WINDHOEK - Two judges of the Windhoek High Court on Monday dismissed an appeal by a man convicted of robbery, based on the doctrine of common purpose, for letting two persons into the complainant’s home, who overpowered a domestic worker and stole large amounts of cash and jewellery.
Victor Nampweya Fillipus, aggrieved by the conviction and 12-year sentence that followed, appealed to the High Court against his conviction, saying the presiding court did not seriously consider his defence that he was in the north on the day of the incident.
He further contended that there was no evidence of an assault on the domestic, despite the court finding otherwise. Another bone of contention was that there was insufficient proof that a robbery took place, according to him, again contrary to what the court had found.
He further argued the court relied on inadmissible evidence to sustain a conviction.
He was convicted of a robbery that occurred on March 05, 2012 and it was found by the Windhoek Regional Court that he let two unknown persons into the premises who proceeded to rob the place.
His co-perpetrators were never found.
According to Judge Christi Liebenberg who wrote the judgement in agreement with Judge Dinnah Usiku, the lower court correctly identified three issues that were to be decided, namely, identification and alibi of the appellant and if proved whether he had acted in common purpose with the unknown perpetrators.
They said it is not in dispute that Fillipus was employed as a gardener at the complainant’s house for several years and that he and the domestic worker knew each other fairly well. Also, not in dispute, the judges said, was that he travelled to the north during March, 2012 where he remained for some time while he also handed N$5 000 in cash to his mother for safekeeping.
With regard to the alibi defence of Fillipus, the judges said evidence was produced that he turned up for work on the day in question. He said the complainant testified that she saw him that morning and gave him certain tasks to perform. The second witness to place Fillipus on the scene of the crime was the domestic, Vehugura Jaezuruka, the judges said.
According to the judgement, her testimony corroborates that of the other state witnesses. Jaezuruka testified that when she arrived at work at around 08h00, the appellant was already there and after greeting, she entered the house. The next time she saw him, the witness said, was when he and two unknown men entered through the kitchen door and when the unknown men started to assault her. He left the scene, not to be seen again.
Although she was unable to see the faces of the three persons and although unable to identify the other two, she was adamant that Fillipus was among them as she knew him well. The third witness to put the appellant on the scene was the partner of the complainant who resided at the residence, the judges found. According to him, he saw the appellant that morning when he left for work.
“When considering the testimony of the three state witnesses who gave evidence on identification, the trial court was guided by case law cited in the judgement and correctly followed a cautious approach,” Judge Liebenberg stated and continued: Mindful of the circumstances under which the witnesses made their respective observations and bearing in mind that the appellant was well known to them; and having found the witnesses credible and trustworthy, the court was satisfied that the appellant was positively identified. He went on to say that the appellant’s evidence that he travelled to the north the day before the robbery, was accordingly rejected as false and the appeal was dismissed.
Fillipus was represented by Mbanga Siyomunji on instructions of Legal Aid and the Prosecutor General by State Advocate Marthino Olivier.