---

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

JUDGMENT

Case no: CR 01/2014

DATE: 27 JANUARY 2014

NOT REPORTABLE

In the matter between:

THE STATE

And

KRISTIAN TUHAFENI NGHFINDAKA

High Court NLD Review Case Ref No.: CR 08/2014

Neutral citation: S v Nghifindaka (CR 01/2014) [2014] NAHCNLD 4 (24 January 2014)

Coram: DAMASEB JP and LIEBENBERG J

Delivered: 27 January 2014

Flynote: Criminal procedure – Review in terms of s 116 (3) of Act 51 1977 – Accused convicted in magistrate’s court and committed for sentence by regional court – Regional court magistrate not satisfied conviction in accordance with justice – Review court found the evidence adduced does not sustain the conviction.

Summary: Accused was convicted on a charge of stock theft and committed for sentence by the regional court in terms of s 116 (3) of the CPA. The regional court magistrate clearly not satisfied that the conviction is in accordance with justice sent the matter on review. On review found the trial court misdirected itself as regards the admissibility of warning statements received into evidence. In the light of all the evidence adduced the accused’s guilt was not proved beyond reasonable doubt. Conviction set aside.

ORDER

1. The conviction is set aside and substituted with a finding of not guilty.

2. The matter is remitted to the regional court magistrate who is directed to bring this order to the attention of the accused and to otherwise deal with the matter according to law.

REVIEW JUDGMENT – SECTION 116 (3) ACT 51 OF 1977

LIEBENBERG J (DAMASEB JP concurring):

[1] This matter came before me by way of a review in terms of s 116 (3) of the Criminal Procedure Act, 51 of 1977 emanating from a stock theft case heard by the magistrate for the district of Eenhana. After evidence was heard the accused was convicted and committed for sentence by the regional court. His co-accused (and companion) was however found not guilty and discharged.

[2] The regional magistrate, clearly not satisfied that the proceedings were in accordance with justice, recorded the reasons for his opinion and these, together with the record of the proceedings held in the magistrate’s court, were sent for review by a judge in chambers.

[3] These reasons are threefold: Firstly, the evidence adduced at the trial does not link the accused with the goats allegedly stolen from the complainant. Though the meat of three goats were found (seemingly buried) in a field belonging to the accused, these were not positively identified as being the complainant’s goats. Secondly, despite the accused’s early indication that he would challenge the admissibility of his warning statement, the court received same into evidence without informing the unrepresented accused of his right to challenge its admissibility. Thirdly, the court found the police officer responsible for recording warning statements of the accused (and co-accused) not credible and acquitted the second accused. However, the court relied on the same evidence to convict the accused on a charge of stock theft.

[4] The State called three witnesses whose evidence, in summary, amounts to the following: Complainant testified that after it was reported to him that some of his goats went missing, he set off in search for them the following morning. He did not testify as to the number of goats missing. He came upon footprints of a child apparently herding goats and started following these up to the field of a certain Mutilifa where he found four of his goats (alive). There seems to be no connection between this person and the accused. He decided to call in the assistance of some people (acting as a crime prevention group in the community) who were at a nearby cuca shop, and showed them the prints. Complainant said at some spot he stopped where he found blood and stomach contents. It is not clear whether this was before or after he involved the other people. Be that as it may, this aspect of his evidence suggests that something had been slaughtered at that spot. This evidence seems to suggest that one of the complainant’s goats was slaughtered at that place but this is inconsistent with allegations about three goats that were slaughtered at the accused’s homestead. From there the footprints went in the direction of the accused’s house where they met with the accused. They informed him about the missing goats and the footprints of a child they had been following up to his house but he denied having any knowledge about complainant’s goats. He, in their presence, enquired from his son whether he had brought home goats that did not belong to them (accused). They then sought permission to enter his house but he refused.

[5] There is no evidence on record that the complainant, having received the report about the missing goats, at some stage counted his goats to determine the number of goats missing. It would thus appear that the amount of seven goats initially found missing by the complainant is derived by counting the four goats found in the field and the meat of three carcasses subsequently found in the accused’s field. The accused was only charged with and convicted of theft of three goats. According to the complainant the only reason why the police arrested the accused was because of blood stains on his clothes. The accused’s explanation is that he had earlier slaughtered one of his own goats, explaining bloodstains on his clothes.

[6] The evidence of the second State witness confirms that the footprints they had followed were that of a small child and led to the accused’s house. The following day she and others returned to the accused’s house and asked his son about the meat of three goats. He took them to a spot in the accused’s field where he dug up the head of one goat. The witness said they also found the meat of three goats but did not say where exactly it was found. There is no evidence on record that the head of a goat and the meat of three goats found in the vicinity of the accused’s house was that of the complainant’s goats. That explains why, when asked in cross-examination whether there was any proof that the meat found was that of the accused, the witness was unable to answer.

[7] It seems clear from the evidence of the complainant and second State witness that, except for the meat of three goats found in a field belonging to the accused, there is no evidence which links him with the meat so found; neither has it been established that this was the head or the meat of goats belonging to the complainant.

[8] The last witness for the State was Sergeant Shihepo who recorded the warning statements of both accused and, according to him, what is reflected therein is what the accused persons narrated to him. He testified that he informed the accused persons of their rights which, inter alia, included the right to legal aid and the right to apply for bail. There is however nothing in either statement reflecting that these rights were indeed explained to the accused persons and to this end his evidence contradicts what has been recorded in the statement.

[9] It is trite that the entire process of bringing an accused person to trial, and the trial itself, must be tested against the standard of a fair trial as guaranteed in the Namibian Constitution.¹ In addition to informing the accused persons of their right to legal representation, it was the duty of Sergeant Shihepo to also inform the accused that they were entitled to apply for legal aid. Failure to convey this important information to the unrepresented accused is, in the circumstances of this case, likely to render any incriminating admission made by the accused inadmissible.²

[10] There is nothing on record showing that the accused persons were aware of their right to apply for legal aid and all that there is, is the testimony of Sergeant Shihepo that he explained to them their right to legal aid. He did not explain why that explanation does not appear in the warning statement, forming part of the rights explained to the accused prior to him making a statement. His evidence about him having informed the accused persons of their right to legal aid has the making of an afterthought. The moment the warning statements were admitted (by agreement) into evidence, the magistrate mero motu should have questioned its admissibility in the light of the accused persons being unrepresented. The onus was on the State to prove that all the requirements had been satisfied before the warning statements could be admitted as evidence, and in the absence of credible and reliable evidence justifying its admission, the warning statements in this case should not have been admitted.

[11] I pause here to remark that prosecutors, as officers of the court, play an important role during trial proceedings and have a duty to assist the court by bringing to its attention all facts (though detrimental to the State case) which are favourable to the accused. In the present instance the prosecutor should have pointed out to the magistrate that the warning statements he intends producing into evidence may not meet the requirements and that its admissibility should be determined separately (in a trial-within-a-trial) as it would appear ex facie the statements that the accused persons’ fundamental rights had been infringed. The accused persons were clearly unfamiliar with court procedure and the court should not have left it for the accused persons to raise an objection against the admissibility of their warning statements.

[12] That the court did not properly apply its mind to the admissibility of the warning statements is evident from the second accused’s statement which was admitted, even though she elected to be legally represented before giving a statement. It must however be said that the court in the end rejected the statement of the second accused for that very reason.

[13] In its assessment of the evidence given by Sergeant Shihepo the court was not satisfied that he was a credible witness. Notwithstanding, the court convicted the accused on the same evidence. In view of the magistrate having accepted the police officer’s evidence ‘in some degree’, the trial court should not have relied on this evidence for purposes of convicting the accused whilst at the same time rejecting same as far as it concerns the second accused. In the absence of corroborating evidence justifying this course, the court clearly misdirected itself.

[14] Though it would appear that the court found corroboration in evidence about footprints of a child leading up to the accused’s homestead and goat meat subsequently found hidden in the vicinity of his house, the sum of this evidence does not incriminate the accused. The court concluded that the evidence of all three State witnesses links the accused with the commission of the said crime and rejected the accused’s evidence. The accused denied any involvement and said the only reason why he offered to accompany the police was because they wanted to arrest his son. In view of the footprints being that of a child, I do not find his explanation farfetched, especially when bearing in mind that he denied any involvement from the onset. The evidence of the second accused about the manner in which their warning statements were obtained corroborates that of the accused to some extent and reflects that the accused persons were put under pressure to jointly admit having committed the crime.

[15] In the light of all the evidence adduced at the trial there is, in my view, a reasonable possibility that the accused’s evidence may be reasonably possibly true and that the trial court erred when it rejected same as false beyond reasonable doubt. The finding of the court a quo to the contrary cannot be allowed to stand.

[16] In the result, it is ordered:

.

1. The conviction is set aside and substituted with a finding of not guilty.

2. The matter is remitted to the regional court magistrate who is directed to bring this order to the attention of the accused and otherwise deal with the matter according to law.

JC LIEBENBERGJUDGE

DAMASEB

JUDGE-PRESIDENT

---