S v Alugodhi (Case No: CA 28/06 ) [2008] NAHC 100 (06 October 2008);

Group

Full judgment
It is undisputed that the complainant George Mbundu’s Toyota Hilux 4x4 was stolen on 12 July 2000

CASE NO: CA 28/06


IN THE HIGH COURT OF NAMIBIA


In the matter between:


ANDREAS ALUGODHI APPELLANT


and


THE STATE RESPONDENT


CORAM: DAMASEB, JP et NDAUENDAPO, J




Heard on: 06 October 2008


Delivered on: 06 October 2008



APPEAL JUDGMENT

DAMASEB, JP: [1] The appellant whom I shall refer to as “the accused” was found guilty in the Regional Court, Oshakati, of theft of a motor vehicle, read with the provisions of Act 12 of 1999 ( The Motor Vehicle Theft Act). He was accused of stealing a Toyota Hilux 4x4 belonging to one James Mbundu. The theft was alleged to have taken place on the 12th of July 2000. He pleaded not guilty to the charge and in his plea explanation stated as follows:


I did not steal a car. On the 12th July 2000 I was arrested by the police after they found parts of the car at my house. I do not know whether the parts are from a stolen vehicle. They were brought to my house by Uushona Shapaka. He said he would come to collect them. I told the police officer Paul Avelinus but he just said he knew what he was doing.”


[2] It is undisputed that the complainant James Mbundu’s Toyota Hilux 4x4 was stolen on 12 July 2000. That vehicle was found very soon after it was stolen with some parts missing. The stolen vehicle was, when found, also without its four wheels and was placed on bricks.


[3] Asser Moses, a police officer, testified that the night before the 12 July 2000 he saw people remove bricks from his house and that of his neighbour. The people who picked the bricks were driving a Mercedes Benz car with a Swakopmund registration number. Moses, prudently, made a note of the registration number of the Mercedes Benz which happened to coincide with the vehicle of the accused. Moses testified that the bricks on which the stolen vehicle had been placed were similar to the bricks that were removed from his and the neighbour’s home by the accused’s vehicle.


[4] At the home of the accused, spare parts were found in the boot of a Mercedes Benz with a Swakopmund registration number belonging to the accused. A Willard battery was also found in the boot of a Skyline belonging to the accused; while a radiator was found at the back of the accused’s house. Four wheels were then found at the house of one Antonius Hamutwe. These wheels were identified by the complainant as his and were removed from his stolen vehicle. Hamutwe testified that it was the accused that brought the wheels to his home and wanted to sell them to him but he refused. Hamutwe’s version of the presence of the accused with tyres at Hamutwe’s home was corroborated by Hamutwe’s wife. Although the appellant denied the version of Hamutwe and his wife, the magistrate who heard and observed the demeanour of the witnesses believed Hamutwe and rejected the accused’s denial. I can see no reason for interfering with the magistrate’s credibility finding. What this means is that soon after the vehicle was stolen and the wheels removed therefrom, the accused was in possession of them and wanted to sell them.


[5] The complainant also identified as his property the Willard battery, the radiator, and the carburettor found in the possession of the accused. Other items identified as belonging to the complainant and found in the possession of the accused were: a steering wheel cover and a jack. The accused never denied that of the parts found in his possession were items removed from the complainant’s stolen car. Instead the accused said he received the parts from one Uutoni Shapaka whom he never called as a witness or provided the address to enable the authorities to verify.


[6] According to the investigating officer Paulus Avelinus who testified at the trial, the accused at some stage mentioned to him that the parts of the stolen car found at his house were brought by Shapaka. This witness testified on this score as follows:


I can recall one day when he said that the parts belonged to Uushona Shapaka. He said he was in Windhoek. He said if I could give him bail he would take me. He could not provide me with the address of that person. I could not give him bail. If he could give me information, I would have gone to look for Uushona Shapaka.”


[7] A finger print of the accused was lifted from the right fender above the front wheel of the stolen vehicle. In spite of the accused’s purported innocent explanation therefor, the trial court found as proven that the accused’s fingerprints were found on the stolen vehicle in circumstances pointing to him having had access to the vehicle after it was stolen and thus pointing to his guilt. I see no reason for upsetting this crucial factual finding by the trial magistrate.


[8] The trial court was satisfied that the state had proved the case against the accused beyond reasonable doubt and quite properly rejected the accused’s denial that he was involved in the commission of the offence. The issues identified by Mr Namandje as irregularities, to wit the Court’s refusal for the accused to call Mr Oswald Shivute, the manner in which Mokahwa’s evidence was dealt with while he was busy testifying; are not such as to taint the conviction. The evidence implicating the accused remains overwhelming and he was properly convicted. This appeal against conviction is unmeritorious and it must fail.


[9] The accused had three previous convictions: two for theft of a motor vehicle and one for possession of a suspected stolen motor vehicle. The magistrate imposed a direct term of 10 years’ imprisonment on him for the present conviction. I see that the heads of argument on behalf of the accused make no mention of the appeal against sentence. Just as well, because there is no merit in the appeal against sentence too.


[10] Accordingly, the appeal against both conviction and sentence is dismissed.





___________________

DAMASEB, JP




I agree




___________________

NDAUENDAPO, J

ON BEHALF OF THE APPELLANT: MR S NAMANDJE


INSTRUCTED BY: SISA NAMANDJE & COMPANY



ON BEHALF OF THE RESPONDENT: MS H JACOBS

INSTRUCTED BY: OFFICE OF THE PROSECUTOR-GENERAL
















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