High Court sets aside burglary conviction

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New Era Newspaper Namibia
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Windhoek

Two Oshakati High Court judges set aside a 30-month conviction of Nanghenda Simon Plota on a charge of housebreaking and theft when the court reviewed his appeal and ascertained the Oshakati circuit magistrate had failed to secure crucial defence witnesses during trial.

High Court judges Marlene Tommasi and Herman January set aside the conviction and sentence of Plota after they found that his trial was not fair.

The legal representative of Plota withdrew an appeal he lodged against the conviction and sentence after he read the trial record, and instead asked the High Court to withdraw a certificate the High Court issued that the proceedings were in accordance with justice.

According to legal aid lawyer Phineas Nsindano, who was instructed to handle the appeal on behalf of Plota, the whole trial was a farce as the presiding magistrate miserably failed to safeguard the constitutional rights of his client.
Judge Tommasi in concurrence with Judge January agreed and granted the request on the basis that the presiding magistrate allowed hearsay evidence in the trial.

Plota was arrested after he was found in possession of a laptop alleged to have been stolen from a house in Oshakati. He however had an explanation for being in possession of the laptop and other items stolen during the robbery.
According to him the items were brought to his house by a certain Thomas Shivute while he was not at home.

Judge Tommasi further stated that even though the accused admitted to being in possession of the “stolen laptop” he had an explanation as to why he was in possession of the laptop and the magistrate did not afford him the opportunity to prove his explanation.

The judges found the magistrate relied on hearsay evidence from a female police officer who testified about information she received from the “girlfriend” of the accused that she observed him leaving their house with a black bag, a chicken and a laptop.

However, the judges said, the prosecutor did not call the so-called girlfriend to confirm or deny the allegations and the magistrate let it slide. The judges further said other material witnesses who could have corroborated the evidence of the “girlfriend” were also not called and the evidence thus constituted “hearsay” on the part of the police officer.

The police officer who was first on the scene testified that she called other police officers who arrested the accused while in possession of the alleged stolen laptop on the streets. These officers were however not called to testify – again constituting hearsay on which the magistrate relied for the conviction. “It remains legally impermissible for a court to rely on such evidence,” the judges found.

According to judges Tommasi and January the magistrate should have made every effort to bring “Shivute” to court to either confirm or deny that he was the one that instructed Plota to bring the laptop to him. They cited Section 79 of the Criminal Procedure Act that stipulates: Where an accused desires to have any witnesses subpoenaed, a sum of money sufficient to cover the costs of serving the subpoena shall be deposited with the prescribing officer of the court, or where he satisfied the court that he is unable to pay the prescribed fee and where such a witness is material to his defence the presiding officer may at his discretion subpoena such witness.

Since Plota wanted the witnesses to testify in his defence and the investigating officer merely indicated he was unable to secure the witnesses, the court’s obligation was to enable the accused to secure the testimony of such witnesses.
“The failure of the magistrate in this case to enquire into the reasons for non-service resulted in a miscarriage of justice, given the importance of these witnesses for the defence,” the judges explained as they set aside the conviction and sentence.

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