Kalwenya v The State (HC-MD-CRI-APP-CAL-2023-00061) [2024] NAHCMD 97 (08 March 2024)

Facts

The appellant (Kalwenya) had appeared in the Windhoek Magistrates Court on one count of housebreaking with the intent to steal and theft. After evidence was heard, the appellant was convicted and sentenced to two years’ imprisonment. Aggrieved by the outcome of the trial, the appellant lodged an appeal within the prescribed time limit against the conviction. The appeal against conviction was founded on five grounds enumerated in the appellant’s Notice of Appeal. 

Issues for determination

It was argued on behalf of the appellant that the trial court was selective in her analysis of the evidence presented and evaluated the evidence in piecemeal, as per the judgment, that it per se constituted a misdirection.

Thus, before delving into the respective grounds of appeal, the High Court made remarks on the judgment of the court a quo (the magistrate who presided over the matter in the Windhoek Magistrates Court) to determine whether indeed there was a misdirection. 

Discussion

‘[4] … The judgment covers two and a half pages of which two pages are devoted to the summary of evidence adduced. The court’s reasoning and conclusions reached are condensed in only half a page from which it is evident that the trial court did not properly evaluate the evidence and failed to apply its mind as regards the application of the law to the facts.

[5] Besides stating that she considered the submissions made by both the state and the appellant in assisting the court to come to a fair conclusion, and that the court exercised caution when considering the single witness evidence in terms of s 208 of the Criminal Procedure Act. The trial court in a summarised manner stated the following in her judgment: 

“However, the appellant failed to provide a reasonable explanation which would create reasonable doubt in the courts mind.  The defence witnesses’ testimonies were not credible and reliable as they were vague, seemed fabricated and could not help the court reach a reasonable conclusion.  Therefore, the benefit of doubt cannot be granted to the appellant person. Therefore, based on the aforementioned evidence that was led, the court is of the opinion that the state has proved its case beyond a reasonable doubt based on above mentioned reasons; therefore, the appellant hereby found guilty on a charge of housebreaking with the intent to steal and theft.”

[6] Liebenberg J with January J concurring in the matter of Lupandu v The State, had the following to say regarding the omission on the part of the magistrate to incorporate in the judgment, the court’s reasoning and basis for the findings reached: 

“[6] …Unfortunately, the remissness of the presiding magistrate by neglecting to prepare and deliver a full and reasoned judgment when called upon to do so, has consequences. Without the benefit of having the court a quo’s reasons for accepting the evidence of state witnesses, while rejecting that of the appellant and how the court applied the law to the proven facts, this court, sitting as court of appeal, is unable to gauge whether any misdirection was committed by the trial court during its assessment of the evidence which materially impacts on the convictions. What would now be required of this court is to evaluate the evidence afresh to decide whether the bold conclusions reached by the trial court are justified and based on the evidence and whether the convictions are in accordance with the applicable legal principles. 

[7] It seems apposite at this juncture to remind presiding officers of their duty to set out in their judgments the weight accorded to evidence adduced and provide adequate reasons for the conclusions reached by the court. In my view, the state and the appellant are entitled to know how the court reached the verdict pronounced in the end. Without a full judgment, how would the state or the appellant be in a position to decide whether there are grounds of appeal, based on any misdirection by the trial court on either the facts or the law? Furthermore, it impacts severely on the function and duties of the court of appeal which is now basically forced to step into the shoes of the trial court and decide the matter afresh. That is clearly not the purpose of a court of appeal, except in circumstances where an irregularity committed by the trial court is not of such gravity that it resulted in a failure of justice and where the court of appeal is required to evaluate the evidence afresh in order to determine whether, despite the irregularity, there is sufficient evidence to justify the trial court’s finding(s).”

[8] I find no reason why we should deviate from the above conclusions and direction extended by our brothers and would therefore discuss this matter on the backdrop of the same.  I find it necessary at this juncture, to highlight the importance of the presiding magistrate’s duty to prepare and deliver a full and reasoned judgment when called upon to do so, as this omission has consequences, not only for the appellant, but for the court of appeal in deciding whether a misdirection was committed.

[10] The appellant contends that the trial court, in essence, erred by being selective in her analysis of evidence presented, and only evaluated the evidence piecemeal. Appellant particularly took issue with the way in which the testimonies of the appellant’s witnesses were considered, even when they were corroborated in the given circumstances. Furthermore, it was argued that the court misdirected itself by concluding that the appellant failed to provide a reasonable explanation which would create reasonable doubt while ignoring the fact that there is no onus on the appellant to proof his case.  

[11] Appellant further contends that the trial court failed to adopt the approach laid down in the matter of S v Singh, when evaluating the evidence.  The approach outlined requires that a court must apply its mind not only to the merits and the demerits of the state and the defence witnesses but also to the probabilities of the case, and after applying its mind reach a conclusion as to whether the guilt of an appellant has been established beyond reasonable doubt.  This the Appellant contends must be clearly outlined in its reasons for judgment including its reason for the acceptance and the rejection of the respective evidence.     

[13] Opposing grounds 1, 3, and 5, the Respondent argued that the Appellant failed to point out the specific evidence the learned magistrate was supposed to consider and therefore is vague and lacks specificity and that amounts to a mere conclusion drawn by the draftsman. It was further argued that grounds of appeal should be clear and specific and that ground 1 does not appear so.

[14] It was further contended that the trial court in its evaluation of the evidence considered the evidence in its entirety and came to the conclusion that the state witnesses were to be believed and that this is evident from the trial courts judgment.  

[15] It was further argued that the trial court summarised the evidence of the defence witnesses and a conclusion reached, that the defence witnesses were not credible and reliable as they were very vague and that their evidence was fabricated and could not help the court to reach a reasonable conclusion.’

Findings 

In regard to the issues, CHRISTIAAN J (concurring USIKU J) held that:

The remissness of the presiding magistrate to prepare and deliver a full and reasoned judgment is a misdirection impacting severely on the function and duties of the court of appeal which is now forced to step into the shoes of the trial court. This is not the duty of a court of appeal except where an irregularity was committed which impacts on the outcome of the proceedings.

The State and the appellant are entitled to know how the court reached its verdict in order to decide whether or not there are good grounds to appeal.

Lupandu v The State (HC-MD-CRI-APP-CAL-2022-00093) [2023] NAHCMD 265 (15 May 2023)

The High Court made the same findings
in this earlier matter where an accused person (the appellant) had appeared in the Regional Court sitting at Katima Mulilo on two counts of rape in contravention of s 2(1)(a) of the Combating of Domestic Violence Act 8 of 2000 (‘the Act’). After evidence was heard, the appellant was convicted on both counts and sentenced to 15 years’ imprisonment on each count (30 years in total). 

Aggrieved by the outcome of the trial, the appellant lodged an appeal within the prescribed time limit against both the convictions and sentences imposed. On appeal, argument was advanced on behalf of the defence that the trial court’s reasoning, as per the judgment, was so terse that it per se constituted a misdirection. 

The judgment covered nine pages of which more than seven pages were devoted to the summary of the evidence adduced. The court’s reasoning and conclusions reached were condensed in only half a page from which, as counsel submitted, it was evident that the trial court did not properly evaluate the evidence and failed to apply its mind as regards the application of the law to the facts.

The High Court found the argument to have merit, and stated in part that:

‘[5] … Besides stating that the case for the state stands and falls on the single evidence of the complainant, the court summarily found that the complainant was consistent in her testimony and that the court had no reason to doubt her reports made to her mother, aunt and a police officer and that she was credible. Having accepted the complainant’s version as reliable, the court further accepted that the appellant gave the complainant money on each of the occasions he had sexual intercourse with her and told her not to tell her friends or her mother. By offering her a lift and giving her chips, the court opined that, by so doing, he was grooming the complainant which the court described as ‘a clear modus operandi of a paedophile’. The court reasoned that this prepared the complainant for the sexual act, which explains why she did not sustain any injuries during the sexual acts committed with her. Having been satisfied that the complainant was truthful, the appellant’s version was rejected as being false and the accused was convicted on the basis of the complainant being under the age of 14 years and the appellant more than three years older, a coercive circumstance as provided for in the Act.

[6] During oral argument, counsel for the appellant conceded that the omission on the part of the magistrate to incorporate in the judgment, the court’s reasoning and basis for the findings reached, does not per se constitute an irregularity vitiating the outcome of the trial. Unfortunately, the remissness of the presiding magistrate by neglecting to prepare and deliver a full and reasoned judgment when called upon to do so, has consequences. Without the benefit of having the court a quo’s reasons for accepting the evidence of state witnesses, while rejecting that of the appellant and how the court applied the law to the proven facts, this court, sitting as court of appeal, is unable to gauge whether any misdirection was committed by the trial court during its assessment of the evidence which materially impacts on the convictions. What would now be required of this court is to evaluate the evidence afresh to decide whether the bold conclusions reached by the trial court are justified and based on the evidence and whether the convictions are in accordance with the applicable legal principles.

[7] It seems apposite at this juncture to remind presiding officers of their duty to set out in their judgments the weight accorded to evidence adduced and provide adequate reasons for the conclusions reached by the court…’

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