Windhoek
The failure of a magistrate in Eenhana to discharge a man, accused of theft, on the basis that there was no prima-facie evidence presented before court, as required under Section 174 of the Criminal Procedure Act, has evoked criticism from a judge in the Oshakati High Court.
Judge Herman January with Judge Marlene Tommasi concured in that the magistrate failed to either discharge Lamek Likius Shonena at the end of the State’s case, or to inform him that he can apply to be discharged because of lack of evidence against him.
Shonena was convicted on a charge of theft of a cellphone from a motor vehicle. According to the review judgment, only the complainant testified in the case and only testified about the theft and did not know the appellant.
The cellphone was also not produced in court as an exhibit and the complainant never recovered his cellphone.
The judges found that no evidence upon which a reasonable court could convict was produced and the magistrate was thus under obligation to either discharge the unrepresented accused, or to explain to him the possibility of a Section 174 application for discharge.
Instead Shonena was convicted on a charge of theft and sentenced to 36 months’ imprisonment, of which 18 months were suspended on conditions.
He then launched an appeal against both conviction and sentence and was represented by Frieda Kishi.
“The Namibian Constitution provides for a fair trial in Article 12. In my view it entails that amongst others, any accused should be able and for that matter should be put in a position to follow what is happening in a trial.
“I am of the view that the pre-printed form in relation to the rights of an accused in respect of a Section 174 discharge is not sufficient to inform any accused of their rights or on the court’s duties after the closure of the State’s case”, Judge January remarked.
According to Judge January, in this case there was no evidence on which a reasonable court could convict and he is sure Shonena did not understand the proceedings and thus elected to give evidence by virtue of the explanation given to him, in accordance with the pre-printed form.
He said the magistrate convicted Shonena on his evidence and not on the evidence produced by the State. Even on his own evidence the conviction of Shonena was not in accordance with justice, Judge January ruled.
Shonena testified that he had received a cellphone from a friend in return for money he had lent the friend, but the cellphone was faulty, which lead him to sell it.
In his view, the judge said, the trial court should have been in doubt about the identification of the cellphone the appellant testified about and he, therefore, cannot conclude that the cellphone in question was the cellphone of the complainant.
The facts of the matter are that the complainant testified that he parked his car in Eenhana on April 22, 2013 and left his bag containing his phone, laptop and N$3 000 on the front seat of his car. When he returned to his vehicle he found his personal documents lying on the seat and the phone, laptop and money gone.
The value of the phone was given as N$8 500 and the laptop as N$14 622.
The complainant further testified that the person who took the items must have opened one of the doors of the vehicle and he suspected it was either unlocked with another Toyota key or a device to de-activate the door locks.
He informed the court that he does not know who took the items and that he did not recover any of the stolen goods. He also testified that he does not know the accused.
According to the judge, at that stage it was clear there was no evidence implicating the accused. The magistrate also used only a pre-printed pro-forma to explain the rights of the appellant to either give evidence in his defense, or to remain silent.