Court name
High Court
Case number
CRIMINAL 2 of 2012
Case name
S v Oroseb
Media neutral citation
[2012] NAHC 3
Judge
Liebenberg J
Tommasi J















CASE NO.: CR
02/2012







IN THE HIGH COURT OF NAMIBIA



HELD AT OSHAKATI







In the matter between:







THE STATE







and







ANDREAS !OROSEB







(HIGH COURT REVIEW CASE NO.:
278/2011)







CORAM: LIEBENBERG,
J. et TOMMASI, J.







Delivered on: 20 January 2012











REVIEW JUDGMENT















LIEBENBERG, J.: [1]
The accused appeared in the Magistrate’s Court Tsumeb on a
charge of housebreaking with intent to steal and theft, and at the
end of a trial he was convicted as charged and sentenced to fourteen
(14) months imprisonment.







[2] When the matter came on review I
directed a query enquiring into the admissibility of evidence given
by two police officers about admissions and the pointing out of the
crime scene made by the accused in the absence of evidence that the
accused was apprised of his rights. In his response the magistrate
in two simple sentences explained that (1) the court convicted on the
evidence on record; and (2) that it did not accept the evidence about
the pointing out. Unfortunately this is not true. As born out by
the record (p 29 of the transcript) the magistrate in his sentencing
reasons remarked as follows:







“You
took them yourselves to the house of the Complainant where you
showed them where you gained entrance, broke the window and you took
the items.”







[3] The record speaks for itself and
to now contend that the trial court did not rely on the
evidence adduced at the trial regarding admissions and pointing out
made by the accused, is misleading. I accordingly accept that the
trial court, when convicting the accused, did rely on the
evidence of the two police officers who arrested him; and after
questioning him, had taken him to the crime scene where certain
admissions and pointing out were made to them by the accused.







[4] Both Sergeants Mukuwe and
Ngashipau narrated to the court how they, whilst on patrol duty, came
across the accused early one Sunday morning between 6 – 7 am
whilst carrying some duvets. Sergeant Mukuwe, to whom the accused
was known, became suspicious and decided to approach the accused.
When the accused realised this, he dropped the things he was carrying
onto the table or make-shift counter of vendors selling vegetables at
a stall. When asked about the linen he was carrying that time of the
day the accused explained that it was his and that he was on his way
to Grootfontein. Sergeant Mukuwe was not at all satisfied by the
accused’s reply and then told the accused to accompany them to
the police station for further questioning as the accused was known
to him and he did not believe the accused.



At the police station he said to the
accused that he must tell them where he got the items from and in
order to persuade him in doing so, added:





“I
will just approach Elna [owner] and I will give the things back and
talk to the owner so that they do not open a case against you.”







The record further
reflects that the questioning of the accused continued up to a point
where the accused gave in and led the officers to the complainant’s
room, where it was discovered that there was a breaking and entry.
It is common cause that the complainant was on leave in the north at
the time and after a report was made to him he returned to Tsumeb.
Only part of the goods stolen from his room (the linen), was handed
back to him by the police. It was alleged that these were the same
linen found in the accused’s possession on the day of his
arrest. I shall return to this aspect later.







[5] What is clear
from the evidence is that the accused became a suspect from the time
the two police officers started questioning him about the property in
his possession and notwithstanding the accused’s explanations
in that regard, they persisted in questioning him and insisted that
he should tell them the truth. On this score Sergeant Ngashipau’s
evidence reads that the accused
“was
refusing to tell us the truth”
whereafter
Sergeant Mukuwe employed the tactic of convincing the accused that he
would arrange with the owner of the suspect items not to press
charges once it has been returned to him, if the accused were to tell
them where he got the items from. It was only thereafter that the
accused agreed and subsequently made a pointing out of the crime
scene as well as accompanying admissions, which led to his arrest and
prosecution. There is nothing on the record showing that during
these stages of the investigation, the accused was apprised of his
constitutional right not to incriminate himself or his right to legal
representation; neither were the Judges’ rules explained to him
upon his arrest.







[6] In the
absence of evidence as to the time when the accused was actually
arrested, it would appear from the record that this only happened
after the accused admitted to having committed the offence and
pointed out the scene to the police officers. Prior to his arrest he
was a suspect and treated by the police as such. In
S
v Malumo and Others (2)
1
it was stated as per Hoff, J that:







“There
is persuasive authority (
S
v Sebejan and Others
,
1997 (1) SACR 626 (W) (1997 (8) BCLR 1086) that a suspect is
entitled to fair pre-trial procedures similar to those procedures an
accused person is entitled to. Those procedures in my view include
the right to legal representation, the right to be presumed
innocent, the right to remain silent, and the right against
self- incrimination.”







[7] In S
v Mafuya and Others (1)
2
the
Court held that an investigating officer, who had disregarded the
Judges’ Rules and failed to caution the accused before
questioning him, had unduly influenced the accused to make a
confession.



The first Judges’
Rule provides as follows:







“Questions
may be put by police men to persons whom they do
not
suspect of being concerned in the commission of the crime under
investigation,
without
any caution first being administered
.”







The second Judges’ Rule reads:







“Questions
may be put to a person …
who
is under suspicion

where it is possible that the person by his answers may afford
information which may tend to establish
his
innocence

… In such a case
a
caution should first be administered

…”







[8] Whereas the
accused was a suspect from the outset, the two police officers who
questioned him about the items in his possession and their insistence
that he must show them where he got it from and during which process
the housebreaking was discovered, did not comply with the provisions
set out above. In
Malumo
(supra)3
Hoff J stated:







“The
Namibian Constitution, indeed, does not expressly provide for the
right of an accused person or suspect to be informed of a
constitutional right, but a court of law in giving effect to
constitutional rights of such a person would interpret those
constitutional provisions meaningfully.”







And further4:







“Article
12 of the Namibian Constitution means that the entire process of
bringing an accused person to trial itself needs to be tested
against the standard of a fair trial.”







[9] When applying
the aforementioned principles to the facts
in
casu
,
I am satisfied that the admissions and pointing out of the scene by
the accused should have been ruled inadmissible evidence by the trial
court and failing to do so, constituted an irregularity, vitiating
the entire proceedings.







[10] I now return to the items found
in possession of the accused. It is common cause that the accused
was found in possession of linen only, and not with the car radio/MP4
music player; Nokia 5110 cell phone or two pairs of shows testified
about by the complainant, which were also stolen from him. In fact,
the charge against the accused only makes reference of 2 x pillows; 2
x duvets; 1 x duvet cover and 1 x bedcover. This corresponds with
the items returned to the complainant by the police as per form Pol
41. To this list of items Sergeant Mukuwe in his evidence added
another duvet cover also found with the accused; but under
cross-examination said that it was 2 x pillow cases (not
pillows). According to him this was in March 2011 while Sergeant
Ngashipau said it was in January 2011 – the latter being the
more likely version. A material difference in their evidence,
however, is that according to Sergeant Ngashipau the accused was
found with 2 x blankets and 2 x pillows only. On a leading question
put to him by the prosecutor he changed it to say that it was 2 x
duvets. Their evidence that one of the duvets was blue/green/white
striped, corroborates the complainant’s evidence, but again
differs in the sense that the complainant did not refer to pillows,
but pillow cases. To confuse matters further, neither of these two
police officers were present when the complainant’s property
were returned to him and were therefore in no position to state
whether it was the same items seized during his arrest. In my view,
there should have been doubt in the court’s mind as to whether
or not the State has succeeded in proving whether the items handed
over to the complainant by the police as per the Pol 41 form, were
the same items found with the accused. Without this uncertainty
having been cleared up, there was a possibility that what was
returned to the complainant is not what the accused was found with on
the date of his arrest.







[11] Excluding the evidence of the
police officers pertaining to the alleged pointing out and admissions
made by the accused, his possession of linen belonging to the
complainant and which were unlawfully removed from his home, would
have been the only link between the accused and the crime. The
uncertainty around this part of the evidence, however, weakens the
link to the extent that it cannot be said beyond reasonable doubt
that the accused was found in possession of the complainant’s
property.







[12] In the result, the conviction
and sentence are hereby set aside.























____________________________



LIEBENBERG, J











I concur.











____________________________



TOMMASI, J



1
2007 (1) NR 198 at 211J – 213A




2
1992 (2) SACR 370 (W)




3
At 210I-J (para [69])




4
At 211E-F (para [71])