Court name
High Court
Case number
CRIMINAL 55 of 2008
Title
S v Awa-Eiseb (1) (CRIMINAL 55 of 2008) [2008] NAHC 64 (02 July 2008);
Media neutral citation
[2008] NAHC 64
Case No.: CR 55/2008
IN THE HIGH COURT OF NAMIBIA
In the matter between
THE STATE
versus
SALMON AWA-EISEB
CORAM: PARKER, J et MANYARARA, AJ
Delivered on: 2008 June 2
__________________________________________________________________
REVIEW JUDGMENT:
PARKER, J.:
[1] The accused was charged before the Windhoek Magistrate’s Court on one count of attempted murder. He pleaded not guilty; he was tried and found guilty and sentenced accordingly.
[2] I asked the learned Magistrate to respond to my remarks:
I am unable to review this case as the record stands. It is not clear at what point the State closed its case, and what happened after that – not even the learned Magistrate’s handwritten record goes any further than his s. 174 decision.
[3] The learned Magistrate responded that he was unable to reconstruct the case record. He therefore “humbly requests for the proceedings to be quashed due to inability to reconstruct the records.” I respectfully agree with the learned Magistrate. The absence of a record of proceedings of a trial of an accused is an irregularity. (See S v Sageus and others 2004 (5) NCLP 102 (HC); S v Alvert 2005 (2) NCLP 1; The State v Johannes Matlatha, The State v Tjipo Tjivikua & another Case No.: CR 38/2008, Case No.: CR 39/2008 (Unreported).)
[3] It follows that in the circumstances, the interests of the administration of justice will be served by the setting aside of the conviction.
[4] In the result, the following order is made:
(1)
The conviction and sentence are set aside.
(2)
The Prosecutor-General is at liberty to prosecute the accused de novo, if she so desires.
________________________
PARKER, J
I agree.
________________________
MANYARARA, AJ