1

REPUBLIC OF NAMIBIA

NOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CA 16/2014

In the matter between:

STANLEY GAUOROB APPELLANT

and

THE STATE RESPONDENT

Neutral citation: Gauorob v The State(CA 16/2014) [2014] NAHCMD 214 (11July 2014)

Coram:NDAUENDAPO J and LIEBENBERG J

Heard:11 July 2014

Delivered:11 July 2014

Flynote:Criminal procedure – Appeal – Conviction – Accused convicted on warning statements of co-accused – Admission only admissible in evidence against the maker.

Summary:The appellant was tried together with two other accused and convicted of stock theft. The conviction of the appellant was solely based on warning statements of co-accused in which the appellant is implicated. The presiding magistrate during subsequent bail proceedings conceded that appellant was wrongly convicted. Appeal upheld.

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ORDER

  1. The application for condonation of the late noting of the appeal is granted.
  2. The appeal against conviction is upheld.

JUDGMENT

LIEBENBERG J (NDAUENDAPO J concurring):

[1] After evidence was heard the appellant, together with two other co-accused (hereinafter accused no’s 1 and 2), was convicted in the Magistrate’s Court, Omaruru on a charge of theft of stockand sentenced to three years’ imprisonment.

[2] Appellant lodged an appeal but without success in that the matter was struck from the roll for lack of grounds in the notice of appeal. The appellant on the 25th of November 2013 lodged another appeal, this time with proper grounds and accompanied by a condonation application for noting the appeal out of time. Subsequent thereto, on the 13th of December 2013,andafter the presiding magistrate having found that there are prospects of success on appeal, the appellant was admitted to bail.

[3] I pause here to observe that the amended notice of appeal dated 05 December 2013 had been filed with the clerk of court Omaruru and the presiding magistrate has filed a further or amended statement in terms of the rules of court (rule 67 (5)) in which he responds to the grounds set out in the amended notice. Besides dealing with the issue of legal representation and the cross-examination of the State witnesses, reference is also made to the admissibility of the warning statements of accused no’s 1 and 2 which were admitted into evidence after a trial-within-a-trial was conducted. However, the magistrate failed to state the basis for having relied on the incriminating statements made by accused no’s 1 and 2 against the appellant in these statements.This notwithstanding, the magistrate in a reasoned judgementin an application for bail pending appeal by the appellant, dealt with the law applicable and concluded that ‘those warning statements by accused 1 & 2 are tantamount to admissions and only admissible as evidence against accused 1 & 2 (the marks).’ Hence, he was of the view that a court of appeal might come to a different conclusion i.e. that the warning statements should not have been relied upon as the court did and that there are indeed prospects of success on appeal.

[4] Appellant has filed a substantive application for condonation in which he explains the delay in noting the appeal out of time. Respondent in its heads of argument intimated that the reasons provided by the appellant are reasonable and acceptable and that appellant furthermore has prospects of success on appeal. The concession is properly made and condonation will accordingly be granted.

[5] I turn next to the merits. The appellant was convicted on evidence based on the admissions of accused no’s 1 and 2 contained in their warning statements made to the police, in which they implicated the appellant. However, during their testimony they disputed having made the impugned statements relied on by the court when convicting. As earlier stated, the magistrate in his ruling in the bail application conceded that the appellant was wrongly convicted in that the conviction was solely based on the warning statements of the other accused. The magistrate further correctly pointed out that an admission is admissible in evidence only against its maker and cannot be extended to any co-accused (S v Malumo and 116 Others 2008 (1) NR 34 (HC) at 39C-D). Other than the incriminating evidence contained in the warning statements of his co-accused, there is no other evidence that remotely connects the appellant to the commission of the offence charged. This much the respondent concedes and the conviction cannot be permitted to stand.

[6] In view of the conclusion reached above, there is no need to deal with the remaining grounds of appeal set out in the notice.

[7] In the result, it is ordered:

  1. The application for condonation of the late noting of the appeal is granted.
  2. The appeal against conviction is upheld.

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JC LIEBENBERG

JUDGE

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N NDAUENDAPO

JUDGE

APPEARANCES

APPELLANT S Zenda

Of Conradie & Damaseb,

Windhoek.

RESPONDENTS R Nyambe

Of the Office of the Prosecutor-General, Windhoek.