REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

APPEAL JUDGMENT

Case no CA 19:/2014

In the matter between:

ALUGODI DAVID APPELLANT

and

THE STATE RESPONDENT

Neutral citation: Alugodhiv State (CA 19-2014) [2015] NAHCNLD3 (23 January 2015)

Coram:TOMMASI J and JANUARY J

Delivered: 23 January 2015

Flynote: Criminal Procedure—Appeal—Application for condonation—not opposed—Misdirection-no sufficient reasons-Appeal set aside.

Evidence—Evidence—Evaluation of—Two mutually destructive versions — No apparent reason why accused's version should be rejected—Not proved to be false beyond reasonable doubt Conviction and sentence set aside

Summary: The Court on appeal was faced with two mutually destructive versions in a charge of housebreaking with intent to steal and theft. The State relied on circumstantial evidence of shoeprints by police officers and security guards. No exhibits were handed up in relation to the shoeprints. The appellant gave evidence that could reasonably possibly be true. Appellant was not found with any stolen property. The Court held that the State did not prove the case beyond reasonable doubt. The conviction and sentence were set aside.

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ORDER

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1. The appellant’s non-compliance with the rules is condoned;

2.The appeal is upheld.

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APPEAL JUDGMENT

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[1] The appellant appealed in this matter after he was convicted of housebreaking with intent to steal and theft. He was sentenced to two years imprisonment. The appellant appeals against conviction and sentence.

[2]The grounds of appeal are;

“AD THE CONVICTION

The Learned Magistrate failed to take the following evidence and circumstances adequately into account:

  1. That the state failed to call the female security guard who saw the housebreaking as a witness.
  1. The appellant was not found in possession of any stolen items.
  1. The learned Magistrate completely disregarded the version of the Appellant and his witness and instead opted to accept that of the state’s, whose witnesses contradicted each other on material aspects.

3.1That State Witnesses 1 and 3 who were employed as Security Guards at the place in question contradicted each other in that state witness one testified that they met three me on their way whilst witness 3 says it was two men.

3.2The version of events by state witnesses 1 and 3 who were responsible for accused person’s apprehension differ completely more particularly where state witness one states that they saw the foot prints of accused persons at the scene which was disputed by state witness 3.

3.3The state failed to produce the shoe which was allegedly compared by the state witnesses to the shoeprint at the sceneas an exhibit, neither was there a photoplan tendered into evidence as proof of the shoeprints referred to.

  1. The learned magistrate erred in relying on “layman” evidence of shoeprint evidence as conclusive proof that accused was responsible for the housebreaking.
  1. The learned magistrate erred in law and/or facts by failure to consider that there was a conflict of facts between the state’s case

5.1 The learned magistrate erred and /or misdirected herself on the law and/or facts by failing to apply the correct approach where there is a conflict of facts, thus, the court misdirected itself by only considering the merits of the state’s case and ignoring the demerits of same and the probability of the matter.

  1. The learned magistrate erred in finding that the alleged items stolen being the sugar, money box and gun that were allegedly recovered came from the scene as these were not brought to court as exhibits and furthermore, the appellant was not found in possession of the said items, neither did he direct the police to the location where they were found.
  1. The learned magistrate erred in convicting appellant on a charge of housebreaking as non of the state witnesses testified or gave evidence to any housebreaking, save for the hearsay evidence tendered by witness no 1 and 3 that there was a housebreaking reported by a female security guard.
  1. Learned magistrate erred in finding that the state has proved beyond reasonable doubt the crime of housebreaking or accused person’s connection thereto.
  1. The Learned magistrate erred or misdirected herself on the law and/or facts in failing to consider that no direct evidence was led to place the Appellant at the scene with the items allegedly stolen, with the exception of the insufficient evidence of the alleged shoeprint.
  1. The Learned magistrate failed to consider that there was a possibility that the Appellant did not commit the offence in light of the evidence given to the court a quo about other two men that were found by the security guards attempting to cut a money box open, and who subsequently ran away.
  1. Learned magistrate misdirected herself or erred by attaching insufficient weight to the evidence by defence witness as well as the appellant regarding his walk from Y2K bar to 065 club, which explained his presence in that specific area at that time of night.
  1. The honourable court failed to properly and correctly asses the evidence in total.
  1. The Learned magistrate misdirected herself in fact and/or law in finding that the State proved its case against the Appellant beyond reasonable doubt.

AD SENTENCE

  1. The learned magistrate failed to take into account or take into account adequately that;

1.1The Appellant was a first offender;

1.2The Appellant has three children who are also dependant on him.

1.3 The Appellant was unemployed and was merely struggling here and there to make ends meet; and

  1. The value of the goods was only N$ 2700.00.
  1. The sentence induces a sense of shock and is not reasonable in the circumstances and a reasonable court would not have imposed such a sentence.”

[3]The evidence in this matter consist of 5(five) witnesses being led by the State. The first witness is the complainant, Jonas Erickson, who was a security guard and testified thathe does not know the applicant. This witness received a call from his employer at about 05h25 on 30/08/2012 about the breaking into the premises of their tissue factory. He went to the premises and found a member (a sergeant) of the Namibian police there.

[4] This witness testified that a burglar bar door was damaged when it was broken into and was cut. He, with the member of the police, found a fire arm, bolt cutter mask, a screw driver and sleepers (sic, slippers?). He missed cash money of N$ 2960.00, 5kg of sugar and a cheque of N$ 700.00 which was stolen from the factory. The cheque and sugar were recovered. The money and cheque was inside a safe in a drawer. They found the safe with the cheque and the sugar which was with the police member.

[5]The second witness, FillipusNghaamwa, was also a security guard and was employed at Falcon Security Company. He received a report through a radio call that there was a breaking into the aforementioned factory. The report was from a female security guard who did not testify in the court proceedings. The female reported that the suspects ran in the direction of this witness and his another security guard who testified in these proceedings. On their way to the place of breaking in, they saw three men whomthey told to stand. Two of these men ran away and the third one stopped when ordered to stop.

[6]This witness and his companion apprehended the appellant and went to the scene of crime. They compared his shoe print to prints on the scene and according to the witness it was exactly the same. They went from there back to the place where the appellant was apprehended and found a pistol which the police took. The appellant was about 20 meters away from this witness when he(the appellant) was stopped.

[7]The next witness for the State was a police officer, Dennis Kalungu, who happened to be on duty at 05h00 on the early morning of the incident. He received a report. Upon receiving the report he went to the scene with a colleague in the police force, Cst. Shikongo. They found the appellant with two security guards. The security guards reported that it was dark and they did not find the suspect with anything. The police went to the place where the appellant was apprehended and found the pistol in a small palm bush. The police officer also saw two other footprints of persons running from this scene. Following these footprints they also found a bolt cutter and the safe with some coins and the cheque of N$700.00. This witness confirmed that the one of the shoe prints was the same as that of the shoesthat the appellant was wearing.

[8]Cst. Shikongo was the next witness for the State. He testified and corroborated the testimony of the previous police officer about the apprehension of the appellant and the finding of the pistol. He further corroborated the correspondence of the shoe prints.

[9]The last witness for the State was Shidundeni Mathias. He is the other security officer. He corroborated the evidence of his colleague in relation to the apprehension of the appellant. He however said that the report was about two men who perpetrated the breaking in. He confirmed that after that he saw two men around bushes trying to break a money box, the two men ran away. They then walked to the place where it was reported the incident happened and found the complainant walking.

[10] The complainant said that he was walking to a club. The police came after an hour and recognized the appellant. The police was informed about two men who ran away and that the two were trying to break into a safe near bushes. They went to the place and found a Mr. Sackky. At this place a pistol and a bolt cutter was found. A short distance from here a broken cash box was found.

[11] The appellant was taken to the scene to compare shoe prints. The shoe print of the appellant was seen walking from the water engineering towards a club.The shoeprints of the appellant was not seeninside the yard. The witness further testified that appellant’s shoe prints were compared and his shoeprints were not found.

[12]The last State witness’s testimony contradicts the testimony of the previous three witnesses on a material aspect in relation to prints that were corresponding. In my view this contradictory evidence is mutually destructive. The last State witness was not at all discredited in cross-examination or by application by the State to declare the witness hostile.

[13]I agree with Hoff J where he stated in S v MALUMO AND OTHERS 2010 (1) NR 35 (HC

The State witness, Inspector Mukena, in his evidence-in-chief, testified that the accused had at the time of his arrest not been assaulted or threatened or provided with a certain version of events presented to him by the police officers. At some stage during cross-examination he relented and corroborated the version of the accused, under which circumstances the arrest had been effected. He admitted that the accused, on different occasions that day, had been assaulted by members of the Namibian Police Force, that the accused had been questioned about his involvement in the attack on KatimaMulilo on 2 August 1999, that the accused had denied any involvement in the attack, that on his denials he had further been assaulted, and that he was forced to admit to a certain version of the events that emanated from the police. The other two State witnesses, namely Inspector Lukopani and Warrant Officer Kashawa, denied this version and testified that the accused had never been assaulted on that day.

Mr January, who appeared on behalf of the State, submitted that the witness (Mr Mukena) discredited himself if one had regard to his contradicting evidence and the fact that subsequent State witnesses refuted his concessions.

The witness made the concessions referred to supra during cross-examination. There was no re-examination. These concessions therefore stand as evidence presented by the State, since neither has the State discredited this witness nor was there an application to have the witness declared a hostile witness. In the result, the State presented two mutually destructive versions to this court, which was fatal.[1]

[14] The appellant testified in his defence and called one witness. The appellant stated that he was found walking as he overstayed at a bar called Y2K. It was around 03h00 to 04h00 in the morning. He was apparently looking for a taxi and was accompanied by Johannes Kashidhimbiwa, the witness that he called. The appellant went to 065 Club to find somebody going to Oshakati where he was staying.

[15] On his way, before reaching the said club, he met with two security guards. The security guards called their work vehicle and when this vehicle arrived they called the police. A sergeant Dennis arrivedand said; this is my old customer.” The police and security guards went to the scene of crime but the appellant did not enter inside the premises. He was shown a shoe print alongside the side of the road. The shoe print looked like his but was different in size. They did not find the shoe print inside the yard.

[16] He was then taken to the place where he was apprehended but remained in the vehicle. Later Sgt Dennis called the appellant to identify a fire arm. The appellant told the Sgt that he did not own a fire arm. Later the Reserve Force was called whereupon Sgt Dennis told them that he found the fire arm in a palm bush. He was then arrested.

[17] The appellant was cross-examined and in my view his credibility remained intact. No inconsistencies or material contradictions were exposed

[18]The defence witness testified hereafter. He stated that he does not know anything of the case. He only came to court to come and testify because the appellant told him to come and testify how they met and parted. The witness stated that he was together with the appellant at Y2K bar and he escorted him to the road to get a taxi. He waited with appellant to get a taxi but did not get one. The appellant then went to 065 to see if he can get a hike. The witness parted then from appellant.

[19]In cross-examination the witness stated that the time was in the early morning hour’s maybe around 04h00. The witness stated that there was not a taxi rank at 065 but appellant went there because it was full of people. The witness could not tell what day of the week it was but it was during the Trade Fair days. They were looking for a taxi at Oshakati and Ongwediwa road. They waited for a taxi for about an hour. He cannot dispute that the appellant could have committed an offense after he parted. In my view no material contradiction emerged during his testimony. He confirmed an alibi for the appellant.

[20] The learned magistrate convicted the appellant as charged but did not provide reasons. She sentenced the appellant to a reviewable sentence of 24 months imprisonment. One of the reviewing judges requested reasons.

[21] The magistrate responded as follows:

“Considering the evidence of the complainant, a security officer FillipusNghaamwa who was on duty on said date, police officers Dennis Kalunga and FillemonShikongo who attended the scene of crime, the court was satisfied that their evidence was credible.

By also considering that the version of the accused could not be reasonable possible true.

Thus accused was convicted as charged”

[22]The magistrate did not provide her reasoning to come to the abovementioned conclusions. She also did not state anything about the credibility of the last State witness who in essence corroborated the evidence of the defence.

[23]Where a court deals with mutually destructive versions of the State, the court must be satisfied of the accused guilt beyond reasonable doubt. The mere fact that the evidence of an accused may be false does not necessarily lead to a conviction if there is a reasonable doubt as to the reliability of the State's evidence.[2]

[24]It is trite law that the State bears the onus to prove beyond reasonable doubt that the accused is guilty. The State needs to account for all the evidence to prove the commission of the offence, not the accused.

[25]There was no direct evidence that the appellant entered the premises where the offense was committed. The State relied on circumstantial evidence of shoe prints. There was no photographs presented of the prints and the relevant shoes were also not presented. Furthermore there is the problem of mutually destructive evidence of the State witnesses.

[26]The female security guard who reported was not called as a witness regarding her observation on the scene of crime, the identification of persons and more particularly the complainant. The report on how many persons were breaking in and the direction in which they went is inadmissible hearsay. In my view the evidence of the State does not exclude the version of the complainant. It does not prove that the accused's version is - beyond reasonable doubt - false, and he ought to have been given the benefit of the doubt.