S v Awa-Eiseb ( CR 55/2008) [2008] NAHC 144 (03 July 2008);

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Full judgment


Case No.: CR 55/2008


IN THE HIGH COURT OF NAMIBIA

In the matter between


THE STATE

versus

SALMON AWA-EISEB


[HIGH COURT REVIEW CASE NO.:432/2008]


CORAM: PARKER, J et MANYARARA, AJ

Delivered on: 2008 June 2

__________________________________________________________________

REVIEW JUDGMENT:

PARKER, J.:

[1] The accused was charged before the Windhoek Magistrate’s Court on one count of attempted murder. He pleaded not guilty; he was tried and found guilty and sentenced accordingly.


[2] I asked the learned Magistrate to respond to my remarks:

I am unable to review this case as the record stands. It is not clear at what point the State closed its case, and what happened after that – not even the learned Magistrate’s handwritten record goes any further than his s. 174 decision.


[3] The learned Magistrate responded that he was unable to reconstruct the case record. He therefore “humbly requests for the proceedings to be quashed due to inability to reconstruct the records.” I respectfully agree with the learned Magistrate. The absence of a record of proceedings of a trial of an accused is an irregularity. (See S v Sageus and others 2004 (5) NCLP 102 (HC); S v Alvert 2005 (2) NCLP 1; The State v Johannes Matlatha, The State v Tjipo Tjivikua & another Case No.: CR 38/2008, Case No.: CR 39/2008 (Unreported).)


[3] It follows that in the circumstances, the interests of the administration of justice will be served by the setting aside of the conviction.


[4] In the result, the following order is made:


  1. The conviction and sentence are set aside.


  1. The Prosecutor-General is at liberty to prosecute the accused de novo, if she so desires.



________________________

PARKER, J


I agree.


________________________

MANYARARA, AJ

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