Court name
High Court
Case number
CC 2 of 2009
Case name
S v Shipanga and Another
Media neutral citation
[2010] NAHC 46

















CASE NO.: CC 02/2009


NOT
REPORTABLE





IN
THE HIGH COURT OF NAMIBIA








In
the matter between:








THE
STATE APPLICANT








and








FANUEL
FESTUS SHIPANGA FIRST RESPONDENT





PAULUS
KAMATI SECOND RESPONDENT











CORAM: USIKU,
AJ












Heard on: 2010.06.24





Delivered
on: 2010.06.28










JUDGMENT



Application for postponement












USIKU, AJ [1] The
applicant in this matter has brought an application in terms of
section 37 (3) of the Criminal Procedure Act, Act 51 of 1977 as
amended.


The applicant has also
asked the court to grant a further postponement, in order to allow
the doctor whose report was handed in before court, to testify in
these proceedings. The applicant informed the court that the person,
a former official from the National Forensic Institute who had
testified earlier during the course of these proceedings was not the
person who had done the DNA analysis, but merely read the report by
the said doctor. The report was made part of the proceedings. The
applicant further submitted that it was realised only later that no
DNA analysis was made in respect of the said accused person. Thus an
application being made in that regard. Both counsel for the accused
persons opposed a further postponement of the case, stating that the
State as the applicant in this case had sufficient time to prepare
and as such their application must not be entertained. Also that
there was an abuse of the process on the side of the State. Further
that the accused’s right to a speedy trial be protected.


Counsel for accused 2
specifically pointed out that the State should not be allowed to have
the accused 2’s blood sample taken for DNA analysis as that had
already been done.





[2] It is common cause
that a blood sample was taken from accused 2, in the early stages of
the police investigation. It is also common cause that such sample
was never analysed as requested, apparently as the sample was left
out when other exhibits were sent out for analyzing. What is crystal
clear is that accused 2’s blood sample so far have never been
analysed.





[3] In
terms of section 37 (3) it reads “in a court before which
criminal proceedings are pending may:-



(a) In any case in which a
police official is not empowered under subsection 1 to take
fingerprints, palm-prints or to take steps in order to ascertain
whether the body of any person has any mark, characteristic or
distinguishing feature or shows any condition or appearance, order
that such prints be taken or any accused at such proceedings or that
the steps including the taking of blood sample, be taken which such
court may deem necessary in order to ascertain whether the body of
any accused at such proceedings has any mark, characteristic, or
distinguishing features or shows any condition or appearance;







(b) Order that the steps,
including the taking of a blood sample, be taken which such court may
deem necessary in order to ascertain the state of health of any
accused at such proceedings.”





[4] In this present
case, the murder is alleged to have taken place on 8
July 2007, whereafter accused 2 was injured as a result of the
accident. The State alleged that blood was found on the scene, which
belonged to accused 2. Blood sample were then taken from the scene,
though the blood samples were never taken for DNA analysis.





[5] On the other hand
the defence has objected to new blood samples to be taken from
accused 2. The reasons being that such a process will delay the
proceedings and that the State had already been given sufficient time
to prepare itself for the trial.


It appears to me that
the defence’s argument comes about because it has been brought
in the middle of this trial.





[6] The defence has
further contended that it was due to the State’s negligence
that the blood samples were never analysed for DNA.





[7] The Court was
informed by the investigating officer Sgt. Hilundwa as to how these
blood samples were left out when the other exhibits were sent out for
DNA analysis. It is also clear that the State at this point in time
had realised its shortcomings in the preparation of this trial, more
specifically its failure to have the DNA analysis done before the
trial started. I am saddened by the fact that the State’s
agents may have indeed been careless in the handling of the first
blood samples. Such carelessness cannot be condoned by this Court.
However, that alone would hardly warrant a refusal of the relief
which the State now seeks. In that regard, this Court wish to borrow
from the sentiments expressed by Curlewis JA, in R v Hepworth 1928
AD 265 at 277
, which in my view is relevant today as they ever
were.





[8] “That a
criminal trial is not a game where one side is entitled to claim the
benefit of any omission or mistake made by the other side, and a
judge’s position in a criminal trial is not merely that of an
umpire to see that the rules of the game are observed by both sides.
A judge or an administrator of justice he/she is not merely a figure
head, he or she has not only to direct and control the proceedings
according to recognised rules of procedure, but to see that justice
is done.”





[9] Thus the court’s
duty is to act as an administrator of justice with the main aim being
to establish the truth. In exercising this function, the court must
consider and balance the fundamental rights and interests of the
accused with that of the State and the prosecution but also with the
fundamental rights and interests of the victim. The aforesaid
balancing function must however, always be carried out subject to the
specific constitutional principles that an accused is presumed to be
innocent until proven guilty beyond all reasonable doubt, in a fair
trial.





[10] In my view, it is
clear therefore that even during the trial itself the State may seek
a blood sample from an accused as such application will not render
such an exercise to be unlawful or unreasonable. Furthermore the
taking of blood samples is a relatively painless, which has become
wide spread and also a vital tool in the administration of the
criminal justice system.





[11] There is already
evidence before this Court, that the doctor who had done the DNA
analysis on the other exhibits could not come in in order to testify
in these proceedings, that was the reason why the report was
forwarded to the National Forensic Institute, which in turn had it
handed in before the court. In my view I find it highly unlikely
that the author of the report before court will avail herself or
himself at court, when requested to do after the proceedings had
already started. Also that, that would cause further delay in the
prosecution of this case before court. I therefore decline to grant
such an application for the postponement, specifically for the doctor
to avail herself/himself at court at this stage in time.





[12] Finally I advice
that the investigating officer Sergeant Hilundwa to take such steps
in conjunction with the medical officer responsible for the taking
of blood samples, to take a blood sample from accused 2 in order to
ascertain whether such blood sample has any mark, characteristic or
distinguishing features, by means of a DNA analysis.





[13] This order is with
immediate effect, before the court can proceed with the trial.

















____________


USIKU, AJ









































ON BEHALF OF THE
STATE: MS NDLOVU








Instructed by:
OFFICE OF THE PROSECUTOR-GENERAL











ON BEHALF OF ACCUSED
NO. 1 MR NAMANDJE



ACCUSED NO. 2 MR KWALA








Instructed by:
DIRECTORATE OF LEGAL AID