Court name
High Court
Case number
CC 11 of 2010
Title

S v Adaumbwa (CC 11 of 2010) [2012] NAHC 16 (02 February 2012);

Media neutral citation
[2012] NAHC 16
Coram
Tommasi J













CASE NO.: CC
11/2010


IN
THE HIGH COURT OF NAMIBIA


HELD
AT OSHAKATI






In
the matter between:






THE
STATE


and



ABISAI NDAUMBWA

…....................................................................ACCUSED



CORAM:
Tommasi J



Heard on: 19
January – 27 January 2012



Delivered on: 2
February 2012








RULING –
TRIAL-WITHIN-A-TRIAL



TOMMASI J:
[1] The accused
herein was charged in the main trial with murder; housebreaking with
intent to rob with aggravating circumstances as defined in section 1
of Act 51 of 1977 and robbery with aggravating circumstances as
defined in section 1 of Act 51 of 1977. The State applied to hand in
the warning statement; a confession; the record of the proceedings in
terms of section 119 of the CPA
1
in the district
court; to lead evidence of pointing out by the accused; and
admissions made by the accused. The defense objected to the
admissibility of the evidence.








[2] The accused
disputed the fact that he pointed out any items.
This
ground is based on a factual dispute which should be dealt with in
the main trial. The accused however also challenged the admissibility
of the evidence on the ground that same was not made freely and
voluntarily and that his constitutional rights were infringed.
Counsel for the State submitted in argument that due to the fact that
the Court did not allow the leading of the evidence on the disputed
fact or allowed cross-examination of the accused in this respect, it
was unable to test the credibility of the accused on his allegation
that he did not point out anything.








[3] After much
deliberation the Court concluded that justice dictates that the State
be afforded the opportunity to lead evidence on the factual dispute
i.e the contents of the pointing out and to first adjudicate the
factual dispute. The outcome of this dispute would determine whether
the Court have to re-visit the admissibility of the evidence. The
Court thus would allow the State to lead evidence on the disputed
pointing out and reserves it ruling on the admissibility of this
evidence in its judgment in the main trial.








[4] No evidence
was led on any admissions made admissions and the Court is therefore
unable to give a ruling in respect hereof as well. The accused is at
liberty to object to the admissibility of such admissions made as and
when this evidence is led.








[5] It is the
ruling of this Court that the confession and the record of the
proceedings in terms of section 119 of the Criminal Procedure Act be
admitted into evidence, reasons to follow.








[6] The State
abandoned their application to have the warning statement admitted in
to evidence and under these circumstances no ruling is made in
respect hereof.








[7] In the
premises the following order is made:



The State is
allowed to lead evidence of the pointing out and admissions;



The confession and
the record of the proceedings in terms of section 119 of Act 51 of
1977 is declared admissible as evidence in the main trial.













________________________



Tommasi J











1Criminal
Procedure Act, 51 of 1977