CASE NO. CA41/2009
NOT REPORTABLE
IN THE HIGH COURT OF NAMIBIA
In the matter between:
GIDEON USEB APPELLANT
and
THE STATE RESPONDENT
CORAM: HOFF, J et NDAUENDAPO, J
Heard on : 12 November 2010
Delivered on: 12 November 2010 (Ex tempore)
APPEAL JUDGMENT
HOFF, J: [1] The appellant in this matter was convicted in the Regional Court on a charge of rape and he was sentenced to 15 years imprisonment. It is common cause that the charge sheet and the cassette on which the proceedings were recorded in the Court a quo went missing. Furthermore, the presiding officer as well as the prosecutor in the Court a quo, have left the services of the State and the record can not be reconstructed.
[2] It is trite law that in these circumstances, the conviction as well as the sentence cannot stand.
[3] In the result, this Court makes the following Orders:
1. The conviction and the sentence are set aside.
2. The Prosecutor General has the prerogative to institute criminal proceedings against the appellant afresh if she so wishes.
HOFF, J:
I agree
NDAUENDAPO, J
ON BEHALF OF THE APPELLANT: MR VAN VUUREN
Instructed by: KRUGER, VAN VUUREN & CO.
ON BEHALF OF THE RESPONDENT: ADV. NYONI
Instructed by: OFFICE OF THE PROSECUTOR GENERAL