S v Likius (Case No.: CR 106/2008 ) [2008] NAHC 94 (01 October 2008);

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Full judgment


CASE NO.: CR 106/2008


IN THE HIGH COURT OF NAMIBIA


In the matter between:


THE STATE



and



SHUUDENI NANDE LIKIUS



(HIGH COURT REVIEW CASE NO.: 1082/2008)



CORAM: MULLER, J et NDAUENDAPO, J



Delivered on: 01 October 2008



REVIEW JUDGMENT


MULLER, J.: [1] The accused pleaded guilty to the charge of arson and after applying s 112(1)(b) of the Criminal Procedure Act No 51 of 1977 (CPA) the accused was convicted and sentenced to 14 months imprisonment of which 8 months were conditionally suspended for 3 years.


[2] I addressed the following queries to the magistrate on 14 July 2008:

1. On what basis was the magistrate satisfied in terms of s 112(1)(b) of the CPA that the accused admitted all the elements of the offence of arson, considering the following:


  1. the accused stated that he was forced to plead guilty;

  2. the accused did not admit that he knew that he would cause damage to the complainant’s property by setting fire to it; and

  3. the accused provided a defence when he asked whether he knew his action was wrong, he did not admit it.


2. Why was the review submitted more than five months after the accused had been sentenced?



[3] On 25 September 2008 I received the following response from the magistrate:


“1. The magistrate’s answer to the Honourable Review Judgethat the whole proceeding is not in order. I am humbly requesting the proceedings to be set aside.


2. The review was submitted late as we had to printer at the office. We are depending getting help from other office to print our cases. That was the main reason.”


[4] I agree with the magistrate that the accused’s conviction and sentence should be set aside, although the magistrate did not fully answer my queries. According to the record of the proceedings in respect of s 112(1)(b) of the CPA questioning, the magistrate could not find that the accused did admit the elements of the offence. The conviction is not in accordance with justice.


[5] Consequently, the conviction and sentence of the accused is set aside.




__________

MULLER, J



I concur



_________________

NDAUENDAPO, J

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