Court name
High Court Main Division
Case number
CA 96 of 2013
Title

Tjiriange v S (CA 96 of 2013) [2013] NAHCMD 369 (04 December 2013);

Media neutral citation
[2013] NAHCMD 369
Coram
Damaseb J
Hoff J










REPUBLIC
OF NAMIBIA




HIGH
COURT OF NAMIBIA MAIN DIVISION, WINDHOEK





JUDGMENT








Case
no: CA 96/2013





DATE:
04 DECEMBER 2013





NOT
REPORTABLE







In
the matter between:








ELIAS
TJIRIANGE.................................................APPELLANT





And





THE
STATE........................................................RESPONDENT





Neutral
citation:



Tjiriange
vs The State (CA 96/2013) NAHCMD 369 (04 December 2013








Coram:
DAMASEB, JP et HOFF, J





Heard:
22 November 2013





Delivered:
04 December 2013








Flynote:
Criminal law – Evidence- Circumstantial evidence - A court
should only convict on circumstantial evidence if the inference
sought to be drawn is consistent with the proved facts and the proved
facts exclude every reasonable inference from them save the one to be
drawn – Lack of corroboration between proved facts and
circumstantial evidence due to poor investigation and inadequate
prosecution. Conviction and sentence set aside.








ORDER








The
appeal succeeds and the conviction and sentence are set aside.














JUDGMENT








Damaseb,
JP (Hoff, J concurring):





[1]The
appellant comes to this court seeking the reversal of his conviction
on a count of robbery with aggravating circumstances. He was found
guilty and sentenced to 7 years imprisonment of which five years were
made to run concurrently with another sentence he was already serving
at the time. He now appeals against both conviction and sentence.





[2]The
complainant's evidence was that he was robbed on 25 June 2007 during
broad daylight by three men who the complainant, from their manner of
speaking, believed were probably Zimbabwean. The complainant
testified that he was robbed of the following items:





(a)
DVD player;





(b)
DVDs;





(c)
His two ‘favorite’ blue and black suites;





(d)
An ‘expensive’ long leather coat extending down to his
knees;





(e)
‘Our mobiles’, i.e. his cellphone and that of his female
companion;





(f)
A Toshiba laptop; and





(f)
N$ 6000.





[3]
None of the stolen items were ever recovered. In his testimony at the
trial, the complainant never stated the color of the ‘expensive’
long coat that was stolen or whether it was for males or females. The
complainant was never asked during his evidence in chief to describe
‘our mobiles’ (his and his female companion’s)
which were stolen or to confirm the serial numbers of any of those
handsets.





[4]
The complainant confirmed that after he reported the robbery the
police came and lifted fingerprints from the crime scene. The
appellant under cross-examination obtained the crucial concession
from the only police officer who testified that his fingerprints were
not found on the scene of crime.





Complainant’s
description of the robbery





[5]
The complainant testified that on the fateful day he answered a call
at his door. A man was at the door holding a box and said he was
making a delivery. The complainant is in the restaurant business. He
was therefore not surprised to be receiving such a delivery. He had
not long before received another delivery. The complainant testified
that he opened the door to let in the supposed delivery man,
whereupon another man - brandishing a firearm - surprised him and
pointed the firearm to his head and forced the complainant and his
female companion to lead the intruders, now three, into the bedroom.
The first of the robbers, the supposed delivery man whom the
complainant in court pointed out as the appellant, dropped the box he
was carrying and did most of the talking during the robbery. The
complainant testified that the appellant was well dressed and spoke
very good English.





Complainant’s
identification of the appellant





[6]
The first time the complainant identified the appellant was in the
dock at the trial. On this occasion he testified, pointing at the
appellant who was then the only person in the dock, that he would
never forget the face of the man who robbed him, that the robber had
looked him right in the eyes at the time and that he had the
opportunity to properly observe the appellant whom he was therefore
able to point out in the dock.





[7]
During cross-examination of the police officer who testified at the
trial and whose evidence I shall deal with presently, the appellant
elicited the vital evidence that after this traumatic experience the
complainant had told the investigating officer that he would never be
able to recognise the robbers if he saw them again. It was apparent
from that cross-examination that the complainant had said as much in
a witness statement he had given to the police.





Arrest
of the appellant





[8]
The appellant was arrested by warrant officer Felix Ndikoma. The
arrest was made, according to this officer who testified at the
trial, as a result of information supplied by a friend of the
appellant, one Mr Methuselah Dausab. That information was to the
effect that the appellant had in the past called him using a
cellphone number which, according to warrant Ndikoma, was confirmed
by Namibia Mobile Telecommunications Company (MTC) cellphone records,
to have been hosted on the cellphone stolen from the complainant. A
Mr Harmut Riedl, an employee of MTC, testified at the trial and
corroborated warrant Ndikoma. Mr Dausab had also told the
investigating officer, and confirmed in court under oath, that he had
on the same day of the robbery seen the appellant with a cellphone he
had not before seen him with and a leather coat which was in a laptop
bag.





[9]
Mr Dausab stated in his evidence that he and the appellant were good
friends for quite some time and that the friendship dates back to
when they were at school. The appellant visited him regularly and on
25 June 2007 (the day of the robbery) came to stay with him as he had
a quarrel with his father. Later that day the appellant returned and
had with him a black Nokia cellphone Mr. Dausab had not seen before
the appellant left and a black leather coat which was in a laptop
bag. Mr Dausab testified that the appellant told him that the items
belonged to his girlfriend and that he needed to sell them as he had
to go to the north urgently. According to Mr Dausab, the leather coat
the appellant had in his possession came up to the ankles or the
feet. He testified that the coat was for a male.





[10]
Mr Dausab further testified that a few days after the robbery the
appellant told him he was leaving because he feared that the police
had recognised him and were looking for him.





[11]
Although, and dare I say inexplicably, Mr Dausab was never asked
in-chief to confirm under oath and on the record his cellphone number
and that of the appellant which he was said to have confirmed to the
police, the appellant, who had by then chosen to conduct his own
defence, elicited through cross-examination from Mr Dausab that the
number that the appellant called him from before the robbery was
0813279645. He also confirmed that it was that number that he pointed
out to warrant Ndikoma as the number from which the appellant had
called him in the period before the robbery.





[12]
Warrant officer Ndikoma stated under oath that as part of the
investigation into the subject robbery, he obtained certain records
from MTC. Based on those records, according to this witness, he made
the link between the complainant’s stolen cellphone and the
cellphone number of Mr Dausab. The gravamen of his evidence was that
Mr Dausab then informed him that a number which the police implicated
as belonging to one of the robbers was identified by Mr Dausab as
being the one from which the appellant had called him in the past.
According to warrant Ndikoma, the number thus linked by Mr Dausab to
the appellant was, in the period after the robbery, hosted on a
cellphone stolen from the complainant which was, by unique serial
number, identified as the stolen cellphone of the complainant.





[13]
I must repeat at once that inexplicably no evidence whatsoever was
elicited in-chief from the complainant that the cellphone bearing the
serial number identified by both Ndikoma and Mr Riedl of MTC as that
of the complainant and which hosted, in the period after the robbery,
the number linked to the appellant, belonged to the complainant.





[14]
The learned magistrate justified the conviction on the dock
identification and on inferential reasoning, as does the State now on
appeal. The reasoning goes that the events of 25 November 2007 were
so indelibly imprinted on the complainant's mind that his
identification of the appellant as the robber in the dock was
reliable and safe. The danger of a mistaken identification was
excluded, the magistrate found, by the appellant being found in
recent possession of the leather coat fitting the description of that
stolen from the complainant - in a laptop bag - also an item stolen
from the complainant and, most importantly it appears, confirmation
by Dausab that the appellant had called him from a number
subsequently confirmed by MTC to have been hosted after the robbery
in a cellphone stolen from the complainant.





The
appellant’s arguments against his conviction





[15]
The appellant has on appeal urged us to find that his conviction is
unsafe and that the State had not proved his guilt beyond reasonable
doubt. In the first place , he argues that the dock identification
is unsafe in that the complainant was the very man who had after the
event told the police that he would never be able to again recognise
the robber; that contrary to the complainant's statement to the
police that the robbers were probably Zimbabwean, he is Namibian;
the complainant never pointed him out at an identification parade
and only did so while he was in the dock in circumstances which
excluded any possibility of the complainant pointing out any one else
but him.





[16]
The appellant also argued that it was never proved that the coat
found in his possession was that stolen from the complainant and, as
far as the cellphone is concerned, he forcefully argued that Mr
Dausab’s evidence is most unreliable in that the MTC records
fail to establish any calls made between the number alleged to be his
and reportedly hosted on the stolen phone and Mr Dausab’s
cellphone number. The point he makes here is that there is no
corroboration by MTC records of Dausab’s version that the
appellant communicated with Dausab using a cellphone number said to
have been hosted on the stolen cellphone.





[17]
A court should only convict on circumstantial evidence if the
inference sought to be drawn is consistent with the proved facts and
the proved facts exclude every reasonable inference from them save
the one to be drawn. If the proved facts do not exclude other
reasonable inferences we are left with a doubt whether the inference
sought to be drawn is correct.1





[18]
Dock identification is approached with caution.2
Single witness evidence, it has been held, must be approached with
even greater caution in the case of identification. 3
In my view, that danger becomes even more pronounced where the
identity of the alleged perpetrator is by means of a dock
identification which had not been(as here) preceded by a proper
identification parade.4





[19]
The present conviction cannot be justified either on the Blom-test or
on the test for safe dock identification.





The
dock identification is unsafe





[20]
The complainant was a single witness on the issue of identification.
The complainant's earlier admission that he would never be able to
recognise the robber again rendered unfair, and prejudicial to the
appellant, the State’s failure to have arranged an
identification parade that would have afforded the complainant the
opportunity to point out the appellant prior to the dock
identification. The appellant's contention, that the complainant was
placed in the position that he could point out no other person but
him, is a good one. 5Besides,
the complainant's earlier assertion that the robbers were probably
Zimbabwean given their manner of speaking, is irreconcilable with the
common cause fact that the appellant is a Namibian. During
cross-examination the appellant elicited from the complainant that
the latter had seen a picture of the appellant in a newspaper in
connection with an unrelated alleged crime and then resolved it was
the same person who had robbed him.





[21]
Although the complainant was at pains to point out that the newspaper
article containing the appellant’s picture did not mention the
present offence, it was never produced in evidence. Significantly in
my view, it is the sort of evidence one would have expected the State
to place before court and to eliminate any risk of false or mistaken
identification based thereon. In my view therefore there is a very
real likelihood that the appellant was prejudiced in the way proof of
his dock identification was presented.





The
proved facts don’t lead to guilt as only reasonable inference





[22]
It was the State’s duty to prove beyond reasonable doubt that
in fact the appellant was the owner of the suspect number hosted on a
stolen phone; that the phone allegedly stolen was actually stolen
and that it belonged to the complainant. The State failed to prove
certain facts in the absence of which the Blom inferential reasoning
does not apply. Except for warrant Ndikoma’s say-so, the State
did not elicit any evidence from the complainant that he was in fact
the owner of a cellphone bearing the serial number which after the
robbery hosted the sim card number linked by Mr Dausab to the
appellant. Without that connecting evidence, warrant Ndikoma’s
evidence and that of MTC’s Mr Riedl that there was contact
between the number attributed to the appellant and that stated by Mr
Dausab as his’, counts for nothing in circumstances were the
accused denied that he neither possessed the stolen phone nor owned
the number which was hosted on it.





[23]
The inference of guilt is gravely undermined by the fact, not
disclosed by the State, that no fingerprints of the appellant were
found on the crime scene in circumstances where one would have
expected such evidence to be found considering that there is no
evidence on record that the robbers wore gloves at the time of the
robbery. Also significantly favourable to the appellant is the
evidence that the coat seen by Dausab appears not to be the same coat
described by the complainant. Faced with this difficulty, counsel for
the State sought to argue that Mr Dausab’s description of the
coat as reaching up to the ankles or feet ( as opposed to the
complainant’s evidence that it came up to his knees) was not
‘precise’ but urged us to accept as corroborating the
complainant in that it conveyed that the coat was ‘long’.
Fact remains, the two descriptions differ and the State made no
effort to clarify the anomaly. That the coat stolen from the
complainant was the same coat seen by Mr Dausab is not the only
possible inference on the facts.





[24]
Warrant officer Ndikoma under cross examination stated that Dausab
told him that Dausab had also seen the appellant in possession of a
laptop. The inference sought to be drawn was that since the
complainant had been robbed of a laptop, that found in the
appellant’s possession was the complainant’s stolen
laptop. Dausab’s credibility , in so far as his incrimination
of the appellant goes, is undermined by the fact that he had told the
investigating officer that he had seen the appellant with a laptop
but at the trial denied that he saw the appellant with a laptop.





[25]
The appellant argued, and it was conceded by counsel for the State,
that MTC records do not establish at all that at any stage before or
after the robbery, a number attributed to the appellant had been in
contact with a number said to belong to Mr Dausab. The only evidence
there is for that is Dausab's say-so. The investigating officer's
evidence is that he found the link to the appellant through Mr Dausab
in that he established that the stolen phone hosted a number that
communicated with Dausab. On what basis then can there be no evidence
from MTC of the suspect number calling Dausab – at any stage?





[26]
I am therefore compelled to agree with the appellant that the State
failed to prove beyond reasonable doubt that the appellant was at any
stage in possession of the stolen cellphone.





[27]
The State also failed to prove that the coat found in the appellant's
possession was that stolen from the complainant. The complainant did
not as much as state the color of his stolen coat. Not only that, the
State concedes that there is a discrepancy, I dare say a significant
one, between the coat described by the complainant and that found in
the appellant's possession based on Mr Dausab’s description of
the coat.





[28]
I am satisfied that the State failed to prove that the appellant was
the robber. This case is a sad example of a very poor investigation
and a very inadequate prosecution. No serious attempt was made to
connect the proverbial dots both during the investigation and the
prosecution with the result that a possibly guilty man must go free
from so serious a charge.





[29]
True, the accused chose not to give evidence under oath to put his
version of events. I am not surprised, given the deficiencies in the
State’s case. It is trite that if the case against an accused
is tenuous, he does not expose himself to any appreciable risk if he
does not give evidence. 6
An accused’s silence is really only significant, I do not by
any means suggest irrelevant, where there is direct testimony (as
opposed to circumstantial evidence) implicating the accused. 7
The accused’s failure to testify was therefore of no moment on
the facts before us. All told, the case for the State is so deficient
that no reasonable court, properly directing itself, could have
convicted the appellant. He was entitled to the benefit of the doubt.





[30]
The appeal succeeds and the conviction and sentence are set aside.










P
T Damaseb





Judge-President





E
P B Hoff





Judge











APPEARANCES





APPELLANT:
In Person









RESPONDENT: E
N Ndlovu



Of Office of
Prosecutor-General






1R
v Blom 1939 AD 288.




2S
v Haihambo 2009 (1) NR 176 at 182, paras 22-24.




3S
v Kavandjii 1993 NR 352 at 353H.




4Compare
the reasoning of Hoff J in S v Haihambo 2009(1) NR 176 at 182, paras
22- 26.




5Ibid,
para 26.




6S
v Haikela and Others 1992 NR 54 at 63E.




7Ibid
at 64A.