Court name
High Court Main Division

S v Kennedy (6) () [2020] NAHCMD 377 (25 August 2020);

Media neutral citation
[2020] NAHCMD 377






Case Title:



Case No:

CC 1/2018

Division of Court:


Heard before:


Date of hearing:

14 JULY 2020

Delivered on:

25 AUGUST 2020

Neutral citation: S v Kennedy (CC 1/2018) [2020] NAHCMD 377 (25 August 2020)

The order:


Having heard Mr Isaacks, counsel for the applicant and Ms Nyoni, counsel for the respondent and having read documents filed of record:




The application is dismissed.


Following below are the reasons for the above order:


[1]   The applicant is cited as accused one in a criminal trial currently pending in this court.


[2]   The indictment served on the applicant and his co-accused lists a total of 11 charges which include the crimes of kidnapping, attempted murder, rape and defeating the ends of justice, amongst others.


[3]   I have before me an application brought by the applicant in which he seeks the following relief:


‘1.   State to provide accused one within 10 days of court order a motivated docket index containing –


a. An itemized description of each document in original case docket herein;


b. An itemized description of any document in original case docket to which accused one is denied access (if any);


c. A statement under oath disclosing the basis upon which access is denied to any document in the original docket.


2.   State to within 10 days after delivery of the docket index as per para 1 above permit legal practitioner of accused one to inspect and/or audit the docket contents in possession of the State.


3.   Further and/or alternative relief.’


[4]   The Notice of Motion is accompanied by a founding affidavit deposed to by the applicant.


[5]   The State opposes the being relief sought and filed a Notice of Opposition which reads as follows:


‘Kindly take notice that the State intends to oppose the application on the following grounds:


1. The application and the entire relief sought in the applicant’s Notice of Motion has no proper factual and legal basis whatsoever.


2. The application is but part of a calculated, persistent and improper scheme to evade his criminal prosecution by delaying, disrupting and derailing the scheduled criminal trial taking off through this and other merit-less court applications.


3. The First Accused’s above-referred plan, if allowed by this Honourable Court, would severely prejudice the State’s timeous and proper criminal prosecution of the first Accused and his co-accused according to law.’


[6]   No affidavit accompanied the Notice of Opposition filed by the State.


[7]   When the matter was called, counsel for the applicant, added, without any opposition, a new string to his bow, in as much as he requested that the respondent should also disclose the contents of the investigation diary for the year 2015. Much of the debate on this score concerns a statement purportedly made by one of the complainants, a certain Ms G.


[8]   The author of that statement is an issue that is now hotly being contested as the State alleges that the applicant was instrumental in one way or another in producing that statement, which the applicant denies. This allegation forms the basis of a charge of defeating the ends of justice, which is listed as count 7 in the indictment.


[9]   The applicant admits that the statement was disclosed by the State, together with the other statements and documents in the police docket.


[10] In Mathias Shiweda v The State and Others NAMHC, CC 27/2008, this court dealt with the issue of disclosure of the investigation diary, and of particular relevance are paragraphs 13, 14, 15 and 16 of the judgment. The relevant portions read as follows:


‘13. Applicant who seeks to establish the right to disclosure of the investigation diary bears the onus of proof that the refusal of the second respondent to disclose the diary infringes his right to a fair trial…

14.  Applicant’s case rests purely on speculation that there might be information in the diary that might assist him in preparing his defence. There is absolutely no evidence how the documents disclosed fails to assist the applicant in the preparation of his case nor is there evidence how the information in the diary would assist the applicant. Applicant fails to make a case in the founding affidavit and for that reason alone the application should fail.

15.  I now turn to consider whether the words “information contained in the police docket” should be understood to embrace the investigation diary. In my view the words must be read down to give them a restrictive/limited meaning of referring to the witnesses’ statements and relevant documents relating to the case prepared by the prosecution against the accused. In all the foreign authorities cited in the Scholtz matter, the words used in reference to the disclosure of statements, are “material documents or information”, relevant material, ie. Evidence which tended either to weaken the prosecution or to strengthen the defence case, witnesses’ statements, relevant evidence, material evidence which the prosecution gathered and from which the prosecution have made their own selection of evidence to be led; documents that are material or relevant to the offences with which the accused is charged; all relevant information. In the case of R v Heikel (Ruling No. 8) 5 CRR (2d) 362 referred to at 225B in the Scholtz matter it enumerates classes of documents required to be produced for discovery but the investigation diary is not one of them. It is my view that, that is the case for the reason that an investigation diary is not a relevant, evidence or information for disclosure.


16.  Thus, the words “information in the police docket” must read to mean only relevant material documents/information including witnesses’ statements whether or not the prosecution is going to use the information...’


[11] In applying the approach adopted and the principles apparent from the relevant passages, I remain unpersuaded that the applicant is entitled to the disclosure of the investigation diary. He simply fails to make out any case for that relief. The applicant is in possession of the contested statement, and if as part of his defence and the preparation for it, he contends that the author is Ms G, he can have the document examined by an expert if need be. I do not understand how the investigation diary will assist him in the preparation of his defence, or hinder the attainment of a fair trial.


[12] There is no obligation on the State to provide an itemized description of each document contained in the police docket. It is sufficient that the statements and documents in the police docket are disclosed to the accused and there is no room for allowing an inspection or audit of the police docket. The premise from which the applicant proceeds is based entirely on speculation and not fact.


[13] Consequently, the application is dismissed.


Judge’s signature:

Note to the parties:




Not applicable.




B B Isaacks


Isaacks & Associates Inc., Windhoek


I Nyoni


Office of the Prosecutor-General, Windhoek