Court name
Supreme Court
Case name
S v Narib
Media neutral citation
[2003] NASC 17











CASE NO.: SA 5/2003



IN THE SUPREME COURT OF NAMIBIA







In the matter between















JOHN NARIB




APPELLANT








And















THE STATE




RESPONDENT












CORAM: Strydom, A.C.J., Teek, J.A. et O'Linn, A.J.A



HEARD ON: 07/10/2003



DELIVERED ON: 13/11/2003



_____________________________________________________________________________



APPEAL JUDGMENT



_____________________________________________________________________________






O’LINN,
A.J.A.:


INTRODUCTION:



The appellant was accused no. 3 in the Court a quo. He was
one of two accused convicted on 11/03/1997 on two (2) counts of
murder and one (1) of robbery with aggravating circumstances. He, as
well as Patrick Somseb, accused no. 4, was sentenced on 13/03/1997 as
follows:







Imprisonment for life on each of two counts of murder and ten (10)
years on the count of robbery.







Accused no. 1 and 2 were found “Not Guilty” at the end of the
State case. Appellant launched his first application for leave to
appeal eighteen months after sentence. The said application was
refused on the same day. Thereafter application was made for leave
to lead new evidence but was similarly rejected in the Court a
quo
. After repeated further delays the judges of this Court
granted leave to appeal in response to a petition for leave to
appeal. The wording of the grant of leave was somewhat ambiguous and
need some clarification at the outset. It reads:







“The petition by the accused for leave to appeal against the
refusal of the Court a quo to reopen the matter and to hear further
evidence, is granted by three judges of the Supreme Court on 12th
February 2003.







The application for leave to appeal against his conviction and
sentence stand over till the above appeal is heard.”







It seems that the intention was to consider whether leave to appeal
against conviction and sentence will be considered only once the
appeal against the Court a quo’s refusal to allow new
evidence has been decided upon.







However, it would follow as a matter of course that once this Court
grants leave for the reopening of the case in the Court a quo,
the case will be referred back to the Court a quo for the
taking of such further evidence. In that case leave to appeal
against conviction and sentence will follow as a matter of course.
After remittal and the taking of the proffered evidence, the case
will be referred by the Court a quo to this Court for the
consideration of the appeal against conviction and sentence.







On the other hand, if this Court rejects the appeal for the reopening
of the case for the purpose of taking the new evidence, this Court
will at the same time consider whether or not leave to appeal against
conviction and sentence should be granted notwithstanding the
rejection of the reopening of the case for the purpose of the taking
of the suggested new evidence.







In the latter event, the appeal will be postponed until the next
session of this Court for consideration of the appeal on the merits
of the conviction and sentence. In that event, the legal
representatives of the appellant and the State will be required to
submit full written heads of appeal on the merits prior to the
hearing of such appeal.






THE APPLICATION FOR NEW EVIDENCE







I will now proceed to deal briefly with the appeal against the Court
a quo’s refusal to allow a reopening of the case for the
purpose of taking of certain specified alleged new evidence.







Ms. Schimming-Chase appeared before us for the appellant and Ms.
Jacobs for the State. Ms. Schimming-Chase only received her brief
from the Chief: Legal Aid on 5th September 2003. She
applied for condonation for the late filing of her heads of argument.
There was no objection from the side of Ms. Jacobs. There was no
reason whatever not to grant condonation and condonation was
consequently granted.







As is evident from the papers and the judgment of the Court a quo,
the appellant was responsible for considerable and undue delay both
in bringing his application for leave to appeal as well as the later
application for new evidence. These late applications manifested a
lack of will and even a lack of belief in the merits of his case.
However this Court granted leave to appeal mainly because of the
gravity of the sentences and the reasonable possibility that the
proposed new evidence could turn the scales, alternatively that a
reasonable argument may be forthcoming amounting to reasonable
prospects of success on appeal against conviction.







The prospects of new credible evidence however, dissipated by the
time that argument had been concluded. I say so for the following
reasons:







1. The main proposed “new” evidence was a letter allegedly
written by one Maleagi Richter to the appellant wherein Maleagi
Richter allegedly stated that he committed the crimes together with
accused no. 4, one Patrick Somseb, and that the appellant, John Narib
was completely innocent.








  1. This letter was unsigned.









  1. Neither the present counsel of appellant, nor the previous counsel
    have been able to obtain any evidence from the said Maleagi Richter
    confirming that he wrote the letter, notwithstanding the lapse of a
    long time.









  1. Ms. Jacobs, at the hearing of the appeal, handed in a sworn
    statement from Richter wherein he denied ever having written such a
    letter to appellant, John Narib.









  1. It is grossly improbable that a person in the position of Maleagi
    Richter would have written such a letter.








In the circumstances the letter submitted by the appellant after many
years in prison, appears to be a fabrication concocted by appellant
in prison, with or without the assistance of accomplices.







  1. The application for further
    evidence also fails to comply with subsection (3) of section 316 of
    the Criminal Procedure Act no. 51 of 1977 which reads as follows”








“(3) When in any application under subsection (1) for leave to
appeal it is shown by affidavit-







(a) that further evidence which would presumably be accepted as true,
is available;








  1. that if accepted the evidence would reasonably lead to a different
    verdict or sentence; and








(c) save in exceptional cases, that there is a reasonably acceptable
explanation for the failure to produce the evidence before the close
of the trial, the court hearing the application may receive that
evidence and further evidence rendered necessary thereby, including
evidence in rebuttal called by the prosecutor and evidence called by
the court.”











This effort by the appellant is prima facie, not only a fraud,
but a contempt of Court. It should be further investigated by the
police to establish whether a crime has been committed and in order
to discourage this type of activity.







The second basis for alleged new evidence is even more confused and
without merit. This basis consist of a request to call accused no.
4, Patrick Somseb, as a witness, for the purpose of confirming that
appellant is innocent and that the aforesaid Maleagi Richter was the
guilty person in conjunction with accused no. 4. There was no
indication whatsoever that Patrick Somseb was willing to testify on
behalf of appellant.







This matter was also canvassed to some extent during the trial and
cannot be regarded as “new evidence”, nor does it comply in any
respect with the said subsection (3) of section 316.







I have no doubt whatsoever that the application for new evidence must
be rejected as completely without merit.






THE QUESTION WHETHER OR NOT LEAVE TO APPEAL
AGAINST CONVICTION AND SENTENCE SHOULD BE GRANTED NOTWITHSTANDING
REFUSAL OF PERMISSION TO ALLOW THE ALLEGED NEW EVIDENCE







Ms. Schimming-Chase has already raised several aspects on the merits
which are at least arguable in regard to the question of whether
these grounds constitute reasonable grounds of appeal. Ms. Jacobs
for the State however, restricted herself mainly to the application
for new evidence.







There are several points in addition to those referred to by Ms.
Schimming-Chase which are argueable. The trial in the Court a quo
was a complicated one where the standard of work of some of the
investigating officers left much to be desired. This made the task
of the presiding judge extremely difficult.







In the circumstances it would be more satisfactory and in the
interest of justice if the merits of the conviction are thoroughly
reargued before this Court. It seems to me that as the matter now
stand, it cannot be said that there are no reasonable prospects of
success on appeal against conviction. However, should the conviction
stand, the sentence should also remain in place. The sentence was a
fitting sentence for such brutal, cowardly and atrocious crimes.
Consequently there are no reasonable prospects of success of an
appeal against sentence.







In the result the following order is made:







1. The appeal against the refusal to reopen the case and to lead new
evidence is rejected.







2. Leave is granted to appeal against the conviction.







3. The appeal should be set down for the next session of this Court.







4. Counsel for the parties should timeously submit further heads of
argument dealing with the merits of the conviction.































________________________



O’LINN, A.J.A.























I agree.



























________________________



STRYDOM, A.C.J.



























I agree.























________________________



TEEK, J.A.














































COUNSEL
ON BEHALF OF THE APPELLANT:



MS.
E. SCHIMMING-CHASE



Instructed
by:



Legal
Aid



COUNSEL
ON BEHALF OF THE RESPONDENT:



MS.
H.F. JACOBS



Instructed
by:



PROSECUTOR-GENERAL
















/mv