S v Frederick (CR 76/2020) [2020] NAHCMD 459 (06 October 2020);

Introduction

[1]        The accused appeared before the district court of Bethanie on a charge of assault with intent to do grievous bodily harm, read with the provisions of Act 4 of 2003. The particulars of the charge reads that the accused threw her child Rickus Fredericks, an infant, down on to the ground.

[2]        The accused pleaded not guilty and evidence was heard. On 1 October 2019 the accused was convicted as charged and the following sentence was imposed:

‘A period of 18 months imprisonment, of which a period of 10 months is suspended for a period of 7 years on the following conditions:

1.  
2.  
3. That the accused is not convicted of similar offenses of assault GBH, committed during the period of suspension.’ (sic)

[3]        A query was directed to the trial magistrate. The query covered a number of aspects. The first question was in respect of the court’s omission to investigate mental illness and criminal capacity of the accused, in the face of evidence under oath that the accused suffered from a mental disturbance since childhood. A lengthy reply was received, which I will summarize. The magistrate shifts the blame to the State for failing to show an interest in a mental enquiry. She also stated that the accused did not offer mental incapacity as a defense. The magistrate’s view was that she was not satisfied that the situation required or justified an enquiry into mental illness or criminal capacity.

[4]        Another aspect of the query pertained to the failure of the court to conduct a competency examination prior to the testimony of a 12 year old child. From the answer it can be gathered that the magistrate thought it was a ‘discretionary process’ when a witness may struggle or is too young or vulnerable to give evidence. Nevertheless the magistrate stated that based on her observations during the testimony by the child, the witness was competent to testify.

[5]        The reviewing court also noted that the explanations in respect of procedural rights, such as the right to cross-examination, the right to mitigation, the right to appeal and review rights were not apparent from the record. The question was posed as to whether explanations in this regard was given at all? The magistrate replied in the affirmative, but conceded that the explanations were not recorded in the court record. She explained that she did not realize that it was such a serious issue and that she has seen court records wherein other Senior Magistrates omitted these explanations.

[6]        The last issue that was raised was in regard to the sentence, in particular the propriety of the suspended sentence as phrased and the conditions that were imposed. The magistrate conceded that the suspended portion of the sentence is not in order and request that it be set aside. She furthermore stated that at this point in time the sentence was served.  

Delay in answering the query

[7]        The accused was sentenced on 01 October 2019. The record was received by the Registrar’s Office on 5 November 2019 and the query from the reviewing court is dated 25 November 2019. The reply remained outstanding and a reminder was sent from the judge’s chambers on 5 June 2020. On 14 September 2020 a reply was received wherein the magistrate apologizes profusely. The reasons for the delay were that the record was misplaced in her office and that she travels twice a month to different periodical courts. A period of ten months passed between the query and the response by the magistrate. It is an un-acceptable delay, especially in view of the outcome of this matter. An apology offers no consolation to a person who completed serving the period of imprisonment.

Mental illness and or criminal capacity of the accused

[8]        The magistrate reasoned that there was no need to investigate mental illness and criminal capacity on the part of the accused person.  I disagree for the following reasons:

[9]        The main witness for the State is a niece of the accused, one Anna Josephs. The trial commenced with a question as to what led to the arrest of the accused. The witness, Ms Josephs, answered that: ‘The reason she was arrested because she is mentally disturbed and the whole community members has observed. Although she is in this condition and she is having kids and get pressure from raising them and her boyfriend, she is unemployed and always evicted by her brother.’[1] (sic) (Emphasis provided).

[10]      Ms Josephs testified that on the date in question the accused was evicted, that she accompanied the accused to the garage wherein the accused lived and that she called a certain Warrant Angula who promised to send the accused to a social worker, but it did not materialize. Later during the same day Ms Josephs received a text message from the accused saying that she wants to kill her child. It prompted the witness to return to the accused’s place where she found the accused without the child.  Other children told Ms Josephs that the infant was taken to the grandmother and was thrown to the ground. Her testimony also intimated that the infant was taken to the doctor but there was no indication that the child was beaten.

[11]      Ms Josephs further testified that:  ‘I even told the social worker to help accused person, because I want her to be helped so that accused person be taken to specialist to assist her with her condition and be diagnosed accordingly.’

[12]      After the evidence in chief the magistrate hinted to the prosecutor that the accused was known to be mentally disturbed by the community. The prosecutor made it off as rumours, as none of the other magistrates picked up on this aspect and the trial continued.

[13]      The record shows that the accused had no questions in cross-examination. The court proceeded to pose questions in clarification.  It was asked whether the witness believed that the accused will carry out the threat contained in the text message and the answer was that ‘Because I know her condition and always observing her...’  (Emphasis provided).

[14]      The court followed up with two more questions along the following lines:

‘Crt: and would you know what would lead the accused to beat her daughter?

Wit: Maybe of the condition she is in, unemployed, homeless, not receiving love.

Crt: would you say that is a reason to beat a child

Wit: It is not only those things, but for me she is not normal since she was a minor.‘ (Emphasis provided).

[15]      The whole gist of the evidence by Ms Josephs was that the offense is attributable to the mental disturbance of the accused. She attested that the accused had this condition since childhood and intimated that the whole community was aware of it.  Thus, the prosecutor’s dismissal of it as mere rumours cannot stand. It was evidence under oath. The fact that accused did not raise it as a defense, does not preclude the court from playing its role once it became aware of a reasonable possibility of a mental disturbance. With deference to the magistrate, was the unrepresented accused suspected of mental illness/defect supposed to bring the application for mental examination herself?

[16]      Section 77(1) of the Criminal Procedure Act as amended (the CPA) stipulates that:

‘If it appears to the court at any stage of criminal proceedings that the accused is by reason of mental illness or mental defect not capable of understanding the proceedings so as to make a proper defence, the court shall direct that the matter be enquired into and be reported on in accordance with the provisions of section 79.’

[17]      In a similar vein, s 78(2) of the CPA provides that:

‘If it is alleged at criminal proceedings that the accused is by reason of mental illness or mental defect not criminally responsible for the offence charged, or if it appears to the court at criminal proceedings that the accused might for such a reason not be so responsible, the court shall direct that the matter be enquired into and be reported on in accordance with the provisions of section 79.’ (Emphasis provided).

[18]      In S v Mokie[2] it was held that where there is a reasonable possibility that an accused suffers from a mental illness or disorder the trial court is obliged to order an investigation in terms of s 78(2) and s 79 of the CPA. The evidence adduced by this particular witness squarely put the issue before the court as to whether the accused at the time of the commission of the offense had the mental ability to discern between right and wrong and whether she was able to act in accordance with such appreciation. 

[19]      In my view, the evidence should have alerted the magistrate that the trial should not proceed in the normal course. What the prosecutor referred to as rumours, was in fact evidence under oath of a mental disturbance. It provided a factual basis to seek medical evidence as regards the mental illness and criminal capacity of the accused. The court a quo should have acted accordingly and referred the accused for mental observation. Its failure to do so, constituted a serious misdirection, vitiating the trial in its entirety.

This notwithstanding, there are further procedural issues that deserve comment.

Establishing the competence of a child witness 

[20]      The only eye-witness in this matter is a 12 year old boy, Immanuel Dennis. He testified without any prior examination conducted into his competency as a witness.

[21]      The magistrate stated that according to her observation during the trial the child appeared to have been a competent witness. It amounts to an after-the-fact justification which does not comply with well-established legal requirements. The record reflects that: ‘Witness sworn in.’ I interpret it as taking the oath, not an affirmation nor an admonishment. Thus, the court elected not to apply an admonishment[3] in respect of the child, though that is the provision for witnesses who, due to their youth, defective education or other cause may not understand the nature and purport of the oath.

[22]      Whilst it is up to the magistrate to choose from amongst the options provided for in s 162, s 163 and s 164 of the CPA, when dealing with a minor child witness, it is a vital pre-requisite that the magistrate determine before evidence is heard, whether the child is capable of understanding what it means to speak the truth and make a finding on that before admonishing the witness.

[23]      This is done by doing an enquiry to establish whether the child understands the nature of the oath and can distinguish between the truth and a lie. Regarding the purpose of the enquiry the court in S v V at 652 F-G[4] explained that:  ’A sufficient comprehension of the oath in the prescribed form ... entails not only an understanding of the religious obligation of the oath, but also an understanding of the meaning of the truth, which is the subject of the oath, and the difference between speaking the truth and falsehood.’

[24]      I am in agreement with the principle stated in S v Namidi[5] at para 8 that a court must be satisfied that, particularly a child witness or any witness that does not understand the religious sanction of the oath, must be able to comprehend what it means to tell the truth and shun away from falsehood. The Namidi case also refers to Hoffman and Zeffert[6] which explains the relevant position as follows:

‘In each case the judge or magistrate must satisfy himself that the child understands what it means to speak the truth. If the child does not have the intelligence to distinguish between what is true and false, and to recognize the danger and wickedness of lying, he cannot be admonished to tell the truth – he is an incompetent witness.’

[25]      In this case, the child witness, not having gone through the procedural mill, was not a competent witness and no reliance can be placed on his evidence.

Failure to keep record of procedural rights’ explanations

[26]      As stated earlier, the magistrate did not record the explanations of the procedural rights in the record. The rights were merely recorded as: ‘Crt: Cross-examination rights explained.’, ‘Crt: Mitigation rights explained to accused’, and ‘Crt: review and appeal rights explained’.

[27]      A magistrate has a duty to keep an unrepresented accused informed of procedural rights and to keep record thereof.[7] The Namibian Supreme Court endorsed the principle in S v Kau,[8] and it was stated at 11H – 12A with reference to the explanations and the recording thereof by the magistrate that:

 ‘He should have recorded the nature of the explanation given to the appellants. All that he told them about cross-examination should have been written down. It is difficult for an appellate court to accept that the magistrate explained fully to the appellants the import of cross-examination. The terse statements entered in the record do not suggest what it was that the magistrate told the appellant. In this case it is difficult to believe that the magistrate explained fully what cross-examination was all about, because the record reveals that appellants did not understand what they were expected to do during cross-examination.’

[28]      Simply put, the details of the explanations should appear ex facie the record.[9] In this matter it was not properly done, which amounts to a further irregularity.

Sentence

[29]      There were several problems with the sentence that was imposed. I briefly deal with that. The period of suspension was 7 years instead of the prescribed 5 year term.[10] Furthermore, the conditions that were imposed were vague and inappropriate.

[30]      The courts have in numerous cases pronounced itself on the formulation of suspend sentences, where the conditions read that an accused should not commit ‘a similar offence or ‘committed as charged’. The condition of suspension is too wide and is bound to lead to uncertainty and mis-interpretation.[11]

[31]      The additional conditions of no contact with any of her children without the permission and presence of a registered social worker of Bethanie and completion of rehabilitation programs, were imposed without so much as any sign on the record that the relevant institutions are able to provide the specified services and specialised programs. I echo what was stated recently in S v Armstrong[12] that it is an essential requirement of a suspensive condition that it must be formulated in such a way that it does not cause future unfairness or injustice. This is because non-compliance with a condition of a suspended sentence has consequences for an accused. The imposition of suspensive conditions should be done with a proper consideration of the circumstances of the accused and the relevant facilities where the accused is to fulfil the suspensive conditions.

 

Conclusion

[32]      Clearly, the trial proceedings were tainted by several irregularities of a serious nature which vitiates the trial. Consequently the conviction and sentence fall to be set aside.

[33]      Regrettably, by the time the query was answered, the accused completed serving her term of imprisonment, and it will not be fair to remit the matter.  Suffice it to say, the delay in answering the query directed to the magistrate almost a year ago, deprived the accused of the protection that the urgent review mechanism was designed for. Instead of that, the review of this matter has become a mere academic exercise. Therefore, measures should be put in place to ensure that magistrates treat the answering of review queries as urgent and that instances such as the present are not repeated.

[34]      In the result the following order is made:

1. The conviction and sentence are set aside.

2. A copy of this judgment be forwarded to the Chief Magistrate with reference to paragraph 7 and paragraph 34.

 

                                                                                                                ________________

                                                                                                                     C M CLAASEN

   JUDGE

 

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                                                                                                                    J C LIEBENBERG

   JUDGE