CASE NO.:
CR 22/2009
IN THE HIGH COURT OF NAMIBIA HELD
IN OSHAKATI
In the matter between:
THE STATE
and
STEPHANUS NARSON SHILONGO
(HIGH
COURT CASE NO.: 23/2009)
CORAM:
SHIVUTE, A.J
et
LIEBENBERG,
A.J
Delivered on: 01 June 2009
REVIEW JUDGMENT:
SHIVUTE, A.J.:
[1] This matter came before me on automatic review. The accused was
charged with attempted murder, alternatively contravening section 38
(1) (i) of Act 7 of 1996 – Negligent discharge of a firearm.
[2] I directed the following query to
the trial magistrate, namely:
“The
review covering sheet J4 reads that the accused was convicted of the
offence of attempted murder alternatively contravening section 38 (1)
(i) of Act 7 of 1996 – Negligent discharge of a firearm. However
the charge sheet J15 reads that the accused was convicted of main
count: Assault with intent to do grievous bodily harm. Which exactly
is the offence the accused was convicted of?”
[3] The learned magistrate replied as
follows:
“I
agree to the Honourable Review Judge’s questions. I wish to point
out to the Honourable Reviewing Judge’s question as to which
exactly is the offence the accused is convicted of? The verdict was
guilty of assault with intent to do grievous bodily harm. Although
the charge was attempted murder main count and alternatively
Contravening Section 38 (1) of Act 7 of 1996 – Negligent discharge
of a firearm. Infact the state accepts a plea in respect of count 1.
However the court convicted the accused on assault with intent to do
grievous bodily harm. Reasons are that the accused denied intention
to kill the complainant as per his plea in terms of section 112 (1)
(b). The complainant also gave evidence to say that she does not
know what accused’s intention to shot at her was. The conviction on
review covering sheet is wrong. I therefore request the Honourable
Review Judge to amend the conviction on review covering sheet to read
assault with intent to do grievous bodily harm if that will not be
prejudicial to the accused hence possibility of competent verdict
explained to
him”.
[4] Before the magistrate certifies
the accused record to be the record of proceedings tried before her,
she should first proof read the record. It is clear that the
magistrate did not pay proper attention to the record otherwise she
could have picked up that the sentence which is on the J4 – review
covering sheet was wrong.
[5] As the magistrate requested the
conviction on the J4 to be amended, this Court makes the following
order:
The verdict is amended to read:
Main count – Accused guilty of
assault with intent to do grievous bodily harm.
Alternative charge: Accused not
guilty and discharged.
The sentence in respect of the main
count is confirmed.
_______________________________
(Signed)
SHIVUTE, A.J
I concur
________________________________
(Signed)
LIEBENBERG, A.J
Shilongo v S (CR 22/2009) [2009] NAHC 62 (01 June 2009);