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CASE NO.: SA 08/2001
IN THE SUPREME COURT OF NAMIBIA
In the matter between:
ALBERTOS MONDAY ACCUSED
AND
THE STATE RESPONDENT
CORAM: Strydom, C.J.; O’Linn, A.J.A. et Chomba A.J.A.
HEARD ON: 9 October 2001
DELIVERED ON: 21/02/2002
APPEAL JUDGMENT
O’LINN, A.J.A.:
SECTION A:
INTRODUCTION:
The appellant was convicted in the High Court on 19th May 2000 on a charge of Rape, read with the provisions of section 94 of the Criminal Procedure Act, Act 51 of 1997. He was sentenced to twelve (12) years imprisonment.
The trial judge, Teek, JP, refused to grant leave to appeal to this Court. This Court however, granted leave to appeal but only against conviction.
Mr. Cohrssen appeared for the appellant before us, amicus curiae, and Ms Lategan appeared for the State.
For the purpose of convenience, the appellant will hereinafter be referred to as the accused and the respondent as The State. In view of the tender years of the victim, the said victim will hereinafter be referred to as Ms. L., her sister as L1. and her mother as Mrs. D.
The State contested the appeal. Before the hearing of appeal, the Chief Justice, after consultation with the other judges of appeal, gave the following notice to counsel through the medium of the Registrar of the Supreme Court:
“Should the allegations by the accused that he was not suffering from gonorrhea, not have been investigated and if so, what is the effect if it was not so investigated?”
This issue was raised mero motu by this Court because, when the alleged victim was examined by the medical practitioner, Dr. Linda Liebenberg after the complaint was lodged, she was found to suffer from gonorrhea. The accused, although available, was not examined for gonorrhea, but a sample of his blood was drawn to be examined for other purposes.
During the accused’s trial and in the course of his cross-examination of Dr. Liebenberg, the accused indicated that he did not suffer from gonorrhea and suggested to the Court and to Dr. Liebenberg that he should be examined to establish whether or not he suffered from gonorrhea. Dr. Liebenberg expressed the opinion that such an investigation would be futile at that stage and counsel and the Court did not take the matter further.
The accused conducted his own defence after Mr. Neves, the legal practitioner instructed to defend the accused by the Legal Aid Directorate, withdrew before plea and the Directorate refused to appoint another counsel.
The charge contained in the indictment was changed on the application of the prosecutor, Ms. Lategan, before the accused was requested to plead. The relevant part of the charge originally read:
“In that on or about May 1999 and at or near Katutura in the district of Windhoek the accused unlawfully and intentionally had sexual intercourse with Ms. L., a female person, under the age of consent, namely 8 years old.”
The time of the alleged offence was changed to read: “… From November 98 until and including May 1999…”.
In the State’s summary of substantial facts it was alleged:
“The accused, who is a family friend, had sexual intercourse with the complainant on three different occasions during May 1999 at his house in Katutura in the District of Windhoek.”
The particulars in this summary remained the same and was thus inconsistent with those contained in the indictment as amended.
SECTION B:
THE MAIN GROUNDS ON WHICH THE APPEAL WAS ARGUED:
THE ACCUSED DID NOT HAVE A FAIR TRIAL:
Counsel, Mr. Cohrssen, contended that:
The manner in which Mr. Neves withdrew from the defence constituted an irregularity in the proceedings.
The facts relating to this issue as it appears from the record are:
At the outset of the trial before plea, Mr. Neves made the following announcement:
“My Lord I have to inform the Court that at this stage I have to withdraw as legal practitioner of the accused and I will place the following on record. I have discussed the contents and the consequences of this matter with my client I did inform him of the possibility of a plea of guilty and I was suddenly faced with the response that I’m forcing him to plead guilty. Next issue that I was requested was to ask for a postponement so that one of the defence witnesses could be summonsed to be here. I informed my client that we do not need that witness at this stage, it is the State to conduct their case and when it is our turn we will then surely have enough time to have the witness here. Then the next thing I was requested My Lordship was to apply for bail of which I do not have instructions. In light of the above I humbly apologize to the Court for wasting its time but I cannot proceed in such a confusion of instructions and accusations. I did not force anybody to plead guilty, those are my submissions when consulting with a client and I have the evidence before me and it does not look good My Lord if I can put it in plain and simple English. Due to this My Lord I will inform Legal Aid of what happened and my reasons for withdrawing and I will leave it then in their hands to decide if they want to appoint another practitioner for Mr. Monday. As the Court pleases.”
The Court then put the position to the accused as follows:
“Now the lawyer want to withdraw because you are accusing him of unethical behaviour and are giving him conflicting instructions.”
The interpreter then conveyed the accused’s reaction to the question as follows:
“Mr. Monday is saying he received a lawyer but the lawyer cant force him to plead guilty because he didn’t do it. So that’s why he asks for cancellation.”
The Court then said:
“Are you saying the lawyer was forcing you to plead guilty or not?”
The accused replied, according to the interpreter:
“Since the lawyer said he should plead guilty because if not they are going to give him maybe 8 years or 15 years imprisonment.”
Thereafter, Ms. Lategan, for the State, expressed herself as follows:
“As the Court pleases Your Lordship. Well if Mr. Neves don’t see his way open to continue in this matter my only concern is with the children that has to testify and it appear that most likely if another representative from Legal aid is obtained for the accused it will go the way of a trial. Therefore I would want to suggest that Mr. Neves report back to the Legal Aid Board and see whether they can acquire another person for tomorrow because the matter has been set down for three days. I must also just inform the Court and Mr. Neves is also aware thereof that the J88 examination was performed by Dr. Liebenberg who is currently not in the country anymore and has moved to South Africa where she is busy with further studies. … I have spoken to her this morning. An arrangement is made, there is also other cases I understand from my colleagues where in which she would have to come and testify and arrangements have been made with her for the 18th and the 19th of May on which date she will come just to testify in several post-mortem and J88 examinations. So this matter would in any event not conclude this week with the State’s case but as I said because of the youthfulness of the complainants I also would beg of the Court that it is not postpone for a long period of time and that the children still testify about it when it’s fresh in their memories.”
The Court then wished to know from Mr. Neves whether there was a possibility for someone else to take over the defence by the next morning at 10h00. Mr. Neves responded:
“Your Lordship I will try my outmost best to inform Legal aid and to inform them of the seriousness of the matter and of the State’s request and that there is young children involved in this matter and ask them to try their utmost best to obtain a new legal representative for Mr. Monday. Your Lordship I just wish to place on record further that when Mr. Monday refers to 8 years imprisonment and 10 years imprisonment it was explained to him the two consequences of wasting the Court’s time when there is no case My Lord apparently on my views and the consequences of wasting and being unethical…”
The Court in conclusion excused Mr. Neves in the following terms:
“Mr. Neves you are excused you may withdraw from the case and please try to find a substitute in your place for tomorrow morning 10h00.”
The Court then adjourned. When the Court resumed the following morning at 10h00, Ms. Lategan made the following report to the Court:
“When I by this morning 09:45 haven’t heard anything from Legal Aid I phoned there and spoke with Mr. Windstaan who is employed with Legal Aid he then informed me that Dr. Mtopa who is apparently in charge of deciding who gets legal aid or not have decided after Mr. Neves conveyed to him the situation and what the reasons for his withdraw was that Legal Aid would not further provide legal counsel for the accused before Court. In the premises of that Your Lordship I again whish to stress as I already yesterday put on record that there is minor witnesses involved and the Court roll being full until November of this year, the State would argue and do submit that the accused can’t misuse the due processes of law and him having not been satisfied with the counsel that has been provided for him and Legal Aid now not having being granted to him again should continue on his own because on the other hand if not also being the interest of justice that this matter is again postponed for a lengthy period of time when a trial date is available due to the fact that the witnesses as I said is minor children and do forget the evidence as the time passes by and I shortly just wish to refer Your Lordship to a recent decision in this court by your Sister Gibson, J, State vs Hoveka delivered on the 8th of February 2000 where apparently it was also a matter where the accused was not satisfied with the counsel provided for him and then wanted another counsel where the Court gave the accused an hours time to get the counsel that he wanted then and whereafter, when he didn’t succeed in getting that counsel the Court ruled that the matter is continuing and the accused then has to appear on his own behalf. That is the State’s argument on this aspect Your Lordship.”
The accused was then asked by the Court:
“Yes, accused where is your counsel?”
He replied that he had no counsel but was willing to accept another counsel appointed by the Legal Aid Board. The Court then reacted:
“Legal Aid is not prepared to give you another counsel because you rejected the one they gave you”.
The accused then asked for bail in order “to continue with his employment so that he can find another lawyer who can continue with his case. It must be noted that the accused had been in detention for approximately 9 months before the date when the matter was brought to trial. According to the evidence, the accused was also employed before his arrest.
The request of the accused was rejected. The relevant part of the Court’s ruling read as follows:
“The accused now applies for a postponement and to be granted bail so that he could get an employment and be in a position to pay for legal services. Any further postponement is opposed by the Prosecution on the basis that not only are there witnesses to be called of tender years but also the complainant is of tender years at the time of the commission of the crime 8 years. And that it would not be in the interest of justice, the administration of justice if further postponement is granted, especially when regard is had to the fact that the accused had the benefit of the services of a legal representative which he did not make good use of. I’m therefore not prepared to grant the accused further postponement and the case should continue today and tomorrow. Yes, you may be seated.”
It is clear from the above-quoted proceedings that:
(i) Mr. Neves strongly advised the accused to plead guilty and that the accused strongly resisted that course.
If that is all that happened, no criticism could be levelled at either party. However, the legal representative’s advice that if the accused refused to plead guilty, he could be sentenced from 8 – 15 years imprisonment because he would be wasting the Court’s time, was a misrepresentation of the legal position, because even if he pleaded guilty, he could be sentenced to “8 – 15 years imprisonment”. Of course, the Court would take into consideration once an accused has been found guilty, that the accused by pleading “Not Guilty” and persisting in an obviously false defence, had not shown any remorse and would consequently be dealt with more harshly than an accused who had admitted his guilt and co-operated with the prosecution in bringing the matter to an expeditions conclusion. But the conviction on behalf of the legal representative that the accused has “no case”, does not justify him declining to defend the accused if the accused persisted in pleading “Not Guilty”. It is a trite rule of professional ethics that the legal practitioner, who is not the judge, is not entitled to prejudge the issue of guilt. In such a case he is bound to continue with the defence, even if the accused persists in denying guilt. Even where an accused admits guilt to the legal practitioner, but wishes to plead “Not Guilty”, the accused may be allowed to plead “Not Guilty”, but with the clear understanding that the legal representative would not call the accused as a witness to testify under oath and will not make factual assertions to state witnesses in cross-examination which is inconsistent with the accused’s admission of guilt to his legal representative.
In this case however, the latter course was not in issue because it is common cause that the accused had at all times in his instructions to Mr. Neves, claimed that he was innocent.
The approach of Mr. Neves in this regard was unprofessional and wrong.
(ii) The remarks in open Court by Mr. Neves to justify his withdrawal aggravate the wrongfulness of his conduct.
To tell the Court that he “has the evidence before him and it does not look good My Lord” and that “there is no case”, is not only completely unnecessary, but outrageous. What must the accused and the public think if the legal representative of the accused, appointed and paid by the State, portrays the accused as “guilty” even before the opportunity to plead to the charge.
Ms. Lategan has argued that such remarks would not necessarily influence the Court and that judges are trained to obliterate inadmissible material from their consideration. That may or may not be correct. Unfortunately, judges are also human, and some more human than others. Even if they do what Ms. Lategan contends, it would be difficult to remove such material altogether from your mental process. It may subjectively influence the best of judges.
But this is not the only problem. It is important that not only the accused, but the public, should have the perception that the proceedings are fair to the accused, as well as the victim. Mr. Neves was appointed by the Director of Legal Aid to defend the accused. It must be emphasized that a legal representative so appointed, is bound by the same rules of professional ethics as a legal representative appointed by an accused himself.
It must also be pointed out that the accused had not accused Mr. Neves of “unethical behaviour” as stated by the trial judge, but this was a description used by the judge for the behaviour complained of.
(iii) Mr. Neves also told the Court in justifying his withdrawal, that the “next issue” was the request by the accused to apply for a postponement so that one of the defence witnesses could be summoned to be here. “I informed my client that we do not need that witness at this stage, it is the State to conduct their case and when it is our turn we will then surely have enough time to have the witness here”.
Once again the attitude of Mr. Neves left much to be desired. If there were other defence witnesses, how would he be able to judge the veracity and usefulness of such witnesses, if they are not summoned to be available for consultation and calling as witnesses, if not subpoenaed to be present at or even before the trial. Mr. Neves would have been better able to judge whether or not his client had a case, if he arranged for them to be subpoenaed before the trial started. Furthermore, he would not have known what to put to the state witnesses in cross-examination, if the defence witness or witnesses were not subpoenaed in advance.
(iv) The next point mentioned by Mr. Neves was that the accused requested him to apply for bail but he did not want to do that because, as he said – “I did not have instructions”.
This is incomprehensible. Mr. Neves had, according to him, a request from his client to apply for bail. Surely this was his only relevant instruction.
(v) Mr. Neves further said: “I cannot proceed because of the confusion of instructions and accusations”.
The accused according to him told him that he was innocent, wanted to plead “Not Guilty”, requested his legal representative to subpoena a witness or witnesses before trial and to apply for bail.
If there was “confusion” herein, it was not the “instructions” given by the accused, but those in the mind of the legal representative. And if there were “confusion” in the “instructions” and “accusations” it must have been accusations and instructions not mentioned by Mr. Neves – because those he mentioned in Court were quite straight forward
In all the circumstances, it is not surprising that the accused lost confidence in the legal representative allotted to him.
What is surprising however, is that the learned trial judge appeared to have accepted the cogency of the arguments and statements by Mr. Neves, instead of accepting that the accused had just cause to refuse to follow the advice of Mr. Neves.
To add insult to injury, the trial judge, in refusing bail and/or a postponement, gave as the reason that the witnesses to be called by the State are of tender years and that it would not be in the interest of justice, the administration of justice, if further postponement is granted, but then added: “especially when regard is had to the fact that the accused had the benefit of the services of a legal representative which he did not make good use of.” (My emphasis added.)
In the circumstances herein set out, there was no justification for the latter ground of refusal by the learned trial judge.
The trial Court also erred in not taking appropriate steps to enable the accused to be legally represented.
Mr. Cohrssen contended in this regard:
“The right to legal representation of a person’s own choice is cornerstone of the right to a fair trial. Art. 12(1)(e) of the Namibian Constitution provides:
‘All persons shall be afforded adequate time and facilities for the preparation and presentation of their defence, before the commencement and during their trial, and shall be defended by a legal representative of their choice.’”
Mr. Cohrssen further contended that the Court’s failure to ensure compliance with the provisions of this Article read with sections 8(2) and 10(1) of the Legal Aid Act, amounted to a failure of justice in the circumstances of this case.
I agree with Mr. Cohrssen for the following reasons:
The interest of accused, the prosecution and the victim had to be balanced by the Court in fulfilling its function to ensure a fair trial.
In performing this balancing act, the following facts had to be kept in mind.
The accused was not responsible for the delay of almost nine (9) months in bringing the matter to trial. During these 9 months, the accused was in prison and as a result could not earn a living by working. Before his arrest and detention, he was, according to the evidence, in full-time employment and owned a house in Windhoek where he resided at all relevant times. His domicile and employment was known to the State.
A further postponement of 3 months, when the crucial state witness Dr. Liebenberg was available to testify, and which necessitated a postponement to May 2000 in any event, would not have prejudiced unduly, the two state witnesses of tender years, in view of the further fact that they had made written statements to the police, from which they could refresh their memory, with the assistance of the police and/or their mother. Such a postponement, particularly if accompanied by an order releasing the accused on bail, could have made it possible for the accused to obtain legal representation at his own expense.
A postponement to obtain legal representation at his own expense, or legal representation provided by the Legal Aid Board, was crucial to a fair trial in this case, because the accused was facing a very serious charge and the indictment as amended, covered a long period, without any specific dates on which the alleged three instances of rape allegedly occurred. A conviction would inevitably have resulted in a very long period of imprisonment.
The accused clearly was not schooled in the law. He would not be able to avail himself of the benefits and protection provided by section 93 of the Criminal Procedure Act 51 of 1977, if he could and wished to raise an alibi defence.
The trial Court could have and should have taken more effective steps, in my respectful view, to ensure that the Legal Aid Board and/or Legal Aid Director, provide the accused with another legal representative, in the place of Mr. Neves.
At the time of trial, section 8(2) of the Legal aid Act was still applicable which read:
“If an accused before the High Court is not legally represented and the Court is of the opinion that there is sufficient reason why the accused should be granted legal aid, the Court may issue a legal aid certificate.”
Section 10(1) provided:
“The Director –
(a) shall grant legal aid to any person in respect of whom a legal aid certificate has been issued under section 8(2).”
The discretion of the High Court Judge to issue the certificate amounts to a quasi-judicial discretion which had to be exercised in a reasonable manner and on reasonable grounds. That is also the position since article 18 of the Namibian Constitution became part of the Supreme Law of Namibia in 1990.
In the circumstances of this case, the trial judge had to consider this course and to exercise this discretion in accordance with section 8(2) of the Legal aid Act, read with Articles 12(1)(e) and 18 of the Namibian Constitution.
In the alternative to issuing a certificate, the trial judge could at least have ensured that the accused, who was in detention at all relevant times, had a proper opportunity to put his case to the Legal Aid Board or the Director of Legal Aid. This is so because Mr. Neves had told the Court that he would now explain to the Director of Legal Aid, the reasons for his withdrawal. That Mr. Neves version above was put before the Legal Aid Board, is quite clear from the report of Ms. Lategan to Court and in Court the following morning when she confirmed that further legal aid was refused by Dr. Mtopa, on behalf of the Legal Aid Directorate, after Mr. Neves had “conveyed to him the reasons for his withdrawal”. No wonder, that further legal aid was refused in the absence of an explanation by or on behalf of the accused.
The learned trial judge must have anticipated that in the absence of the accused, or the Court record or a favourable recommendation by the trial judge himself, only a biased picture would be placed before the Legal Aid Directorate and that the result would be a foregone conclusion. The learned trial judge apparently did not take such steps because in his own words in refusing bail and postponement, he stated that the accused had not “made good use” of the counsel provided.
In my respectful view, the learned trial judge had failed to exercise a proper discretion in accordance with section 8(2) of the Legal Aid Act, read with Articles 12(1)(e) and 18 of the Namibian Constitution, alternatively had failed to take the necessary steps to ensure that the accused’s case is placed fairly before the Legal Aid Directorate.
The Legal Aid Directorate on the other hand had failed to take the necessary steps to ensure that the accused’s case for Legal Aid was properly and fairly considered in accordance with Article 12(1)(e) read with Article 18 of the Namibian Constitution.
It failed to consider that the reason for granting legal aid in the first place, still remained, notwithstanding the withdrawal of Mr. Neves.
It failed to give the accused an opportunity to put his side of the case, orally or in writing, before it reversed its previous decision to provide legal aid.
In my respectful view, both the Court a quo and the Legal Aid Directorate had failed to comply with the letter and the spirit of Articles 12(1)(e) and 18 of the Namibian Constitution read with section 8(2) and 10(1) of the Legal Aid Act as it stood at the time of the decisions aforesaid.
1.3 The restriction of and interference by the Court in the cross-examination by the accused of Mrs. D., the mother of the victim.
Mr. Cohrssen contended in this regard:
“In this matter the accused was effectively restricted from cross-examining the person whom he alleges falsely caused the charges to be laid against him.”
It is trite law that a Court should do everything reasonably possible to assist an accused who is not defended by a legal practitioner, to put his case before Court by calling witnesses and cross-examining the state witnesses.
Mr. Cohrssen also correctly points out:
“The clumsy attempts of an undefended accused in a criminal trial to cross-examine a witness should not be met with the placing of obstacles in his way, but should rather be guided by the presiding officer. Assisting an accused in these circumstances in any event assist the Court in making its findings of fact at the end of the day.”1
Mr. Cohrssen further argues:
“Too much is often expected of undefended layman defending themselves in criminal trials. Too much is also frequently read into their failure to cross-examine, or to cross-examine thoroughly. The importance of this factor can easily be exaggerated.”2
Mr. Cohrssen referred to a number of passages where, according to him the trial judge “severely curtailed” the cross-examination by the accused.
The first passage related to a visit by the said Mrs. D. to his house and the accused’s questions in that regard. The accused asked: “If she can tell the Court the truth. Can she recall when she told me that her belongings are outside, outside the house…”. Before the accused could finish the question, the trial judge intervened by saying: “Yes, those questions have nothing to do with your case.”. The interpreter then said: “He is saying that is where she started to send her kids to his house.”. The Court then once again said: “That has nothing to do with his case.”.3
I must note here before I proceed that the Court did not ask the accused to give a plea explanation in terms of section 115 of the Criminal Procedure Act after he had pleaded “Not Guilty”.
The Court also did not ask the accused what was the relevance of his question. How the Court concluded summarily that the questions “had nothing to do with his case” is not apparent from the record. It must also be pointed out that the accused had already put it to the victim, Ms. L. that he had a relationship with her mother.4
The accused may have put this question to get more particulars as to the precise date or dates when the witness or her children visited the accused. He may also have put the question as introductory to his case that Mrs. D. came to stay with him and had a sexual relationship with him. This is indicated by him asking her whether she could recall “when she told him that her belongings were outside, outside his house.” Be that as it may, the learned presiding judge was patently wrong in disallowing the question and in doing so on the ground that it had nothing to do with the accused’s case.
The next example relied on by Mr. Cohrssen relates to an occasion when the accused attempted to question Mrs. D. about the time and place of her alleged observation that the victim had a discharge on her panties. The accused asked: “Now on the second time when you say the discharge, on which day was it? The witness answered the question but before the accused could proceed with his further cross-examination, the Court once more intervened by saying: “Now let me assist you a bit. The witness testified that on a certain night you arrived there with the complainant, crying, what do you say about that?”5
The accused thereupon left the issue about which he was cross-examining, namely the occasions when a discharge was seen, and tried to switch to what he thought the presiding judge was referring to, namely the allegation by Mrs. D. that the accused had brought the child to her one night – crying.
When the accused tried to cross-examine on the latter allegation, the Court again intervened by saying: “No, no I won’t allow those kind of questions.” The Court then put the following question to the accused: “Are you saying that you arrived there with the complainant crying at the place or the house where the witness was or not?” The accused replied to the question by the judge: “I don’t know anything about it.”
The Court then put it to the witness that the accused says that he knew nothing about such an event. Mrs. D., in reply, reiterated her allegation.6
It seems that the Court managed for the time being in changing the direction of the accused’s cross-examination. Why the Trial Court proceeded in this manner, is unclear to this Court. What is certain however, is that it must have been confusing to the accused and that the intervention was unjustified.
When the accused continued asking questions about the alleged occasion, all or most of which was not a direct translation by the interpreter in the first person and consequently sometimes difficult to follow for that reason, the judge again intervened and said: “No, no, any other question.” The judge did not explain to the accused what was wrong with his question.
The accused at one stage returned, or attempted to return to the issue of Mrs. D’s December visit to his house and whether he escorted her to any address and if so, which address. In the course of trying to get more clarity from her in this regard, the accused asked: “Now did I take you, did I escort you at this Nama 833 or …” the Court again intervened and ruled: “No, that question has nothing to do with this case.”7
The learned judge did not ask the accused about the relevance of the question or explain to him why the question had nothing to do with the case. The Court, immediately after ruling that accused’s question had nothing to do with his case, continued with a questioning of the witness during which he elicited evidence about the explanation of the victim when confronted by the witness. This examination by the judge proceeded as follows, whilst the accused was reduced to a mere spectator:
“Q: You testified that the complainant made a report to you after you confronted her with this discharge. What did she tell you?
A: When I asked her where she was coming from she told me that she was coming from Uncle Albertos’ house and when I asked her why her panty is looking like that, where is the discharge coming from and then she told me that uncle Albertos did it to her.
Q: Did she tell you how many times or on how many different occasions that happened with her between her and the accused?
A: Yes, she did.
Q: What did she say? How many times?
A: She said for the first time it was in the sitting room that Uncle Albertos came out an started touching her and kissing her and stuff like this and that where …(intervention).
Q: Yes. No what I just want to know. I don’t want to know details. Did she tell you how many times the accused had sexual intercourse with her or not?
A: She said three times.”
The judge now turned to the accused and put the following question to him: “Yes what do you have to say about that, that the complainant made a report to the witness upon the witness seeing the discharge on her panties that you had sexual intercourse with the complainant, thrice? Are you saying that that never happened? It is not true. The complainant lied to her?” The accused answered: “Yes.”
Then the judge again turned to the witness and put the following question to her: “Yes, what do you have to say? The accused says what the complainant told you was not true. She was making up those stories against him”. The witness then confirmed that her testimony is true and came with the following new allegation: “My Lord, if he is saying that the child is lying then I am asking, the time that we were sitting in the vehicle why did he then say why didn’t I come to him first so that we could have talked about the case so that he could pay me N$200 every month?”
The Court then put this new allegation to the accused, but added words to the allegations which were not contained in the allegation made by the witness. The question as formulated by the Court was: “Yes – the witness also testified that while you were seated in the police vehicle in the presence of the complainant, you asked the witness why she reported the matter to the police and why she didn’t come to you to discuss the issue with you because you were going to lose your house and your employment and your children will suffer and you would give her N$200,00 a month. What do you say about that? Did that happen or not?” (My emphasis added to distinguish the words added by the judge to the allegations by the witness.)
The accused replied: “It didn’t.”
Thereupon the Court again put the accused’s denial to the witness and the witness confirmed her previous allegation.
And to crown it all – the Court now turned to the accused and asked: “Is that all? Do you have any other questions?” But as soon as the accused asked his first further question he was again silenced. This part appears as follows in the record:
Q: “When you three arrived at the Women and Child Abuse Centre, who got out of the car first?”
COURT: “No, no, no. I wont allow this kind of question. What has that got to do with the evidence? You denied that you told her, you asked her those questions. Any other question you have?”
The accused then tried to proceed on another point. He asked: “As the complainant told you that I raped her now should the discharge b e blood or should it be some whitish or yellowish substance? The Court once more intervened: “No, the witness is not a doctor, you can put that question to a doctor.”
It must be noted here that the evidence elicited by the judge about the report of the “complainant”, was deliberately prevented by the prosecutor, Ms. Lategan, when she examined the witness in chief. Ms. Lategan then said: “The question was just, did Ms. L. relate a story to her? I don’t want to know what was said.”8
The obvious reason why Ms. Lategan did not want the witness to testify about the contents of the report was that the report amounted to inadmissible hearsay in the light thereof that it did not comply with the requirements of a first report because it was elicited by the witness Mrs. D. by threat. The evidence in chief of Mrs. D. was that after several questions to the victim Ms. L. and the denial by the victim that anything untoward had happened, Mrs. D. told her: “Tell me the truth. Where are you coming from? Tell me the truth. Where are you coming from? Otherwise I will beat you.”
The Court thus not only elicited new evidence from the witness prejudicial to the accused, during the attempted cross-examination by the accused, but evidence which was inadmissible hearsay against him.9
This is an irregularity distinct from the irregular and prejudicial intervention by the judge and even turning the accused’s opportunity to cross-examine the state witnesses into cross-examination by the Court of the accused.
(v) The accused attempted another angle with what appears to be a completely relevant question. He asked the witness Mrs. D.: “Did you that first week until the 14th, the witness mentioned that she saw the first discharge on the Tuesday, now why did she, exactly from that stage, why didn’t you exactly go to the police to report this?” The judge then intervened and said: “Any other question?”
The accused tried several other questions, some about the dates on which the witness sent the children to his house and indicated that without her help, he was unable to recognize the days. He probably required the dates to assist him in proving his defence that he was absent at the time.
The learned judge motivated his refusal to allow such question by saying: ”That’s a matter for argument. You have stated your statement to her that you did not have sexual intercourse with the complainant. So the dates have become irrelevant.”
The Court’s refusal was based on a wrong premise. Surely even if an accused denies that he had raped a person, it is nevertheless justified for the defence to require dates of the alleged incidents of rape to enable the defence to disprove the allegations of the State, particularly if the defence is an alibi or an alibi in part.
The accused finally tried to explain: He said: “I want to know this because I have been accused. That is why I want to know whether the mother knows.” The Court then commented: “Yes neither the complainant nor the mother can help us with specific dates. Any other question? If you have no more questions you may be seated.”
The Court did not allow the witness to answer. She may have been able to say whether or not she did not remember any specific dates. But even if she did not know any specific date, she may have been able to give the month or the week or whether it was daytime or nighttime.
(vi) I have quoted the proceedings relating to the accused’s attempted cross-examination of this witness extensively.
It is obvious that the accused’s attempts to cross-examine were clumsy and inept. But instead of assisting him the Court frustrated his every endeavour.
(vii) The position is aggravated by the fact that the Court in its judgment held it against the accused that he had failed to put to Mrs. D. in cross-examination the defence that he had an affair with the mother of the victim but had chased her from his house because she drank excessively and that she concocted the case against him in revenge.
When the accused began to put questions to her about her arrival at his house with her belongings outside his house, he was stopped.
In any event, this is a clear instance where the Court should have recalled the witness to give the accused the opportunity to put this part of his defence to her. Alternatively, the Court itself should have, after the recall of the witness, put to the witness this part of the defence of the accused.
The Court did not only have the power to act in such manner, but in the circumstances of this case, it had the duty to act in terms of section 167 of the Criminal Procedure Act 51 of 1977.
This is so inter alia because unless this course was taken, the Court would not have been justified to reject the evidence of the accused in this regard merely on the ground that he had failed to put it to the defence witness in cross-examination. On the other hand, if the Court accepted the uncontradicted evidence of the accused in this regard, because it was uncontradicted, that would unduly have prejudiced the state case and the interests of the victim.
Consequently, the only way for the Court to ensure that justice was done in this case, was to make use of section 167 of the Criminal Procedure Act 51 of 1977. This it had failed to do.
The power and duty to act under section 167 and 186 have been referred to and explained in many decisions of the High Court and Supreme Court but it seems that some judges of the High Court still ignore these provisions and decisions or for some other reason, fail to implement it.10
This is a regrettable situation and is not in the interests of justice.
In the instant case, the failure by the Court to recall the witness and to allow the accused a further opportunity to put this allegation to her or if necessary, to put the allegation itself, amounts to a misdirection, if not an irregularity, particularly in view thereof that the Court used the failure of the accused to put the allegation to the witness as one of the reasons for rejecting the accused’s defence.
The manner in which the Court interfered with the cross-examination by the accused of the witness and disallowed several of his questions and even elicited inadmissible hearsay evidence against him, amounts to a further irregularity in the procedure, which clearly prejudiced the accused in his defence and so undermined his fundamental right to a fair trial.
The failure of the state, the investigating police officers, the prosecution to have the accused examined to establish whether or not he was suffering from gonorrhea and the failure of the trial court to consider and examine and/or investigate the issue or having it considered examined and/or investigated
This issue, as explained in the Introduction, supra, was raised mero motu by the Court. It arose in the following manner in the Court a quo: The State witness, Dr. Linda Liebenberg, testified that the alleged victim, Ms. L., was examined by her on the 16th May. She testified: “There were no extra-genital injuries but the hymen was torn, thick, red and inflamed. The tears did not appear completely fresh but due to the inflammation it was difficult to state or decide on a time that the tears had been sustained. Then I did not measure the extent of the hymen because the examination was too painful. The fourchette, that is the posterior aspect of the vaginal opening was thin and red, also indicating infection and inflammation. The perineum, that is the area between the vagina and the anus, showed skin excoriation as one sees with a chronic vaginal discharge. Then there was discharge from the vagina, namely thick yellow pus. No haemorrhage seen. The examination was painful. … At the time the findings I thought to be consistent with the full penetration causing the hymen to tear all round and there was definite evidence of infection like gonorrhea.”
The clinical evidence to substantiate the finding relating to gonorrhea according to her was: “This very red inflamed appearance of the genitalia and the thick yellow pussy discharge. The various sexually transmitted diseases have a relatively specific clinical signs and this is most consistent with gonorrhea.” Doctor Liebenberg further confirmed that gonorrhea is a sexually transmitted disease that could not be transmitted in any other way than by a sexual act for example by a penis and not by means of the mouth or fingers or skin contact. Dr. Liebenberg did not say that gonorrhea could only be transmitted by full penetration during intercourse. Whether or not it could be transmitted by a sexual act not amounting to full penetration and intercourse, was not canvassed and remains an open question. The gonorrhea of the victim, consequently indicates no more than a sexual act, with a person having gonorrhea. In further questions, Dr. Liebenberg explained: “The transfer of this disease is by genitalia contacting.”
Smears were also taken from the victim as well as blood samples from both the victim and the accused. The blood samples showed that Ms. L. and the accused belonged to different blood groups. No semen or spermatozoa was detected by the Forensic Laboratory to whom the vaginal smears and sanitary pad of the girl was sent for analysis.
Apart from the blood sample, no further examination was done to establish whether or not the accused was suffering from gonorrhea or any other sexually transmitted disease, notwithstanding the fact that he was available and apparently cooperated with the police and medical practitioner.
It is clear from the aforesaid evidence that it was impossible to determine, not even approximately, when the hymen was torn, when the intercourse, causing the tear, took place; whether intercourse took place on diverse occasions, and if so, on which of the aforesaid occasions and when gonorrheal infection took place. It seems further clear that no chemical tests or other tests were done to establish beyond doubt from what sexual disease Ms. L. was suffering, although the probability was that she was suffering from gonorrhea. On the assumption that Ms. L. was indeed suffering from gonorrhea, it follows not only that someone suffering from gonorrhea must have transmitted the disease to Ms. L., but that once she had contracted the disease, she in turn could transmit it to anyone with whom she had sexual intercourse or with whom she had committed a sexual act as described above.
At the outset of Dr. Liebenberg’s cross-examination by the accused, the intelligible part of his first question was: “… So, it means, can a child still walk properly if it is raped and with this evidence by the doctor. Is it possible?” Before Dr. Liebenberg could answer, the learned presiding judge said: “I don’t think the Dr. is in a position to answer that.” Then the judge apparently tried to improve on the accused’s question and said: “Doctor, when the complainant, I think what the accused want to know is, when the complainant was brought to you on the 16th May 1999, yes, what was the information given to you? When was she actually molested or assaulted?” Dr. Liebenberg replied: “What I had written there is that the alleged incident would have been around two weeks before my examination. No specific date was given. The mother was doing most of the talking. The child just agreed. So it was difficult to establish precisely what, when, where, how etcetera but two weeks was more or less the working information.” It must be pointed out that this “working information” was of course inadmissible hearsay evidence.
The accused further put it to Dr. Liebenberg: “So, I was accused that I raped the complainant so as it is stated that no spermatozoa was found in the complainant’s vagina so how is it possible that I am the one who have given this gonorrhea to the complainant?” Dr. Liebenberg replied: “… There are no scientific evidence linking him with the tests that was done…”.
Then the following question and answer followed:
“Q: As I was not having any intention of raping the complainant, is it possible for the doctor to examine me also so that they can maybe find out whether I was having this gonorrhea which has been found on the complainant?
A: My Lord, maybe just to clear up matters I could just say men are capable of carrying gonorrhea without having symptoms. They can be asymptomatic carriers although they might have gone through a phase of burning discharge or burning when urinating. I am not in a position to examine this accused and since the lapse of time is a year it would be senseless.”
Thereafter the accused commented: “So, as the doctor say she can’t examine me, I have nothing more to say.” The Court commented: “Yes, thank you, you may be seated.”
Notwithstanding the many questions the learned presiding judge asked the State witness Mrs. D. during the purported cross-examination by the accused, no further questions were asked by him on this occasion and the issue was ignored by the Court in its judgment.
In my respectful view, it was necessary in the interests of justice not to have accepted the mere say so of Dr. Liebenberg, without at least questions for clarification to enable the Court to decide what course it should take on the important issue raised by the accused. It was an important issue because if the accused was found to have gonorrhea at the time of the examination of the alleged victim, that would have constituted strong circumstantial evidence corroborating the State’s case. But if not, it would have corroborated the accused’s denial to the effect that he never had intercourse with the victim.
If the Court allowed the accused to be examined at the time when Dr. Liebenberg gave evidence nine (9) months later, the result may still have been a fact, or factor in the form of circumstantial evidence, corroborating the one or other version, although obviously at that late stage, it would carry less weight.
The fact that the examination was not done, on any of these occasions, was not the fault of the accused. Once it was found that the alleged victim Ms. L. was probably suffering from gonorrhea, it was obvious that an examination of the accused to establish whether or not he was suffering from gonorrhea, was the obvious course for the prosecution, consisting of the police and prosecutors, to take. They, and Dr. Liebenberg, had the power to do so in terms of section 37(1)(c) of the Criminal Procedure Act. The Court furthermore had the power to order such an examination in terms of section 37(3) of the said Act.
The purpose of these provisions is quite clearly not to aid or prejudice one or other of the parties, but to assist in the search for the truth and so ensure that justice is done.
It is quite clear that the accused did not at the time object to the taking of his blood. There is no reason to believe that he would have objected to have his body examined in accordance with section 37 to establish whether or not it shows any condition or appearance – in this case whether it showed that he was suffering from gonorrhea or not.
During the trial, the cross-examination of Dr. Liebenberg by the accused, amounted to a clear indication that he was inviting such an examination. But even if the accused objected to such an examination at any stage, he would have had no leg to stand on.
So all that the investigating police officer had to do was to request Dr. Liebenberg to do the examination. Dr. Liebenberg on the other hand, being an experienced medical practitioner employed by the State, could and should even have suggested or initiated it once she found that the victim was suffering from gonorrhea. The accused could not have been expected to initiate such an examination, because he obviously had no knowledge of the law and was in detention at all relevant times after the complaint was laid. He was probably unaware of the doctor’s findings regarding gonorrhea until the trial.
Mr. Cohrssen referred the Court to “The Forensic ABC in Medical Practice, a Practical Guide” by T.G. Schwär, J.A. Olivier and J.D. Laubser where it is stated at p. 389:
“The accused or suspect in a rape case may be brought to a medical practitioner by the investigating police officer, for examination. The latter should hand over a formal written request to the medical practitioner – the completed SAP 308(A) or a request with similar particulars. This includes written confirmation that the accused or suspect has been formally arrested. The medical practitioner can then proceed with his examination without the consent of the accused or suspect, but he must always attempt to obtain the full cooperation of the accused or suspect.”
Amongst the guidelines under the heading “Examination of the genitalia”, one of the specific guidelines is: “Look specifically for the presence or absence of sexually transmitted diseases”. Such an examination has become even more important since an accused person may transmit a deadly disease such as HIV. to a victim and such fact would be an aggravating factor in considering sentence.
To return now to the explanations given by Dr. Liebenberg in reply to the accused’s question whether she could examine him whether “he was having gonorrhea” or whether he was “still having gonorrhea”.
Explanation (i): “I could say that men are capable or carrying gonorrhea without having symptoms. They can be asymptomatic carriers although they might have gone through a phase of symptoms of burning, discharge o burning when urinating.”
Comment: Even if taken at face value, Dr. Liebenberg’s phrases “are capable of” does not say that a diagnosis that the person has gonorrhea will not be possible when a proper examination, including blood tests, are done. The phrase also does not say or even imply that symptoms will generally not be discernable externally. The words they “can be asymptomatic carriers” certainly does not mean that they all are asymptomatic carriers. Her qualification that in those cases where men are “asymptomatic carriers, they might have gone through a phase of some symptoms of burning, discharge, or burning when urinating”, makes that part of her statement very confusing because the “discharge” at least would be a symptom visible in an external examination.
According to Dr. Liebenberg, gonorrhea is a very “treatable disease” but if untreated, “it would have very serious consequences in a child especially because of anatomical … reasons. This infection can travel upwards and cause fatal peritonitis. If not that severe it can still cause permanent sterility due to the infection of the internal genitalia, the uterus and fallopian tubes. It can lead to various types of systemic disease, arthritis, uvulitis, cystitis it can be a very severe prolonged illness”.
Dr Liebenberg also confirmed that she gave Ms. L. the standard treatment which not only treated “the gonorrhea, but also the other sexually transmitted diseases that she might have been at risk of”.
Although again Dr. Liebenberg did not testify how gonorrhea would normally affect the male person and was not asked about this important issue, it must follow as a matter of common sense and general knowledge, that if gonorrhea contracted by a male person is not treated, it could also have grave consequences for such male. In such cases, symptoms of such diseases, would probably also be discernible.
Without examination of such male person, his state of illness will not be discernable. It is consequently nonsensical not to examine a male person, on the ground that he may be “asymptomatic”.
Explanation (ii): “I am not in a position to examine this accused and since lapse of time is a year, it would be senseless.”
Comment: Dr. Liebenberg does not say that she “is not in a position to examine the accused” because of the lapse of time”. There are consequently two distinct parts of her statement.
The first part – “I am not in a position to examine the accused” is not explained and is confusing. Certainly she was entitled to make such examination after examining the alleged victim on 16th May 1999, provided she was requested to do so by the investigating police officer in accordance with section 37(1)(c) read with section 37(2)(a). When she testified, she could still have conducted such an examination in terms of the same sections or alternatively, in accordance with a Court order issued in terms of section 37(3)(a).
Again, no one can say that there would be or would not be symptoms. As pointed out before, the gonorrhea may in the meantime have led to other diseases, that would probably be identifiable on a proper examination.
Dr. Liebenberg’s statement that it would be senseless at that stage to examine because of the lapse of time, should, like her other statements above-quoted, have been further examined or elucidated by questions from the Court, if the State advocate left the matter without clarification.
This is an instance where the Court had to decide whether or not an examination would be valuable or valueless, not the medical practitioner. Particularly whether or not an examination would give certainty about a relevant fact constituting circumstantial evidence, is the function of the Court.
I must also point out that the State advocate or other prosecutor, must always regard the establishment of the truth its main objective and not only to ensure that the accused is convicted and sentenced. When an accused is not represented by a legal representative, there is a greater responsibility on the prosecution, as well as the Court, to ensure that the accused is not prejudiced by the fact that he/she has no legal representation. This duty extends to the disclosure of an important fact or factor known to the State which is consistent with an accused’s innocence. The Court shall in such cases, use its powers to facilitate the discovery or disclosure of such fact or factor.
Ms. Lategan did not at the trial put any questions to Dr. Liebenberg to clear up some of her ambiguous statements referred to above. Ms. Lategan’s written submissions on appeal as contained in her heads of argument is introduced by the following words: “In respect of the accused’s allegation that he was not suffering from gonorrhea…”. The State therefore clearly concedes that the accused had alleged that he was not suffering from gonorrhea.
Ms. Lategan referred to Dr. Liebenberg’s evidence that “men are capable of having gonorrhea without having symptoms” did not say why that, even if a fact, was justification for not examining the accused.
She continued: “And more importantly since the lapse of time is a year it would be senseless to examine the accused… furthermore as the complainant could not give dates in the respect of the incidents, had the accused tested positive for gonorrhea at the time of his arrest, it could not be ruled out that he had contracted it through sexual contact with another person, similarly had the accused tested negative, the possibility could not be ruled out that he had received treatment since his last contact with the complainant.”
Surely, the possibility of such explanations, does not mean that a finding that the accused was or was not suffering from gonorrhea, would not be a factor of considerable weight corroborating either the state case or the defence case. So e.g. if at the time the accused showed no symptoms of gonorrhea and/or was diagnosed as not having gonorrhea, the State’s ability to prove its case beyond reasonable doubt would obviously have been severely weakened.
That, consequently as I have shown supra, would also have applied if at the trial, 12 months later, the accused on examination was shown to have no symptoms whatever of gonorrhea or a disease caused by gonorrhea. What is important and completely ignored by Dr. Liebenberg, Ms. Lategan and the Court, was the fact that the accused was apparently in detention in the Windhoek Prison for the whole of the 12 months from the time that the complaint was lodged to the time when Dr. Liebenberg testified. He was thus under State control during this whole period.
It is furthermore a notorious fact amongst knowledgeable people, that prisoners cannot receive medical treatment in prison without consent of the prison authorities and without some records being kept and available. If the accused therefore had gonorrhea when he was first detained and he did not receive proper treatment during this 12 months period since then, he would probably have been in a very serious diseased state when he raised the issue in Court of being examined for gonorrhea and asserted that he did not have and never had gonorrhea. On the other hand, if he, on examination during his trial, was found not to have gonorrhea or any disease arising from or caused by gonorrhea, it would have been an easy matter to establish whether he nevertheless had gonorrhea whilst in prison and/or whether he had received treatment for such condition which could explain why he had no gonorrhea at the time of trial.
In my respectful view the trial Court erred in the following respects:
(a) Its failure to put questions to Dr. Liebenberg to clear up the ambiguities in her evidence on this aspect.
(b) Its failure not to allow or order a proper medical examination of the accused in May 2000 during the trial after the accused had pertinently raised the issue.
Its failure to consider and give weight to the failure of the investigating police officers and/or the prosecution in arranging for a thorough medical examination of the accused after it was established that the victim suffered or probably suffered from gonorrhea.
As pointed out supra, the Court had the power to act in terms of sections 167 and 37(3), read with section 37(1)(a) and Art. 12(1)(e) of the Namibian Constitution. In the circumstances of this case the Court had a duty to do so.11
This failure constituted an irregularity in the trial. The irregularity prejudiced the accused because his assertion in Court that he did not suffer from gonorrhea at the time of trial and also did not suffer from the disease at the time when he was first detained 12 months earlier was not considered and assessed as a factor supporting his denial of guilt and detracting from the State case against him.
The only manner in which this prejudice could have been avoided by the Court, was if the Court had accepted the accused’s above-stated assertion as an important factor detracting from the State case and supporting his plea of “Not Guilty”. This, the Court also failed to do.
It is also necessary to emphasize here that even before the Namibian Constitution became the Supreme Law of Namibia in 1990, and Art. 12 became part of this Supreme Law, the basic and fundamental principles of a fair trial were laid down in the authoritative Court decisions in South Africa and Namibia. These fundamental principles included the requirements and principles in regard to the investigation of the crime or offence preceding the actual trial.
In the Namibian decision of State v Burger and Van der Merwe, a decision by Berker, J.P., as he then was, who became Namibia’s first Chief Justice in 1990, the irregularities in question were irregularities in respect of the investigation of the case.12 He referred to these irregularities as follows:
“Basically it means that the whole investigation was so interwoven with irregularities, many of which were not of much importance. … It is however, the cumulative effect of these irregularities which the Court must, in my view, consider in order to come to a conclusion whether it is of such a nature that justice was not in fact done … After much serious consideration I however, came to the conclusion that in the specific circumstances of this case, there were so many irregularities, that justice, in the sense as it is explained in the cases referred to, will not be accomplished if the accused are found guilty.”
(My free translation from the Afrikaans.)
the decisions referred to by the learned judge was inter alia the decision of the South African Appellate Division in S v Xaba13, where Botha, J.A. said:
“Generally speaking, an irregularity or illegality in the proceedings at a criminal trial occurs whenever there is a departure from those formalities, rules and principles of procedure with which the law requires such a trial to be initiated or conducted (See R. v Thielke 1918 AD 373 at 376; S v Mofokeng 1962(3) SA 551(A) at 557G). The basic concept underlying s 317(1) is that an accused must be fairly tried (see S v Alexander and Others (1) 1965(2) SA 796(A) at 809C – D; and cf S v Mushimba and Others 1977(2) SA 829(A) at 844H).”
In the Mushimba case, which originated in Namibia, the irregularity referred to had its beginning in the investigation by the Security Police but which was continued into the trial itself. The accused Mushimba, had been convicted in the High Court of SWA on charges of contravening the Terrorism Act and sentenced to death.
The decision on appeal was in regard to a special entry by a judge a quo formulated as follows:
“Whether in connection with or during the proceedings there were irregular and/or illegal departures from and infringements of the formalities, rules and procedures which the law requires to be observed for a fair trial, and which resulted in a failure of justice.”
It appeared from the evidence, which was tendered in support of the application for the special entry, that one Mrs. E, a member of the staff of the firm of attorneys who defended the accuseds at the trial, had given copies of statements by the accuseds and defence witnesses and other confidential and privileged documents to the Security Branch of the Police whilst the investigating officer in charge of the case was a member of the Security Police. Thereafter the statements and documents were given to the investigating officer who gave instructions to the State counsel. The State counsel was however, unaware of these irregularities which had occurred.
In an appeal on the special entry it was contended on behalf of the State that no irregularity had taken place, that if an irregularity had taken place, it did not affect the proceedings and that, in any event, the irregularity was not of such a nature that a failure of justice had occurred.
.RTF of original document