1
REPUBLIC OF NAMIBIA
NOT REPORTABLE
HIGH COURT NORTHERN LOCAL DIVISION, OSHAKATI
APPLICATION FOR LEAVE TO APPEAL
Case no: CC 16/2012
In the matter between:
THE STATE APPLICANT
and
SEM SHAFOISHUNA HAUFIKU RESPONDENT
Neutral citation: The State v Haufiku(CC16/2012) [2016] NAHCNLD38 (24 May 2016)
Coram:TOMMASI, J
Heard:29 October 2015; 26 February 2016; 1 April & 24 May 2016
Delivered:24 May 2016
Flynote:Criminal Procedure – Application for leave to appeal – Recusal and order that trial start de novo before another judge – Reasonable prospects to succeed on some of the grounds – Leave granted.
Summary:TheState applied for leave to appeal the presiding judge’s decision to recuse herself and the order that the matter start de novo before another judge. The court held that it is unlikely that the applicant would succeed on the ground that the appearance of the accused in prison garb did not constitute evidence of a previous conviction. The court held further that a different court may conclude differently on the issue whether, in this case, it constituted a vitiating irregularity and whether or not the accused’s perceived apprehension of bias was reasonable or not. Under these circumstances court held that the applicant ought to be granted leave to appeal.
______
ORDER
1.The applicant is granted leave to appeal the presiding judge’s decision to recuse herself and the order for the trial to start de novo before another judge.
RULING & REASONS ON APPLICATION FOR LEAVE TO APPEAL
TOMMASI J
[1] The presiding judge concluded that it would be in the best interest of justice to recuse herself and ordered that the trial commence de novo before another judge. The State applied for leave to appeal the decision of the judge to recuse herself and the order that proceedings commence before another judge, in terms of s316A of the Criminal Procedure Act, 1977 (Act 51 of 1977).
[2] The grounds upon which the State indicated it would appeal are that: the judge misdirected herself, alternatively erred in law and/or fact in the following respects:
“1.By finding that the appearance of the accused in prison garb amounts to evidence of a previous conviction despite the fact that it was only for security purposes.
2.By finding that the appearance in prison garb was, in itself, a fatal irregularity which requires the court to recuse itself as in the mind of the court, it will interfere with accused’s right to a fair trial as enshrined in article 12 of the Constitution.
3.By finding that “it is established fact that this court in (sic) now privy to information/evidence which is inherently prejudicial to the accused’s case. The information has now been admitted into evidence albeit unintentionally. The question is whether the court can be trusted to exclude this evidence when it determines the guilt of the accused.” While none so whatever (sic) evidence to that effect was led or elicited.”
4.By finding that the accused, under the circumstances of this case has reasonable grounds to believe that she would be biased and his apprehension that she would not be able to disabuse her mind from the fact that he has previously been convicted of an offence, is to her mind reasonable, alternatively ignoring that where there are apprehensions of bias such allegation must be based on clear facts in view of the fact that there is a presumption of integrity and competency in favour of judge.
5.By wrongly concluding that she is mindful of the interest of the State but in this instance and on the facts of this case, it is her considered view that it would be right and proper to recuse herself;
6.By wrongly concluding that she is of the view that the interest of justice would be best served if she recused herself.”
[3]The presiding judge’s decision is of final effect and is therefore appealable. The question however is whether there are reasonable prospects that a higher court might disagree. The difficulty in doing so is the requirement that the presiding judge must reflect on his/her judgement dispassionately. In S v NingisaandOthers[1]Mainga JA cited with approval the following from S v Ackerman en 'n Ander[2]:
“'(A) reasonable prospect of success means that the Judge who has to deal with an application for leave to appeal must be satisfied that, on the findings of fact or conclusions of law involved, the Court of Appeal may well take a different view from that arrived at by jury or by himself and arrive at a different conclusion.”
[4] The first issue raised is whether the fact that the accused wore prison garb constituted evidence of a previous conviction.
[5] InS v Maputle and Another[3] the Supreme Court of Appeal came to the conclusion that the prisoner, who was an accused, entered court in prison garb and therefore communicated to the court that he was a prisoner and might have been sentenced before. In S v Phiri[4]Van Der Westhuizen J stated that:
“On the simplest and perhaps most technical level it may indicate to a judicial officer that the accused has been brought from prison, where he or she is serving a sentence for a previous conviction and thus in effect place inadmissible evidence before the court”
[6]This is common sense. When a person is clothed in prison garb it means that he/she has been found guilty of an offence and that he/she has been fined and was unable to pay the fine imposed or that he/she has been sent to a period of effective imprisonment. I do not believe that there are reasonable prospects that the applicant would succeed on this ground.
[7]The next question is whether it would be irregular to bring an accused to court in prison garb. S v Phiri, supra, Van der Westhuizen[5] Jfurther stated the following:
“The issue of accused persons appearing in court in manacles or leg irons, or in prison clothing, from time to time arises in courts and has evoked different and sometimes strong reactions, in the pre- as well as post-constitutional period of our criminal justice system. Whereas some judicial officers regard it as unacceptable, others seem to be of the view that the discretion of police or correctional service officials regarding issues of safety and security should not be interfered with and that a judicial officer should in any event be able to remain objective and impartial and ignore any potential undue influence as to the history or character of an accused. Whereas the latter view has — understandably — not necessarily been expressly formulated in reported judgments, the former has been stated in emphatic language.” [my emphasis]
[8]The Supreme Court already held that placing a prisoner in leg-irons or chains is an impermissible invasion of art 8(1) and contrary to art 8(2)(b) of the Constitution as it at least constitutes degrading treatment, and, the Court declared the practice unconstitutional.(See Namunjepo and Others v The Commanding Officer, Windhoek Prison and Another[6]). The issue however of wearing prison garb, has not been decided. I find the practice of wearing prison garb unacceptable but it is possible that a different court may come to a different conclusion as is evident from the citation above.
[9]The next question would be whether it vitiates the proceedings. InS v Phiri, supra,[7] the Court stated as follow:
“The undesirability of an accused appearing in court shackled or in prison clothing will not necessarily result in a finding of irregularity. In Maputle (para [13] above) the SCA found that the appellant's appearance in prison clothing and the indication on the charge-sheet that he had been sentenced did not render the proceedings irregular, in view of the fact that no indication could be found on the record that the magistrate had been unduly influenced and the absence of doubt concerning his guilt. Furthermore, not every irregularity results in a failure of justice and an unfair trial, as indicated above. The circumstances of each particular case may determine whether the proceedings were irregular and, if so, whether the irregularity resulted in a failure of justice and an unfair trial. The appearance of an accused in leg irons, for example, may be more serious than merely wearing prison clothes, both in the message it may convey about the accused, and from the perspective of dignity. The conduct of the prosecution, the accused or defence, and the court itself, as it appears from the record, may also be relevant.” [my emphasis]
[10]A different court may conclude that in the circumstances of this case that such an irregularity did not vitiate the proceedings asdisclosure of an accused's previous convictions is not an irregularity which per se vitiates the proceedings.[8]
[11]The real issue in my view is whether or not the disclosure had any effect on the presiding judge and whether or not the accused’s perception of bias under the circumstances is reasonable. This is a value judgment and the test is objective. Whilst this court held the view that such apprehension of bias was reasonable, a different court may conclude differently.
[12] In light of the fact that the court found there to be reasonable prospects that the applicant may succeed on some of the grounds raised, the applicant ought to be granted leave to appeal.
[13]In the premises the following order is made:
1.The applicant is granted leave to appeal the presiding judge’s decision to recuse herself and the order for the trial to start de novo before another judge.
______
M A TOMMASI
JUDGE
APPEARANCES:
For the Applicant:Adv R Shileka
Prosecutor General Office,
Oshakati
For the Respondent:Ms Amupolo
Legal Aid, Oshakati
[1] 2013 (2) NR 504 (SC)
[2] 1973 (1) SA 765 (A) at 766H
[3]2003 (2) SACR 15 (SCA)
[4]2005 (2) SACR 476 (T) on p482, para 15
[5]Page 479 paragraph 8
[6]1999 NR 271 (SC).
[7] on page 482-483 in para 17
[8] See S V Maputle and Another 2003 (2) SACR 15 (SCA); S v Mgwenya 1931 AD 3; S v Papiyana 1986 (2) PH H115 (A); S v Mthembu and Others 1988 (1) SA 145 (A) at 155C.)