S v Dreyer (HC-MD-CRI-APP-SNA-2024/00019) [2025] NAHCMD 166 (16 May 2025)

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

APPEAL JUDGMENT

Case No: HC-MD-CRI-APP-SNA-2024/00019

In the matter between:

THE STATE APPELLANT

and

BRENDON DREYER RESPONDENT

Neutral citation: S v Dreyer (HC-MD-CRI-APP-SNA-2024/00019) [2025] NAHCMD 166 (16 May 2025)

Coram: JANUARY J et D USIKU J

Heard: 4 April 2025

Delivered: 16 May 2025

Flynote: Criminal procedure – Appeal against – Acquittal – Respondent acquitted by the court a quo on a charge of robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act 51 of 1977, as amended.

Criminal procedure – Evidence – Right to remain silent – Consequences thereof in the face of evidence calling for an answer.

Criminal procedure – Evidence – Single witness – Court must be satisfied that the witness is credible – Evidence – Application of the doctrine of common purpose – Principles restated.

Summary: The respondent appeared before the Keetmanshoop Magistrate’s Court on a charge of robbery with aggravating circumstances as defined in s 1 of the Criminal Procedure Act 51 of 1977, as amended (“CPA”). At the end of the trial, the respondent was found not guilty and acquitted.

Displeased with the verdict of not guilty, the State successfully moved an application for leave to appeal against the respondent’s acquittal by the court a quo, which appeal was heard by this court.

Held that; how the evidence of a single witness should be evaluated is settled law in Namibia. It is trite law that the exercise of caution should not be allowed to displace common sense. The court must be satisfied that the witness is credible and their evidence should be of such nature that it constitutes proof of guilt beyond reasonable doubt.

Held further that; the evidence shows that the respondent acted together with other persons in assaulting the complainant and therefore actively associated himself with their actions, thereby making common cause.

Held further that; the court a quo failed to consider that it was not necessary for a finding of common purpose for the appellant to prove that the respondent was the one physically removing the complainant’s cellphone and money, as the appellant had proved that the respondent made common cause and associated himself with the group of the respondent’s assailants.

Held further that; the respondent exercised his right to remain silent, as he was entitled to do, as there is no obligation on an accused, where the State bears the onus, to prove his innocence.

Held further that; direct evidence was led by the appellant which placed the respondent at the scene and showed that he acted with common purpose with the other assailants in assaulting and robbing the complainant. No evidence was placed before the court a quo contradicting the version of the complainant.

Held further that; in the face of the weight of such direct evidence that has not been contradicted, the court may safely conclude that such evidence is conclusive to warrant the accused’s conviction on the charge preferred against him.

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ORDER

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1. The appeal against the respondent’s acquittal is upheld.

2. The respondent is found guilty as charged.

3. The matter is remitted to the court a quo to hear aggravation and mitigation proceedings before sentence.

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APPEAL JUDGMENT

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D USIKU J, (JANUARY J concurring):

Introduction

[1] The respondent was charged with the crime of robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act 51 of 1977, as amended (“CPA”). At the end of the trial, the respondent was found not guilty and acquitted by the court a quo.

[2] Displeased with the acquittal of the respondent, the appellant sought leave to appeal against it which leave was granted on 12 February 2024. This constitutes the appeal against the acquittal of the respondent. The appellant was represented by Mrs Ndlovu and the respondent was represented by Mr Siyomunji.

The grounds of appeal

[3] The appellant appeals against the acquittal of the respondent on the ground that the magistrate misdirected himself, or erred in law and/or fact by:

‘1. Acquitting the Respondent when the evidence proved beyond a reasonable doubt that the respondent in common purpose with the accomplices in his company robbed the complainant of his property by using force against the complainant;

2. Acquitting the respondent after making a finding that the complainant was a credible witness and accepting as a fact that the respondent had taken part in assaulting the complainant during which period the complainant’s property was taken without his consent;

2. Failing to find that the Applicant had proved beyond a reasonable doubt that the respondent was acting in common purpose with accomplices when the offence of robbery with aggravating circumstances had been committed against the complainant.

2. Failing to make a finding that because the respondent was acting in common purpose with accomplices, the actions of the accomplices are imputed to the respondent and therefore the unlawful taking of the complainant’s cellphone and 700 cash Namibian dollars (N$700.00)is imputed to the respondent as well.

2. Failing to take into consideration that the complainant’s evidence that the Respondent assaulted him in the company of his accomplices proved that the respondent had a common purpose with his accomplices to rob the complainant.

2. Failing to take into consideration that it was not necessary for the State to prove that the respondent was the one who physically removed the cellphone or money from the complainant as the Applicant had proved beyond a reasonable doubt that the respondent was making common cause with his accomplices by leading the assault on the complainant and robbing him.

2. Failing to take into consideration that having found that the evidence of the single witness was credible, cleat and satisfactory in all respects on the part played by the respondent during the robbery, and, as such, constituted a strong prima facie case against the respondent, it called for an answer and, without rebuttal as the respondent opted to remain silent, the evidence against the respondent became conclusive of the respondent’s guilt.

2. Failing to consider the applicability of a possible competent verdict of assault with intent to commit grievous bodily harm as the court had made a factual finding that the State had proved beyond a reasonable doubt the element of violence in the charge of robbery against the respondent which includes the use of a dangerous weapon, a bottle.

2. Failing to consider that there was a possible competent verdict of assault as the State proved beyond a reasonable doubt that the complainant was assaulted by the respondent and his accomplices in a bid to rob him.’

Submissions by the Appellant

[4] Counsel for the appellant submitted that the State led overwhelming evidence against the respondent which was credible. T the respondent was in the company of accomplices when they robbed the complainant of his money and cellphone. Counsel submitted further that the court a quo should have convicted the respondent as it found that the complainant’s evidence was credible and the element of violence was satisfied.

[5] Counsel further submitted that all elements of common purpose were satisfied in that the appellant proved that:

1. the respondent was at the scene when the complainant was being robbed;

2. the respondent was aware of the assault on the complainant when he took part in assaulting the complainant;

3. he made common cause with the other assailants as he picked up the phone; and

d) he knew that the complainant was about to be robbed through the use of violence as the assailants wielded knives and the complainant was assaulted with a beer bottle.

[6] It was further submitted by the appellant that once the court a quo made a finding that the respondent took part in assaulting the complainant in order to force him into submission, it did not matter that the respondent was not proved to have been the one who actually removed the cellphone or money from the complainant during the robbery. Counsel for the appellant submitted that the respondent should have been found guilty because he acted with common purpose with the other assailants, one of whom managed to appropriate the complainant’s property.

[7] Counsel further submitted that the State discharged its onus to prove a prima facie case and the respondent was placed on his defence by the court a quo but chose to remain silent. As a result, the State’s evidence remained unchallenged. It was counsel’s further submission that the court a quo did not consider the doctrine of common purpose and lost sight of the fact that there are competent verdicts that the court could have considered against the respondent. The appellant prays that the acquittal of the respondent be set aside and the respondent be found guilty of robbery with aggravating circumstances.

Submissions by the respondent

[8] The respondent submitted that he was rightfully acquitted. The State failed to lead sufficient evidence against him. The complainant could not say whether it was five or more than five assailants who attacked him. The respondent further submitted that the complainant could not say, with certainty, whether the respondent took part in the attack against him or robbed him of his cellphone and money.

[9] Counsel further submitted that even if the court were to accept that the respondent might have been at the scene, his participation in the assault and robbery of the complainant is doubtful because the complainant could not say with certainty that the respondent was one of the people that participated in assaulting him and took his money and cellphone. The respondent submitted further that it was not established that he was working with a gang to satisfy the doctrine of common purpose. Further that, the complainant was a single witness whose version of events was not corroborated and as a result was not a credible witness.

[10] Counsel for the respondent further submitted that the court a quo was not wrong in acquitting the respondent, as the appellant failed to prove beyond reasonable doubt that the respondent committed the offence charged, and argued the court to dismiss the appeal.

The court a quo’s conclusion

[11] The court a quo concluded that the complainant was a credible witness and that it was common cause that he was robbed. It further concluded that the element of violence, in relation to robbery, was satisfied. The complainant confirmed that the respondent was one of the persons who assaulted him. The court a quo further stated that, although the respondent was part of the assailants, the complainant did not testify that he saw the respondent with the cellphone in his possession. The court a quo concluded that due to the chaotic nature of the events that transpired, it is possible that the respondent picked up something else other than a cellphone.

[12] The court a quo observed that there were shortcomings in the evidence of the State, including the question whether the respondent indeed exercised any form of force, apart from the fact that he was part of the group of the assailants. Further that, when it comes to the actual appropriation of property, the complainant could not confirm whether the respondent took his money and cellphone. The court reasoned that it may as well be that anyone else in the respondent’s company might have taken the complainant’s property. For the above reasons, the court a quo was not satisfied that the State proved its case against the respondent beyond reasonable doubt and, as a result, acquitted the respondent.

Law and analysis of evidence

[13] The State relied on the evidence of a single witness in this matter. How the evidence of a single witness should be evaluated is settled law in Namibia. It is trite that the exercise of caution should not be allowed to displace common sense and a court must be satisfied that the witness is credible, and their evidence should be of such a nature that it constitutes proof of the guilt of an accused beyond reasonable doubt. In S v HN,¹ the court held that:

'the evidence of the single witness need not be satisfactory in every respect as it may safely be relied upon even where it has some imperfections, provided that the court can find at the end of the day that, even though there are some shortcomings in the evidence of the single witness, the court is satisfied that the truth has been told.'

[14] The court a quo, despite concluding that the complainant was a credible witness, proceeded to find that the appellant did not prove its case beyond reasonable doubt and acquitted the respondent, on the basis that the appellant did not prove that the respondent was the one who physically removed the complainant’s cellphone and N$700 cash. That, in our view, amounts to a grave misdirection.

[15] The State prays for the respondent’s acquittal to be set aside on the basis that the court, inter alia, failed to consider and apply the doctrine of common purpose. The author Burchell defines the doctrine of common purpose as follows:

‘Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. Liability arises from their ‘common purpose’ to commit the crime.’²

[16] In Tsabalala v The State; Ntuli v The State,³ Mathopo AJ had the following remarks to say on the subject of common purpose:

‘[48] The liability requirements of a joint criminal enterprise fall into two categories. The first arises where there is a prior agreement, express or implied, to commit a common offence. In the second category, no such prior agreement exists or is proved. In the latter instance the liability arises from an active association and participation in a common criminal design with the requisite blameworthy state of mind.

[49] It is trite that a prior agreement may not necessarily be express but may be inferred from surrounding circumstances. The facts constituting the surrounding circumstances from which the inferences are sought to be drawn must nevertheless be proved beyond reasonable doubt. A prior agreement to commit a crime may invoke the imputation of conduct, committed by one of the parties to the agreement which falls within their common design, to all the other contracting parties. Subject to proof of the other definitional elements of the crime, such as unlawfulness and fault, criminal liability may in these circumstances be established.’

[17] Having carefully considered the evidence provided before the court a quo and applying the above principles of the doctrine of common purpose thereto, the respondent did not dispute that he was at the scene when the complainant was being robbed. Evidence further shows that the respondent acted together with other persons in assaulting the complainant and therefore actively associated himself with the common purpose. The court a quo failed to consider that it was not necessary for a finding of common purpose for the appellant to prove that the respondent was the one physically removing the complainant’s cellphone and money, because the appellant proved that the respondent made common cause and associated himself with the group of the complainant’s assailants.

[18] The respondent did not testify in his defence. He exercised his right to remain silent, to which he was entitled to, as there is no obligation on an accused, where the State bears the onus, to prove his innocence. The position of our law was properly expounded in the following words by Langa DP in S v Boesak,⁴ when he stated as follows:

‘The fact that an accused person is under no obligation to testify does not mean that there are no consequences attaching to a decision to remain silent during the trial. If there is evidence calling for an answer, and an accused person chooses to remain silent in the face of such evidence, a court may well be entitled to conclude that the evidence is sufficient to prove the guilt of the accused. Whether such a conclusion is justified will depend on the weight of the evidence’.

[19] Further, in S v Namweya,⁵ Shivute J stated as follows:

‘Although the accused is not obliged to give evidence, I am of the view that this is not an appropriate case where the accused can safely opt to exercise his right to remain silent. Direct evidence had been led that incriminated the accused and this evidence calls for an answer. There was no evidence placed before me contradicting the version of the State apart from counsel for the defence putting questions to the State witnesses that they were mistaken about the identity of the person who committed the crimes and the bold denial that it was not the accused who committed these offences. However, the State refuted this bare denial with credible evidence. In the face of the weight of such direct evidence that has not been contradicted, the Court may safely conclude that such evidence is conclusive to warrant the accused’s conviction.’ (Own emphasis)

[20] In casu, direct evidence was led by the appellant placing the respondent at the scene, and showing that the respondent acted in common purpose with the other assailants in assaulting and robbing the complainant. No evidence was placed before the court a quo contradicting the version of the complainant. This court is therefore of the view that the evidence placed before the court a quo is conclusive and warrant the respondent’s conviction on the charge preferred against him.

[21] In the result the following order is made:

1. The appeal against the respondent’s acquittal is upheld.

2. The respondent is found guilty as charged.

3. The matter is remitted to the court a quo to hear aggravation and mitigation proceedings before sentence.

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D N USIKU

Judge

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H C JANUARY Judge

APPEARANCES:

APPELLANT: E N Ndlovu

Of the Office Prosecutor General,

Windhoek

RESPONDENT: M Siyomunji

Of Siyomunji Law Chambers,

Windhoek