TUHALENI KAKOLOLO v THE STATE
CASE NO. CA 5/2003
Maritz, J. et Mtabanengwe, A.J.
Criminal procedure – recalling of witnesses – wide discretion afforded to court – power to refuse request to be exercised sparingly - when application frivolous or part of delaying tactic also to discourage repetition or exclude irrelevancies
Practice – appointment of legal representative – once appointed counsel has complete authority over the conduct of the case on behalf of accused, the mode of conducting it and all that is incidental to it – trial not to be conducted at same time partly by counsel and partly by accused – court will generally accept that counsel will conduct accused’s defence professionally and with requisite degree of proficiency – very strong case to be made out before a decided case can be reopened on ground of error of judgement on part of counsel
CASE NO. CA 5/2003
IN THE HIGH COURT OF NAMIBIA
In the matter between:
TUHALENI KAKALOLO APPELLANT
THE STATE RESPONDENT
(HIGH COURT APPEAL JUDGMENT)
CORAM: MARITZ, J. et SILUNGWE, J.
Heard on: 2003-03-27
Delivered on: 2005-05-26
MARITZ, J.: The appellant was one of four accused charged in the Regional Court with the crimes of robbery with aggravating circumstances and attempted murder. The other three accused were discharged at the close of the State’s case but the appellant was convicted on both counts and sentenced to twenty years imprisonment. This appeal lies against the convictions and sentence.
Although not admitted by the appellant at the commencement of the proceedings, it was not disputed during the trial that an armed robbery occurred on 24 April 1999 at Tré Supermarket in Windhoek. Mr Tré, the proprietor of the supermarket situated on Independence Avenue, was about to depart to bank the day’s takings of some N$160 000-00 when the robbery occurred. He asked his cousin’s 14-year old son, Roberto Isaaks, to open the gate giving access to the premises as he was walking towards his car which was parked in a garage. After Mr Isaaks had opened the gate, he was suddenly pushed into a corner by one of the robbers as two more of the robbers gained access to the premises through the open gate. Mr Tré only became aware of their presence as he was opening the front driver’s door of his Nissan sedan. The robber, whom he later identified as the appellant, was at that stage positioned on the opposite side of the vehicle, leaning over the roof whilst pointing a handgun at Mr Tré. Whilst he threatened to shoot Mr Tré the other robber grabbed hold of the bag containing the money, struck Mr Tré on the head with his handgun and demanded the bag to be handed over to him. Once in possession of the bag he moved backwards whilst pointing the gun at Mr Tré and repeatedly threatening that he would shoot him. When he was about four metres away from Mr Tré he fired a shot. Mr Tré, anticipating that the shot was about to be fired, bent forward the very moment a bullet struck him in the left shoulder.
Mr Isaaks, who had observed these events, corroborated many of Mr Tré’s observations during the trial. He also testified that the robber who had been opposite Mr Tré had also fired a shot when Mr Tré had refused to release the money bag. He also grabbed hold of the bag and, once he had it in his possession, fired a further shot at Mr Tré. The robbers ran to a white Toyota Sprinter parked just outside the premises and drove off at speed. Mr Tré was subsequently taken to hospital by ambulance and Mr Isaaks remained behind to give a statement to the police and to point out the movement of the robbers as he had observed them.
The only real issue in dispute during the trial was whether or not the appellant had been involved in the robbery. He denied such involvement and proffered an alibi: maintaining throughout during his questioning and the trial that he had been in Owambo (several hundred kilometres to the north of Windhoek) at the time of the robbery attending an engagement party. His evidence on that point was corroborated by his wife who testified that she had accompanied him on the visit. The prosecution maintained that the alibi was false and set out to prove the appellant’s presence at the robbery by adducing evidence (a) that the appellant had been identified by both Mr Tré and Mr Isaaks at an identification parade, and (b) that an identifiable palmprint (later linked to the appellant) had been captured by means of folien from the rear boot spoiler of Mr Tré’s Nissan sedan.
The reliability of the appellant’s identification by Mr Tré at the identification parade was attacked mainly on two grounds: Firstly, that he also identified another person at the parade, commenting at the time that he was sure that that person was one of the robbers. According to the prosecution the person was not. Secondly, that when the appellant’s alibi was put to Mr Tré during cross-examination and he was asked to comment on it he said: “Well, if he was in Owamboland, if he was not here, then I am wrong. So I don’t recognise him good enough.” Relying on this statement counsel for the appellant submitted that Mr Tré was clearly not convinced that the appellant had indeed been one of the robbers. Moreover, counsel argues, if it is accepted that he had made a mistake with the identification of the one person he had been convinced of, the probabilities are much greater that he made a mistake with the identification of the appellant – being rather tentative about that identification as his response under cross-examination shows.
The appellant also attacked his identification by Mr Isaaks. When Mr Isaaks pointed out the appellant at the identification parade, he stated that he thought the appellant had been one of the robbers. That identification too, the appellant’s counsel reasons, was done without conviction. That being the case, counsel further submitted, the subsequent dock-identifications of the appellant by these two witnesses should not be accorded any weight. The veracity and reliability of the appellant’s initial identification by the two witnesses could not be improved by his subsequent identification at the trial. In court he appeared together with the three other accused in a highly compromised position and, given the preceding consultations between the prosecutor and his witnesses, there was a real possibility of suggestion. I shall later in this judgment again touch on the weight to be accorded to the appellant’s identification.
The centrepiece of the prosecution’s case against the appellant was, however, the palmprint of the appellant allegedly found on Mr Tré’s vehicle. It was not suggested in cross-examination or in argument that the print had been left by the appellant in circumstances unrelated to the robbery. It was also not suggested under cross-examination that Sergeant Kavindja, the fingerprint expert called by the State, was not qualified to lift and compare the palmprint and to give evidence about the similarities between the print lifted and the ones later obtained from the appellant for purposes of comparison. His conclusions that there were a sufficient number of points of similarity between the prints and that, regard being had to those similarities, the print allegedly lifted from the vehicle was that of the appellant and of no other person, were also not challenged. I pause here to mention that the appellant was represented by a legal practitioner at all relevant times during the trial until the stage at which prosecution closed its case.
In the course of his testimony the appellant made the startling allegation that the palmprint was not obtained from Mr Tré’s Nissan sedan as Sergeant Kavindja had testified. It was, he said, obtained from a Toyota Corolla vehicle which was the subject matter of another Police investigation against him. He strongly suggested that the police had conspired to incriminate him in the armed robbery and sought to support these disturbing allegations with the following evidence.
He testified that he had been informed by the investigating officer, Constable Nangolo, on 27 July 1999 that he could not be released on bail because another case was being investigated against him. Nangolo told him that his fingerprints had been found on a vehicle which was the subject matter of that investigation. He was taken to the police station later the same day and a police docket was opened against him by Sergeant Dionisiu in that case. He was charged and appeared in the Magistrate Court on 28 July 1999 when the case was postponed for further investigation. The case was later transferred to the Regional Court under Case No. R/C 22/1999 and the CR number of the police docket relating to that case was 747/01/1999. During April 2000 the appellant in writing asked for, and obtained, access to the contents of that docket. He found that some of “the fingerprint evidence was not there, it was removed”. He also came across the sworn statement of one Sergeant “Jim” or “Tom” which mentioned that he had taken the appellant’s fingerprints and had compared them with the palmprint of the appellant’s left hand on 12 July 1999.
The appellant found the missing “fingerprint evidence” from the docket with CR No. 747/01/1999 and the fact that it co-incidentally also related to a palmprint of his left hand (as in this case), very suspicious. As a consequence he caused his wife to make certain enquiries from the prosecutor about the docket contents but she was told by the prosecutor that he would explain the matter to the appellant at his next appearance on 22 May 2000. On that date he found the prosecutor talking to his legal representative and was later informed by his legal representative that the “fingerprints” mentioned in that case were found on a Toyota Corolla. The appellant did not dispute that his prints could have been on the Toyota because it had been at his house. The case was in any event withdrawn against him the same day. These events led the appellant to believe that the palmprint referred to in the evidence of Sergeant Kavindja had not been lifted from Mr Tré’s vehicle but that it was the palmprint referred to in the statements contained in police docket CR 747/01/1999.
Surprisingly though none of these allegations were put by the appellant’s legal representative to Sergeant Kavindja during cross-examination. As it were, the cross-examination of Sergeant Kavindja by appellant’s counsel was rather brief. Counsel enquired whether the originals of all the prints had been handed up as exhibits. Thereafter he confirmed that three more prints had been lifted from the vehicle in question but that they could not be matched with any specific person. He also confirmed with the witness that one Sergeant Daniel Mouton had assisted him when he had compared the palmprint which had been lifted from the Nissan sedan with those subsequently obtained from the appellant and ascertained from the witness that aluminium powder was used to lift the print.
It is not apparent from anything said by the appellant’s legal representative that he had been aware of the alleged conspiracy. In a letter date stamped 12 February 2001 to the presiding regional magistrate the appellant alleges that he had expected his counsel to canvas that aspect with Sergeant Kavindja during cross-examination but that “(his) counsel was too reluctant”. It is because of that failure, the appellant maintained, that he terminated his counsel’s mandate. Some corroboration for the appellant’s allegation that his counsel had been briefed about the claimed irregularity is to be found in a statement made by Mr van Vuuren on 19 September 2000 shortly after the State had closed its case but before the matter was adjourned to 29 November 2000. He recorded that the appellant had elected to testify in his defence and that he also wished to call his wife and one Sergeant Mouton “of the fingerprints department”. When the Court enquired about the purpose of Sergeant Mouton’s evidence, appellant’s counsel indicated that it would be “regarding the fingerprints that was taken at the scene.” That was indeed also the last occasion on which appellant used the services of legal counsel during the trial.
The appellant’s case was postponed several times between 29 November 2000 and 27 March 2001. On 19 March 2001 the appellant handed up a letter to the presiding regional magistrate in which he stated, amongst others, the following:
“2. I have also once made application for re-call the following three State witnesses who has already testified: They are, the investigator Constable Nangolo, Finger/palmprints expert, Constable Kavindja and official Sergeant D J Mouton.
I assured the Court that I need the abovementioned witness because I do have outstanding questions to them. Your Worship, during my trial on 19th September 2000, I was represented, but my legal representative has failed to pose the relevant questions to the concerned witness pertaining fingerprints evidence in this case. He has also failed to reveal all the possible irregularities which might used in this case before the Court.”
The Magistrate immediately informed him that he was not prepared to recall witnesses as the appellant had been “properly assisted by an attorney during the whole of the trial until all the witnesses for the State had testified”. This ruling by the Magistrate, it must be noted, does not appear in the transcribed record of the trial but was only given by the Magistrate after this Court had enquired from him about the background of an opening statement he had made when the appellant’s trial resumed on 27 March 2001. On that occasion the Magistrate said the following:
“And also you wrote a letter to request that a witness, I believe it is the fingerprint expert, must be recalled but I have already informed you that I am not prepared to recall that person. He testified and he was properly questioned by your lawyer and I am not going to recall him to repeat his expert evidence.”
As a general proposition, the Magistrate was, of course, entitled to accept that once the accused entrusted his or her legal representative with the conduct of his defence in criminal proceedings, counsel had “complete authority over the suit, the mode of conducting it, and all that is incidental to it – such as withdrawing the juror, calling no witnesses, or selecting such as, in his discretion, he thinks ought to be called, and other maters which properly belong to the suit and the management and conduct of the trial”. (Per Pollock C B in Swindfin v Lord Chelmsford, 157 ER 1436 at 1449). This approach accords with what, Schreiner JA described in R v Matonsi, 1958(2) SA 450 (A), “the importance and high status of the advocate” and the fact that “trials cannot be conducted partly by the client and partly by counsel”.
Generally, the Court will accept that counsel will conduct his or her client’s defence professionally and with the requisite degree of proficiency required by the nature of the proceedings. As was correctly pointed out in S v Nkhise; S v Masia; S v Jones; S v Le Roux 1988(2) SA 868 (A) at 875D-E, “it would be impracticable if not impossible, for the Court to attempt to determine, by applying some norm of competence (and by way of an enquiry into the merits of the case and counsel’s conduct thereof) whether he in his defence of the accused has been proficient”, when after his conviction, an accused person “seeks to attribute his misfortune at having been convicted not to his own guilt, but to his counsel” (per Horn AJ in S v Bennett, 1994(1) SACR 392 (C) at 398H).
The rule is however not an inflexible one (See R v Muruven, 1953(2) SA 779 (N) at 780) but “a very strong case must be made before a decided case can be re-opened on the ground of an error of judgment on the part of the legal representative”. This approach was echoed by Van Oosten J in S v Chapedi, 2004(1) SACR 477 (W) at 484D. He went further to hold that, subsequent to 27 April 1994, section 25(3) of the South Africa Constitution required criminal trials to be conducted in accordance with “notions of basic fairness and justice” and for the Courts hearing criminal trials and criminal appeals “to give content to those notions”. He further held that if a person was not properly and adequately represented at a trial it constitutes a material irregularity in the proceedings (at 486A-C).
It is not necessary for us to consider whether, in the constitutional dispensation applicable in Namibia, the majority view expressed in Chapedi’s-case should find favour. This is also not a case where the appellant waited until after the conclusion of the trial to question the manner in which his legal representative had chosen to present his defence. The appellant terminated his counsel’s mandate shortly after he had omitted to challenge the origin of the palmprint used as circumstantial evidence against the appellant. From that point in time onwards, the appellant persistently referred to the claimed irregularity and sought leave to recall certain state witnesses on that point for further examination.
The Court has a wide discretion in dealing with applications to allow the recall of witnesses who have testified earlier in the proceedings (see: S v Shezi, 1994(1) SACR 575 (A) at 577G). It was, however, pointed out in S v Kondile, 1974(3) SA 774 (Tk) at 775 that:
“The refusal of a request to recall a witness for cross-examination or even to further cross-examination is a power that should be exercised by presiding officers sparingly and then only in the rare cases where it is clear to the presiding officer that the request is made frivolously or as part of deliberate delaying tactics designed to secure for the party concerned or his attorney some unfair advantage over the opponent.”
The limitation of a presiding officer’s discretion to refuse applications of that nature only if “made frivolously or as part of deliberate delaying tactics” as suggested in Kondile’s case was criticised in S v M, 1976(4) SA 8 (T) where Cillie JP recalled the judgment of Ogilvie-Thompson JA in S v Green, 1962(3) SA 886 (AD) at 889 to the effect that an application of that nature may also be refused “to exclude irrelevancies and discourage repetition” and that of Schreiner, JA in R v Gani 1958(1) SA 102 (AD) at 108 that –
“a trial Court must be accorded all proper powers to control the length to which parties should be permitted to go in investigating matter of a subordinate nature on the fringe of the case; it is of some importance that a trial should not be unduly prolonged by an over-elaborate examination of minute details which cannot materially affect the central issue.”
So too, did Heher, AJA decline to fault the Magistrate’s refusal to recall a vulnerable witness (the youthful complainant in a rape case) and thus to subject herself a second time to the indignity of having her private life laid bare without a real prospect that the interest of justice would be served by her recall in circumstances where the accused’s version could be rejected as false beyond a reasonable doubt.
Given the appellant’s instructions to his counsel that he had not been in Windhoek on the day of the robbery, he was entitled to expect of him to take issue with the State witnesses not only on the matters of identification but also with Sergeant Kavindja’s evidence that he had lifted the appellant’s palmprint from the victim’s vehicle. Sergeant Kavindja testified that he had made contemporaneous notes on the reverse side of folien on which the palmprint had been captured. They include particulars of the IR number, the date and time on which the print was lifted and particulars of the place and position where the print was found on the vehicle. He further testified that not only had he signed it, but also had Mr Roberto Isaaks co-signed it in his presence.
Mr Barnard, appearing for the appellant, was quick to point out in argument that the folien in question was not signed by Mr Isaaks as Sgt. Kavindja had testified but by one “Tré”. He also pointed out that, next to the signature, the imprint was endorsed with the words “sign of owner’s son”. Mr Isaaks, we know from the evidence, is not the son of Mr Tré – he is the son of Mr Tré’s cousin. Mr Isaaks surname is also not Tré and there is no reason why he should sign the imprint as “Tré”.
These are inconsistencies which the appellant was entitled to canvas in cross-examination with Sergeant Kavindja. As long as they remained unexplained, they tend to lend credence to the appellant’s contention that Sergeant Kavindja’s evidence about the origin of the palmprint is suspect.
Moreover, if another palmprint of the appellant was lifted in the course of another investigation during or about the same period, the appellant was entitled to examine the possibility of intentional or inadvertent confusion by identifying the palmprint lifted from one vehicle as one lifted from another.
The signature of one Tré on the reverse side of the folien used in evidence against the appellant raises critical questions about the authenticity of the folien that remained unanswered, in particular regarding the date and place where it was obtained and the vehicle from which it was obtained. These issues are material to the case and cannot, without more, be dismissed as irrelevant, marginally relevant or speculative. It could also not be dismissed as a ruse to delay finalization of the trial. The witness was a police officer from Windhoek who had previously testified in the case and there was no suggestion that he was for some or other reason unavailable. The appellant had given due notice of his intention to move an application to recall that witness and, had he been recalled, it would not have caused any significant delay in the trial. In any event, the delay that might have resulted as a direct consequence of his further evidence would certainly have been justified to clarify the appellant’s concerns in the interest of justice and fairness: the evidence of Sergeant Kavindja about the signature appearing on the reverse side of the folien and on the origin of the palmprint appearing on the face thereof, lies at the heart of the circumstantial evidence against the appellant – it is the very same evidence which constitutes powerful corroboration of the appellant’s identification by the victim and one of the witnesses. Hence, it would have been essential to the just decision of the case as contemplated in Section 167 of the Criminal Procedure Act, 1977 to allow the appellant’s application to have Sgt. Kavindja recalled. The Magistrate should not have dismissed it simply on the basis that the appellant was bound by his legal representative’s failure to challenge those aspects in the course of cross-examination.
I have a further difficulty with the manner in which the Magistrate dealt with the applicant’s application. At the close of the State’s case the appellant’s counsel indicated that the appellant intended to call Sergeant Mouton. In his application to the Magistrate to recall certain State witnesses, the appellant included the name of Sergeant Mouton. As Mouton had not testified previously, the appellant was at liberty to call Mouton as a witness for the defence without leave of the court but he wrote the letter under the mistaken impression that he had to obtain leave of the Court to examine Sgt. Mouton. The Magistrate dismissed the application without correcting the appellant’s mistaken view and without informing him of his right to call Mouton in the course of the defense’s case. Instead of enlightening the appellant, who was not legally represented, of his right to call Sergeant Mouton or at the very least, enquiring from him whether he still wanted to call him (given the earlier indication by his legal representative of his intentions to that effect), he left the appellant under the impression that he could not (re-)call Mouton. A Magistrate’s duty to assist an unrepresented accused in the interest of fairness and justice is so well-documented in judgments of this and other jurisdictions that I do not need to restate the obvious.
For the reasons I have given, the Magistrate’s refusal to allow the appellant’s application to recall Sergeant Kavindja for further cross-examination and allowing the appellant to labour under the misapprehension that he was not entitled to call Sergeant Mouton as a witness, constitute material irregularities in the proceedings severely prejudicing the appellant and substantially detracting from the degree of fairness with which that court a quo is constitutionally charged to conduct a criminal trial. In the result the appellant’s conviction and sentence cannot be allowed to stand.
In determining which order should be made to address these irregularities, the Court cannot disregard the weight of evidence adduced at the trial against the appellant. He was identified at an identification parade by both the victim of the robbery and attempted murder as well as another eyewitness who had observed the incident from close by. Given the order I propose to make, it would be inappropriate to analyse the evidence of those witnesses and pronounce on the reliability and credibility of their observations. The same applies to the evidence of the appellant and his wife. Suffice it to say that, on the whole (and even if the evidence of the palmprint is to be disregarded), a strong prima facie case had been established against the appellant. I therefore deem it inappropriate to simply allow the appeal (with the consequent unconditional release of the appellant from custody) without giving further directions as to the conduct of the case as contemplated in section 304(2) read with section 309(3) of the Criminal Procedure Act, 1977.
In the premises the following order is made:
The appellant’s conviction of the crimes of robbery (with aggravating circumstances) and attempted murder and the sentence of twenty (20) years imprisonment imposed by the Regional Court, Windhoek, in Case No. R/C 203/1999 are set aside.
The case is remitted to the Regional Court, Windhoek, and shall be re-enrolled in that court –
on a date not later than fourteen (14) days from the date of this order;
before a Regional Magistrate other than the one who had presided at the trial which is the subject matter of this appeal.
The appellant shall remain in custody until the date of his appearance pursuant to the re-enrollment.
The Regional Magistrate before whom the case is re-enrolled shall thereafter dispose of the matter in accordance with law and, in the event of the appellant’s retrial and conviction shall, in the determination of an appropriate sentence, take into consideration the period for which the appellant has been incarcerated as a trial-awaiting accused and the period of the imprisonment served pursuant to his convictions set aside in paragraph 1 of this order.