. When the signal went off, the Police raided the appellants but the search was premature.
The Police withdraw and apologized for misinformation.
[38] However the Police kept watch again. When the signal went off they moved in and the package with mandrax was still unopened.
On arrest, appellants denied complicity and knowledge of the presence of the mandrax tablets, but were convicted. The Court looked
at the fundamental issues before it and said, at page 8 (c):
‘‘In assessing circumstantial evidence one needs to be careful not to approach such evidence upon a piece meal basis and to subject
each
individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation
given by an Accused is true. The evidence needs to be considered in its totality’’.
.RTF of original document