Windhoek
The late filing of a notice to appeal to the Windhoek High Court for a conviction on a charge of rape in the Windhoek Regional Court led to the appeal being struck from the roll in both the High Court and the Supreme Court.
Daniel Fereciano was convicted by the Regional Magistrate’s Court on a charge of rape in August 2009 and sentenced to 10 years imprisonment on August 21 of which four years were suspended for five years on the usual conditions. He appealed the sentence in January 2010, five months after the conviction and sentence. His reason for the late filing of his appeal was that he was an unrepresented accused and did not know he had to file his appeal within 14 days of the sentence.
However the notice of appeal was accompanied by an unsworn affidavit explaining his reason for the late filing.
The High Court however found the trial magistrate did in effect inform Fereciano about his right to appeal either the conviction or sentence or both. He was also informed should he file the notice to appeal out of time he must apply for condonation.
The High Court found that he tried to mislead the court when he alleged he was not aware he should give notice of appeal within 14 days. The appeal was struck from the role as his explanation was in direct contradiction with the record of his trial where his rights were explained to him and he had indicated he understood. The High Court further found there are no prospects of success as the crime against him was proved beyond a reasonable doubt.
He then lodged another appeal seeking the appeal to be re-instated, which was also refused on the grounds that the court already decided on the matter.
He then petitioned the chief justice saying the High Court did not give him the opportunity to argue his application for condonation on the late filing of his notice to appeal. He further argued the High Court erred when the appeal judges did not hear him on the merits of his case and therefore he was not given a fair hearing. He was adamant the High Court judges erred when they neglected to consider that he was not represented.
According to Fereciano he had reasonable prospects of success on appeal as the regional magistrate convicted him on evidence not corroborated. He further said the trial court should have drawn a negative inference from the failure of the police to take him for a medical examination immediately upon his arrest and the State’s failure to call the medical practitioner who allegedly examined the complainant.
Acting Judge of Appeal Sylvester Mainga, who wrote the judgment, with Chief Justice Peter Shivute and Deputy Chief Justice and Judge President Petrus Damaseb concurring, said that the main issue is to determine whether the High Court erred when it dismissed Fereciano’s application for condonation. He said the explanation by Fereciano was false as he was properly informed of his rights to appeal. “The fact that he was unrepresented was the choice he made. He declined to apply for legal aid in the trial court. He chose to represent himself in the High Court, just as he did in this court, despite the willingness of the legal aid directorate to assist him,” Justice Mainga said. On the merits of the case, the judge said, it is unnecessary to go into that Fereciano was positively and beyond a reasonable doubt identified as the perpetrator.
In the end, the judge said, the application for condonation was correctly refused and should fail in the Supreme Court as well.