S v Zeleva (CR 12/2009) [2009] NAHC 41 (02 April 2009);

CASE NO.: CR 12/2009

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

and

JOHANNES KUTUMBA ZELEVA

(HIGH COURT REVIEW CASE NO.: 683/2008)

CORAM: LIEBENBERG, AJ et SHIVUTE, AJ

Delivered on: 02 April 2009

REVIEW JUDGMENT

LIEBENBERG, AJ.: [1] The accused and two others appeared in the magistrate’s court, Eenhana on two charges of housebreaking with intent to steal and theft. They pleaded not guilty and at the end of the trial only accused no. 1 was convicted on both charges and sentenced to 24 months imprisonment, the charges taken together for sentence.

[2] Although the case was already finalised on the 30^th of October 2007, the transcribed record was only ready by the 2^nd of April 2008 where after it was dispatched to the Registrar of the High Court for review.

[3] When the matter came before the Reviewing Judge he directed a query to the magistrate on the 21^st of April 2008, requesting her to give reasons for the accused’s conviction. The ‘reasons’ provided were the following: “Accused 1: was charged of two counts of house breaking (sic) with intent to steal and theft. I convicted him as charged.” Obviously not satisfied with the magistrate’s so called ‘reasons’, a second query was directed to the magistrate in which the Reviewing Judge clearly set out which aspects of the case he wanted the magistrate to deal with in her reasons. According to the date stamp the second query was received by the magistrate on 16 June 2008 but the magistrate only responded thereto on the 25^th of February 2009, almost eight months later, in the following terms: “I agree with the honourable Review Judge that the onus of proof rest in the state to prove the accused guilty. I misdirected myself that Constable Maimbuta evidence corroborate the evidence of the other police officer who testified to that effect.”

[4] The magistrate’s response has absolutely no bearing on the issues raised in the query and it seems obvious that the magistrate has no intention of giving a proper and reasoned response as she was requested to do. I shall deal with this later herein.

[5] Issues on which the Reviewing Judge sought clarity are the identification of shoe/footprints; an admission/confession the accused made when “confronted” by the police; and the court’s judgement where it reads that the accused “…failed to show the Court on balance of probability that he was not at the scene of the crime and how his shoe prints or the foot prints… were at the scene of the crime” and further, that he “…failed to show on a balance of probabilities how his shoe prints can’t be matched with shoe prints at the scene of the crime if he was not there. No onus rests on an accused to prove his innocence…” The need to afford the magistrate the opportunity to explain herself is evident from the contradicting views she had taken in the last passage i.e. that there is an onus on the accused to show on a balance of probabilities that he was not at the scene, compared to no onus resting on the accused. Regrettably the magistrate chose not to clarify the ambiguity in her judgement and merely conceded that she had misdirected herself on the facts. I therefore take the record of proceedings as it stands.

[6] It is trite law that in a criminal case the onus is on the State to prove the guilt of an accused beyond reasonable doubt and no onus rests on the accused to prove his innocence or to convince the court of the truth of any explanation which he gives. (S v Difford, 1937 AD 370) Accused admitted having passed the first complainant’s shebeen earlier that day, but denied having been there at the time when it was broken into, which is manifestly an alibi defence. Likewise, the accused does not bear the burden of proving that his alibi is true. Neither is he under any duty to prove that the bare foot/shoeprints found at the scene of the crime were not his. Therefore, where the magistrate in her judgment said that the accused failed to show on a balance of probability that he was not at the scene of crime or that he failed to show that the prints found did not match his, she clearly misdirected herself on the law.

[7] This is an irregularity which infringes the fundamental rights of the accused namely, that he is presumed innocent until proven guilty according to law (Article 12 (d)). In my view it falls in the category of irregularities or defects delineated in S v Shikunga and Another, 1997 NR 156 (SC), resulting in a failure of justice, vitiating the outcome of the proceedings. This notwithstanding, the court also misdirected itself on facts and the application of the law related thereto.

[8] The State’s case essentially rests on circumstantial evidence namely the finding of bare foot/shoeprints at the shebeen which was broken into. The testimony of Rebecca Weyulu, complainant on count 1, is that in the morning she observed a shoe (tacky) print inside the shebeen where after members of the community started following it and later returned with the accused. The room of Maidhula Selma, complainant in count 2, is situated next to the shebeen managed by Rebecca and when she returned there in the morning she noticed three sets of prints inside her room. There was a tacky print and two bare footprints, of which the one person was wearing socks. In re-examination she was asked whether there were three shoeprints, which the witness then confirmed. This clearly contradicts the evidence she had given in chief.

[9] The next witness who gave evidence about footprints was Kashongo Ruben, who came across some police officers following the bare footprints of two persons up to the road where the one person changed into shoes (boots). The witness on the way met with an unknown man whom he then asked whether he was able to identify the shoeprint. According to that person it belonged to the accused. They continued following the prints up to a water point where the prints became no longer visible. Because of the information given to them earlier, they went looking for the accused and when they eventually found him, they took him to the shebeen. Without explaining how he came to that conclusion the witness said it was the accused who had walked barefoot up to the point where he had put on his shoes next to the road. The shoeprint found at that spot however, was never returned to, in order to compare it with the shoes the accused was found wearing the time he was apprehended. At the shebeen he had to take off his shoes where after the size of his feet were compared to the bare footprint found inside. Because it matched, Kashongo concluded that it was the accused who had committed both crimes. He further said that the accused, when asked about the footprint replied: “…that it was his footprint and the other one he said looked like his footprint.” What the witness meant by this, is not at all clear because the answer is ambiguous.

He said the accused was then taken to the police station where he was “confronted” by a police officer and where after he “…agreed that they were the ones who broke into those cuca shops…” When asked whether the accused made the statement freely and voluntarily, he replied that the accused gave the statement “after he was confronted by the police officer.” In cross-examination the witness said that he “…only saw the police officer ordering you to touch your hands down and by that time you had bent down.” No explanation was given why the accused had been given such an order and when the accused put it to the witness that he was assaulted at the police station, the magistrate intervened and told the accused not to make a statement. When he persisted with that line of questioning the magistrate responded in the same manner and the accused then stopped his cross-examination.

[10] The self incriminating admissions allegedly made by the accused must be viewed in the circumstances where he had been apprehended by members of the community; where after he was taken to the shebeen which was broken into and accused of having broken in the previous day; he was then taken to the police where he was confronted and ordered to perform certain acts. In these circumstances I do not believe that the witness was honest when he said that the witness made these statements freely, as the contrary is quite evident from the witness’ own testimony. When the accused tried to point that out to the court during cross-examination the magistrate intervened and disallowed him questions in that regard. This was highly irregular as the accused was entitled to show to the court through cross-examination that the witness was dishonest and an unreliable witness. The court therefore could not have given any weight to the so called admissions made by the accused.

[11] That brings me to the footprint identification made in respect of the accused which is also the only evidence referred to by the magistrate in her ex tempore judgment. The learned magistrate erred when she stated that the accused’s “…shoe prints were compared with the shoe prints at the scene of the crime and they matched.” There is no evidence on record supporting such finding as the accused was told to take off his shoes in order to compare his foot with the bare footprint found inside the shebeen. There was simply no boot/shoeprint visible at the scene as it was alleged that the accused had put these on only after reaching the gravel road. Furthermore, the fact that the size of the accused’s feet matched the footprint found at the scene, certainly does not meet the requirements for positively identifying the accused beyond reasonable doubt.

[12] Footprints may, in the same way as fingerprints, provide circumstantial evidence of identity and is therefore, admissible evidence. However, it has been said that courts must be cautious of relying upon such evidence, especially where it is the only evidence against the accused, and the cogency of such evidence must depend upon all the circumstances of the case. One such circumstance is whether the imprint left by the shoe in question has some distinctive characteristic or pattern. (S v Mkhabela 1984 (1) SA 556 (A) at 563) Unlike palm- and fingerprints which are unique, it is possible that more than one person will have the same type of shoe or the same size and shape of foot. It is for that reason that the court will not convict on the evidence of a footprint alone, unless the print has sufficient unusual or unique features to convince it that it is identical to that of the accused. Furthermore, the court itself should by means of a photograph be able to make the necessary comparisons and to assess the cogency of the footprint evidence and should not simply rely on the opinion of a witness. (S v Petrus Even Case No. CR 2775/92 (unreported))

[13] In the present case the bare footprint found in the shebeen was followed up to the road where the person had put on shoes and thereafter proceeded to a water point where it was destroyed. The witness Kashongo Ruben testified that he compared the bare foot of the accused with the print found and in his opinion it was the same, without saying how he came to that conclusion as no mention was made of any unusual features observed on the print. This is insufficient and definitely does not satisfy the test of proof beyond reasonable doubt. As mentioned earlier, neither was the accused under any duty to show that the print found was not his.

[14] For the foregoing reasons it is clear that the accused could not positively have been identified on the bare footprint found at the scene of crime and as there is no other reliable evidence implicating him with the commission of the offence, he could not have been convicted on either of the charges preferred against him. The conviction and sentence in respect of both charges therefore will be set aside.

[15] The accused was sentenced to direct imprisonment of 2 years and has to date almost served the sentence in full. Despite for the 5 months it took to have the record of the proceedings transcribed, it took a further 10 months after the first query was sent, before the magistrate conceded that she had misdirected herself and still without her addressing the issues raised in the query! This reply only came 8 months after the second query was directed to the magistrate and without any explanation for the delay. Undoubtedly, had the magistrate provided her reasons for conviction on the first query she had received as she was supposed to do, then the conviction would already have been set aside one year ago and the accused would have been released at the same time.

[16] The manner in which the magistrate handled and responded to the queries directed to her cannot be condoned as it is not only a dereliction of her duties, but resulted in a travesty of justice which renounced the accused’s fundamental rights, enshrined in the constitution of this country. Magistrates should be mindful that with attitudes like the magistrate in this case has displayed, they open themselves up for civil claims against them personally.

[17] In the result it is ordered:

1. The conviction on both counts and the sentence imposed are set aside.

2. The Registrar is directed to forward a copy of this judgment to the Chief: Lower Courts.

____________________________

LIEBENBERG, A.J.

I concur.

____________________________

SHIVUTE, A.J.