Court name
High Court Main Division
Case number
CRIMINAL 17 of 2013
Title

S v Kandjimi and Another (CRIMINAL 17 of 2013) [2013] NAHCMD 62 (07 March 2013);

Media neutral citation
[2013] NAHCMD 62
Coram
Van Niekerk J
Ueitele J













REPUBLIC OF NAMIBIA



HIGH COURT OF NAMIBIA
MAIN DIVISION, WINDHOEK



JUDGMENT



Case No: CR 17/2013


In
the matter between:



THE STATE



and



  1. MARTIN
    KANDJIMI


  2. SAKARIA
    SHIPETA




(HIGH COURT MAIN
DIVISION REVIEW REF NO 1211/2012)



Neutral citation: S
v Kandjimi and another
(CR 17-2013) [2013] NAHCMD 62 (7 March
2013)



Coram: VAN
NIEKERK, J and UEITELE, J



Delivered: 7 March
2013



Flynote: Criminal
procedure
– Evidence – Admissibility –
Extra-curial admissions and pointing out – Rights of suspect
and accused – police should warn suspect of constitutional
rights – Right to legal representation, right to be presumed
innocent, right to silence, right against self-incrimination –
Admissions and pointing out rules inadmissible due to failure to warn
accused as suspect





ORDER










  1. The conviction of
    accused no. 1 is confirmed, but only in respect of one oryx.



  2. The sentence of accused
    no. 1 is set aside and substituted with the following sentence:




Three (3) months
imprisonment.




  1. The sentence is
    backdated to 9 May 2012.



  2. The conviction and
    sentence of accused no. 3 is confirmed.










REVIEW JUDGMENT





VAN NIEKERK, J (UEITELE,
J concurring):



[1] The accused, with
another co-accused, was charged with a c/section 30(1)(a) of the
Nature Conservation Ordinance, 1975 (Ordinance 4 of 1975), in that he
unlawfully hunted huntable game, to wit 5 oryx without a permit. He
pleaded not guilty.



[2] The State led
evidence that a farm worker, Phillipus Ashipala, found the two
accused and two other accomplices while they were skinning an oryx.
They ran away. At the scene he found two wire snares used to catch
animals. The next day Ashipala pointed out the two accused and
another perpetrator. The police were called.



[3] Constable Kabende
testified, inter alia, that he was first shown accused no 3
and another alleged perpetrator. At a later stage they found accused
no. 1. He interrogated accused no. 1, asking him what he knew of the
illegal hunting that took place at the farm. Accused no. 1 allegedly
mentioned that he slaughtered one oryx with his co-accused and
another man. Accused no. 1 also mentioned that he had slaughtered
another oryx with another man. The police asked the three men to lead
them to the scene where they had slaughtered the oryx. This they did.
As I understand it, this was the scene where Ashipala saw them. The
police also asked accused no. 1 to lead them to the other scene. The
accused did so and there showed them places where he had hung the
meat of four oryx, each oryx at a different place. The police found
the skins and some horns. The police then took accused no. 1 with
them to identify one of the other perpetrators. They could not locate
this person. Then they returned to the complainant’s farm,
where the complainant opened a case against the accused. They were
then arrested and their rights were explained. At a very late stage
in his evidence the prosecutor asked Const Kabende if any force,
threats or undue influence were used on the accused to point out the
scenes, to which he replied in the negative.



[4] The complainant and
the farm worker confirmed that accused no. 1 had pointed out the
other places where he had hung out the meat of the other four oryx to
dry. They denied that any force was used.



[5] Accused no. 1’s
case was that he did not point out or admit anything; that he did not
lead the police to any scene; that this was done by other persons;
and that he was handcuffed and beaten at the time. Accused no. 3
appears to have denied pointing out anything. When he testified he
admitted coming to the first scene in accused no. 1’s company,
but stated that this occurred after the oryx was already dead. He
denied skinning the animal or setting any snare. Although accused no
1 did not testify, he did not challenge accused no. 3’s
version, but stated that he agreed with it.



[6] The trial magistrate
took into account that accused no. 1 pointed out the scenes freely
and voluntarily and convicted him of hunting the five oryx. She
convicted accused no. 3 only on the one oryx at the first scene.



[7] On review the
following questions were posed to the trial magistrate:



1. Is the
evidence of the pointing out by accused no. 1 and the admissions he
made not inadmissible?




  1. If the answer to the question posed
    is “yes”, is there sufficient evidence to sustain a
    conviction in respect of all 5 oryx?



  2. If accused no. 1 should only have
    been convicted in respect of 1 oryx, what should his sentence be?’




[8] The magistrate
replied that, having consulted a recent judgment, she realises that,
as the accused’s rights were not explained as set out in the
Judges’ rules, the evidence about the admissions and the
pointing out is inadmissible. She suggests that without this evidence
there is still sufficient evidence on record in respect of the one
oryx killed at the first scene, but concedes that the conviction
cannot stand in respect of the other four oryx.



[9] In S v Malumo and
others (2)
2007 (1) NR 198 HC Hoff, J considered a suspect not to
be in a different position to an accused. The Court held that the
police had been under a duty to inform the accused of his
constitutional rights and to warn him in terms of the Judges’
Rules before questioning him. This would include informing the
accused about his right to legal representation, the right to be
presumed innocent, the right to remain silent and the right against
self-incrimination. The police disregarded these rights in the
present case by informing the accused of his rights only after his
arrest and after he had incriminated himself by pointing out scenes
and making admissions implicating him in the hunting of the five
oryx.



[10] What is also
disturbing in this case is that the witnesses were allowed to testify
about the admissions and the pointing out without the prosecutor
alerting the magistrate beforehand that he/she intended leading such
evidence. Prosecutors should ideally always do so. They should also
first lay a basis to show that such evidence is indeed admissible
before leading evidence about the contents of the admissions or the
details of the pointing out. This should be done because of the fact
that disclosing the contents of this evidence might severely
prejudice the accused. However, even if the prosecutor does not do
this, the magistrate should be alert to direct the prosecutor to do
so if he or she wishes such evidence to be admitted. The accused
should also be asked whether he has any objection that such evidence
is led. If there seems to be an objection against the admissibility
of the evidence, a trial-within-a-trial should first be held to
determine the admissibility or otherwise of the evidence.



[11] I wish to point out
that accused no. 3 was also not afforded fair pre-trial procedures.
However, this irregularity does not taint the trial as a whole. When
the evidence that he led the police to the first scene is
disregarded, there is still sufficient other evidence, as is the case
with accused no. 1, to show that he committed the crime with respect
to the one oryx.



[12] I now turn to the
question of what punishment should be imposed on accused no. 1. The
magistrate imposed a sentence of 8 months imprisonment. In response
to the third question posed (see paragraph [7], supra), the
magistrate suggested a sentence of 4 months imprisonment because the
accused did not place any mitigating factors before her and because
of the prevalence of the offence in her district.



[13] This suggestion by
the learned magistrate seems rather startling in view of the fact
that she imposed a wholly suspended sentence of four months
imprisonment on accused no. 3, who was convicted of hunting one oryx.
The only difference between the two accused is that accused no. 1 at
35 was 5 years older than accused no. 3 and that accused no 3 placed
some facts before the magistrate about his personal circumstances.
These were that he has two children aged 13 and 16 who are staying
with his mother, that he was unemployed at the time and that he had
no money for a fine. It is so that accused no. 1 stated that he did
not want to say anything in mitigation and had no witnesses to call,
because he considered himself to be not guilty. However, the
magistrate should have asked him specific questions to obtain details
about his personal circumstances. The accused could then have elected
whether to answer these questions. The magistrate took into
consideration that the accused had been in custody awaiting trial for
7 months. I have considered imposing the same sentence on accused no.
1 as that imposed on accused no. 3. However, it seems doubtful that
he will be located to inform him of the conditions of the suspended
sentence. Moreover, the accused has already served his sentence. In
the circumstances it would be appropriate to impose a short period of
imprisonment, which is backdated.



[14] The result is:




  1. The conviction of
    accused no. 1 is confirmed, but only in respect of one oryx.



  2. The sentence of accused
    no. 1 is set aside and substituted with the following sentence:




Three (3) months
imprisonment.




  1. The sentence is
    backdated to 9 May 2012.



  2. The conviction and
    sentence of accused no. 3 is confirmed.
























_________________



K van Niekerk



Judge








I agree.













_________________



S F I Ueitele



Judge