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HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKAT

APPEAL JUDGMENT

Case No.: CA 02/2016

DATE: 08 AUGUST 2016

In the matter between:

LAMEK LIKIUS SHONENA...........................................................................................APPELLANT

And

THE STATE....................................................................................................................RESPONDENT

Neutral citation: Shonena v The State (CA 02-2016) [2016] NAHCNLD 67 (5 August 2016)

Coram: JANUARY, J TOMMASI J (CONCURRING)

Heard: 24 June 2016

Released: 08 August 2016

Flynote: Criminal Procedure ─ Appeal ─ Trial ─ Discharge at the end of the State’s case ─ Section 174 of the Criminal Procedure Act 51 0f 1977 ─ No evidence upon which a reasonable court may convict ─ Theft.

Summary: The appellant in this matter was charged for theft of a cell phone from a motor vehicle. Only the complainant testified in the case. He testified about the theft but did not know the appellant. The cell phone was not produced as an exhibit and the complainant never recovered his cell phone. At the end of the State’s case there was no evidence upon which a reasonable court could convict. The magistrate did not mero motu discharge the accused or explained to him that he can apply for a discharge. The appeal is upheld and the conviction and sentence set aside.

ORDER

1. The appeal is upheld.

2. The conviction and sentence are set aside.

JUDGMENT

JANUARY J, TOMMASI J (CONCURRING)

[1] The appellant in this matter was convicted in the magistrate’s court Eenhana on a charge of theft and sentenced to 36 months imprisonment of which 18 months imprisonment are suspended on conditions. He is appealing against both conviction and sentence in the matter. The appellant appeared in person in the court a quo. He is represented in this appeal by Ms Kishi and the respondent by Mr. Pienaar.

[2] The grounds of appeal are as follows:

1. “The Learned Magistrate failed to consider or blatantly ignored the Appellant/Accused explanation.

2. The Learned Magistrate erred in law and/or in fact in convicting the Appellant/Accused of theft.

3. There was no direct evidence adduced that links the Appellant/Accused to the theft of the cell phone.

4. The learned Magistrate erred in law and/or on facts by finding that the Appellant/Accused committed theft by selling the cell phone.

AD SENTENCE

1. The sentence is shockingly inappropriate and induces a sense of shock.

2. The sentence does not commensurate with the offence of which the Appellant/Accused has been committed (sic).

3. The sentence is disturbingly harsh.”

[3] The State only called the complainant in the trial. The complainant testified that on 22 April 2013 he parked his car in Eenhana Town at Osave market. He left his bag containing an I-pad phone, laptop, and N$3000.00 on the front seat. When he returned to the vehicle, he found his personal documents lying on the seat. The I-phone, laptop and money were gone. The value of the I-pad phone is N$8500.00 and the laptop N$14 622.00.  He testified that the person who took the items must have opened one of the doors of the vehicle. The witness suspects that the door must have been unlocked with another Toyota key or a device to defuse the door locks. This witness does not know who took the items. He did not recover any of the stolen goods and did not allow anybody to take the items. He does not know the appellant. There was no evidence implicating the appellant.

[4] The witness was not cross-examined and the State closed its case. After the closing of the State’s case a pre-printed pro-forma was used to explain the rights of the appellant reflecting the following:

“ANNEXURE “A”

RIGHTS AT THE CLOSE OF THE STATE’S CASE

“The public prosecutor has now closed the state’s case and will not call any more witnesses.

You have the opportunity to put your case before the court, should you wish to do so. You have the right to give evidence under oath yourself. If you decide to give evidence under oath the prosecutor has the right to cross-examine you to test your credibility and the Court may put questions to you.

Irrespective of whether you give evidence or not, you always have the right to call witnesses to testify on your behalf. They may also be cross-examined by the prosecutor and the Court may also put questions to them.

You are not obliged to give evidence or to call witnesses. You may choose to present no evidence and to remain silent. You must bear in mind, if you do this, that the Court will then consider the case solely on the evidence presented thus far. You must also remember that any explanation you gave in terms of Section 115 of Act 51 of 1977 does not amount to evidence.

QUESTION: Do you understand?

ANSWER: Yes

QUESTION: Is there any aspect, which you want me to explain more fully?

ANSWER: No “

[5] Section 174 of the Criminal Procedure Act provides as follows:

“174 Accused may be discharged at close of case for prosecution

If, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty.”

[6] The headnote with which I agree in S v Nakale and Others 2006 (2) NR 455 (HC) reads as follows:

“There cannot be a single and all-inclusive formulation in respect of the discharge of an accused in terms of s 174 of the Criminal Procedure Act 51 of 1977, but certain guidelines can be suggested: (a) the Court has a discretion to discharge at the end of the State case, or not; (b) the Court can mero motu, and in the case of an unrepresented accused ought to, consider whether to discharge at the end of the State case; (c) where there are multiple charges, an accused may be discharged on one or more of the charges; (d) the criterion at this stage is whether there is no evidence on which a reasonable court, acting carefully, may convict; (e) credibility of witnesses plays only a very limited role at this stage; (f) it is a consideration whether there is a reasonable possibility that defence evidence may supplement the State evidence; (g) there are also other considerations regarding the accused; (h) certain factors may have an impact on a consideration whether the accused may provide evidence to substitute that of the State, like the type of the offence alleged; the possibility of common purpose; rebuttable presumptions; an alibi-defence; the manner of questioning and putting statements to a witness during cross-examination and allegations or admissions during pleading; (i) the rights of the accused as entrenched in the Constitution of Namibia, 1990 should always be kept in mind; and (j) every case should be considered on its own merits and circumstances.”

[7] The Namibian Constitution provides for a fair trial in Article 12. In my view it entails that amongst others, any accused should also be able and for that matter should be put in a position to follow what is happening in a trial. I am of the view that the pre-printed form in relation to the rights of an accused in respect of a section 174 of the CPA discharge is not sufficient to inform any accused to their rights or on the court’s duties after the closure of the State’s case.

[8] It is explained to an accused at the stage of plea that he/she may give a statement or not in terms of section 115 of the CPA at the plea stage. I am convinced that no layman would know which Act is Act 51 of 1977. When it comes to the stage when the State closes its case, it may be after a lot of postponements in between or even after a day or two. I am of the view that at the close of the State’s case, it should be made clear to any accused that either if he/she feels that there is no case against him/her, he/she can apply for a discharge or that the presiding officer may mero motu decide whether or not it is necessary for him/her to testify.

[9] In this case there was no evidence on which a reasonable court could convict. I am sure that the appellant did not understand the proceedings and elected to testify by virtue of the explanation given to him in accordance with the pre-printed form. The learned magistrate convicted him on his evidence and not convict on that of the State. Even on his evidence the conviction is not in accordance with justice.

[10] The appellant testified that he received a cell phone from a friend in return for money that he borrowed the friend. The cell phone gave problems which lead the appellant to eventually sell it. The complainant’s cell phone was never in court as an exhibit and the complainant testified that he did not recover any of the items stolen.

[11] In my view the court a quo should have been in doubt on the identification of the cell phone that the appellant testified about. This court cannot conclude that the evidence of the appellant is about the cell phone of the complainant in the matter.

[12] In the result:

3. The appeal is upheld.

4. The conviction and sentence are set aside.

HC JANUARY

JUDGE

MA TOMMASI

JUDGE

APPEARANCES

For the Appellant: Mr Tjiteere

Dr Weder, Kauta & Hoveka Inc.

For the Respondent: Adv. Pienaar

Office of the Prosecutor-General

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