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REPUBLIC OF NAMIBIA

NOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

REVIEW JUDGMENT

Case no: CR 79/2016

In the matter between:

THE STATE

and

JOHN BOOIS ACCUSED

(HIGH COURT MAIN DIVISION REF. NO. 1137/2015)

(MAGISTRATE REVIEW NO. 44/2010

Neutral citation: S v Boois (CR 79/2016) [2016] NAHCMD 345 (7 November 2016)

Coram: SIBOLEKA J AND USIKU J

Delivered: 7 November 2016

Flynote: Criminal procedure: Record of proceedings incomplete – all vital details left out. Presiding officer unable to reconstruct it – has left the Magistracy - the trial becomes a nullity.

Summary: The accused faced a charge of Housebreaking with intent to steal and theft, property was valued at N$12 320. Most vital details are in audible and indistinct. The presiding officer is unable to reconstruct, and has since left the Magistracy. Held: The conviction and sentence are set aside.

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ORDER

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In the result I make the following order:

The conviction and sentence are set aside.

REVIEW JUDGMENT

SIBOLEKA J (USIKU J concurring):

[1] The accused faced a charge of Housebreaking with intent to steal and theft of goods valued at N$12 320.

[2] He pleaded not guilty and witnesses testified. The prosecution called two witnesses, the complainant Frieda Kamberipa and Jannie Diergaardt. The record does not show well whether the second is a police officer and also the arresting officer. The evidence of these witnesses is so riddled with inaudibles and indistinct that I am unable to satisfy myself whether the conviction of the accused was indeed established beyond reasonable doubt or not. All the vital information of a trial are totally marred by these numerous inaudible and indistinct.

[3] I directed a query to the presiding Magistrate asking him to reconstruct the record. He wrote back to say he is unable to do so because he “… discarded his handwritten notes …” on the matter. He has also in the meantime left the employment in the Magistracy.

[4] The transcriber Tyro Business Services CC wrote in the transcribers remarks:

‘Problems experienced when typing the case of: State vs John Boois:

1.  Recording is not clear, hence all the indistinct/inaudibles in the record where they spoke. Proceedings are very badly recorded.

2.  Please make sure that all your equipment is checked before making a recording and after an adjournment, that all your microphones are switched on and are coming through properly.’

[5] It is for the above stated reasons that the conviction and sentence cannot be allowed to stand.

[6] In the result I make the following order:

The conviction and sentence are set aside.

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A M SIBOLEKA

Judge

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D N USIKU

Judge