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Conviction overturned for lack of evidence

2019-02-05  Roland Routh

Conviction overturned for lack of evidence

WINDHOEK – The judgment of a man convicted of housebreaking with intent to steal and theft at the Outapi Magistrates’ Court was overturned and his four-year imprisonment sentence set aside by two judges of the Oshakati High Court. The man, Onesmus Embula, was only convicted on the strength of a warning statement that was not properly admitted in the trial.

Oshakati High Court Judge Herman January, with Judge Marlene Tommasi concurring, found that the requirements for admission of the warning statement were not complied with. Judge January said the warning statement – which was disputed – was admitted by the mere production thereof and it was not explained to Embula that the statement may be objected to if certain requirements are not complied with. 

“The appellant raised that he was assaulted and the content of the warning statement was not what he told the police officer,” Judge January emphasized. 

Embula was convicted with a Simeon Edmund Ashilungu in August 2017 and sentenced to four years, one year of which was suspended for four years on condition that he is not convicted of the same offence. 

Aggrieved by the conviction, Embula, who was unrepresented at the time, lodged an appeal against conviction and sentence and at the same time applied for legal aid. He was granted legal aid in 2018 and his lawyer, Simson Angora, withdrew the appeal and lodged a fresh appeal with an application for condonation. Public Prosecutor Teenage Geese did not oppose the condonation and, although he opposed the appeal, he conceded that apart from the disputed warning statement not much evidence on which to convict existed. 

The arrest was made after a China shop in Onesi was broken into and items worth N$9,598 were stolen. Embula was arrested after he lent his phone to someone and the phone was identified as similar to the one that was stolen during the break-in.

“There was no direct evidence implicating the appellant. The magistrate relied on a warning statement wherein the appellant allegedly confessed to the crime. The arresting officer testified that he arrested the appellant. He also recovered some of the stolen items, but it is not clear from whom or where he recovered the stolen items. He testified that he warned the appellant of his rights. The appellant apparently indicated that he did not want to waste time, admitted that it was him and the other accused who did it, ‘’ the judge stated.

He went on to say that it was significant in his view that Embula was not represented at the time. He said the appellant denied that he made the statement in question or that the officer asked him about the contents thereof or that he told him what to write. According to the appellant, he only told the officer about his cellphone. According to the judge, it is evident that the magistrate simply accepted there was no objection and admitted the warning statement without asking Embula any questions. 

“The appellant was never informed that there are requirements to be complied with before the statement may be admitted and that a trial within a trial might have been necessary,” the judge stated. 

He continued that the learned magistrate simply concluded that the statement was made voluntarily and without undue influence despite an allegation by the appellant of an assault perpetuated on him. 

He further said evidence presented in court was confusing and unreliable and did not prove the case against the appellant beyond a reasonable doubt and that the mere admission of the warning statement constituted an irregularity.  

2019-02-05  Roland Routh

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