Court name
High Court
Case number
CA 219 of 2004
Title

S v Mutschler (CA 219 of 2004) [2005] NAHC 22 (12 July 2005);

Media neutral citation
[2005] NAHC 22










PETER
GEORG MUTSCHLER v THE STATE


CASE
NO. CA 219/2004





2005/07/12





Maritz,
J. et Shikongo, A.J.











CRIMINAL
PROCEDURE













S
84(1) of CPA – purpose of – to inform accused of the case
(s)he will be required to meet – charge together with accused’s
plea, admissions and explanations defines lis
touchstone against which court will measure relevancy,
admissibility, weight, and sufficiency of evidence during the
trial





S
88 of CPA – evidence to cure charge defective for want of
averment which is an essential ingredient of offence – purpose
of section – section is only operative if omitted averment is an
essential element of offence – charge in casu not
lacking any essential averments – section not of application





S
86(1) and (4) – prosecution did not apply for amendment of
charge – if amended on appeal it would severely prejudice the
appellant – test of prejudice – whether accused would be in
worse position than if the charge had been framed in amended form
at time accused was required to plead



















CASE
NO. CA 219/2004





IN
THE HIGH COURT OF NAMIBIA





In
the matter between:





PETER
GEORG MUTSCHLER APPELLANT








versus











THE
STATE RESPONDENT








(HIGH
COURT APPEAL JUDGMENT )











CORAM:
MARITZ, J. et SHIKONGO, A.J.





Heard
on: 2005.06.29





Delivered
on: 2005.07.12


_____________________________________________________________________





JUDGMENT





MARITZ,
J
:
I have read the judgment of my brother Shikongo, AJ. I
agree that the appeal should succeed. I also agree with him that the
evidence falls significantly short of the measure required to sustain
a conviction.





Although
the magistrate did not give a reasoned judgment, it is apparent that
he did not accept the evidence of the complainant as credible or
reliable. This conclusion follows logically from the second
appellant’s discharge notwithstanding the incriminating evidence
given by the complainant against him. It is also evident from the
fact that the learned magistrate declined to convict the appellant on
the basis of any of the allegations of assault particularised in the
charge - the formulation of which must have been based on the
contents of his witness statement which he later repeated in Court.





The
evidence of the second witness for the State, Mr Hausiku, was also
compromised by material inconsistencies and conflicts as my Brother’s
judgment illustrates. It is nevertheless of some significance that
his evidence strongly suggests that the complainant was impatient and
refused to wait upon the appellant to finish his chores before
attending to the complainant. His testimony that the complainant
kept on “giving, handing the plastic bag” to the appellant is not
irreconcilable with the appellant’s evidence that the complainant
repeatedly pushed the plastic bag with the overall against his chest.
That evidence was also corroborated by the second accused. At issue
were the events that followed upon that conduct. According to Mr
Hausiku, the appellant pushed the complainant backwards. Although he
later qualified his observation by saying that they “started
pushing each other”. The appellant testified that he could not
remember that he had pushed the complainant but, if he had, he had
acted in an “automatic defensive act”. The second accused did
not see that the appellant pushed the complainant.





My
Brother concluded that the evidence presented by the Prosecution was,
given its inherent inconsistencies, lacking sufficient evidential
weight to convict the appellant and I agree. The conviction becomes
even less sustainable if it is considered together with the evidence
of the appellant and the second accused.






But I have a more fundamental
difficulty with the conviction: My concern is that the magistrate
convicted the appellant of the crime of common assault on the basis
of a particular act which did not from part of the charge. The
allegations which the appellant was required to meet in his defence
was that he had wrongfully, unlawfully and maliciously assaulted the
complainant by “grabbing him in the neck and trouser therewith by
clapping him with an open hand and kickin in the stomatch and thereby
incited two dogs to bite him” (sic) with intent to do the
complainant grievous bodily harm. Nowhere in the charge, it will be
noted, is it alleged that the appellant had “pushed” the
complainant. Yet, that was the express basis on which the magistrate
convicted the appellant.





The
charge against an accused person, whether presented in the form of a
“charge sheet” or of an “indictment”, is a vital step in the
context of criminal proceedings. The charge contains the allegations
of criminal conduct made by the Prosecutor-General on behalf of the
State against an accused person and presented for adjudication to a
competent Court of Law. It forms the very basis of criminal
proceedings against the accused. It not only serves to inform him or
her but also the Court of the case which the Prosecution intends to
prove. Considered together with an accused’s plea explanation and
formal admissions, it defines the lis between the State and
the accused and will eventually be the touchstone against which the
Court will measure the relevancy, admissibility, weight and
sufficiency of evidence during the trial.





Although
made in a different context, the comments of Miller JA in S v
Hugo
, 1976(4) SA 536(A) at 540E-G, apply equally to the
averments of the criminal conduct attributed to the appellant in this
case:






An
accused person is entitled to require that he be informed by the
charge with precision, or at least with a reasonable degree of
clarity, what the case is that he has to meet and this is especially
true of an indictment in which fraud by misrepresentation is alleged.
(Cf R v Alexander & Others, 1936 AD 445 at 457; S v
Heller & Another
, 1964(1) SA 524 (T) at 535H.) It is of
vital importance to such an accused to know what he is alleged
fraudulently to have said or done and he ought not to be left to
speculate as to the true nature of the misrepresentation laid to his
charge, nor to spell out of the charge possible misrepresentations
upon which the State might have intended to rely but which it did not
reasonably clearly describe. And when the State clearly specifies
the misrepresentations upon which it relies, the accused is entitled
to regard them as exhaustive and to prepare his defence in respect of
those representations and no other
.” (emphasis added).






The charge does not allege that the appellant
assaulted the complainant by pushing him. The appellant was
therefore not required to meet such an allegation of assault. It is
therefore not surprising that the appellant’s legal representative
did not even bother to cross-examine the second State witness on that
point – which was the high water mark of his evidence about the
nature of the assault on the complainant.





Whilst
conceding the appeal on the merits – correctly so, in my view - Ms
de Villiers nevertheless contends that the omission (referred to by
her as a “defect”) in the charge was cured by the evidence. In
support of that contention she relies on the provisions of section 88
of the Criminal Procedure Act, 1977. This section provides:





Where
a charge is defective for the want of an averment which is an
essential ingredient of the relevant offence, the defect shall,
unless brought to the notice of the court before judgment, be cured
by evidence at the trial proving the matter which should have been
averred.”






The
purpose of section 88, Cooper J pointed out in S v Kuse,
1990(1) SACR 191E at 196G-H, “was to abolish the principle accepted
in R v Herschel, 1920 AD 575 that an appellant was entitled to
rely on the point that a conviction based on a materially defective
charge was bad although the point was not taken at the trial.” He
observed that the section “is restricted to the omission of an
averment which is an essential ingredient of the offence and is thus
only operative when the omitted averment is an essential ingredient
of the relevant offence. (S v Moloinyane, 1965(2) SA 109 (O)
at 11C; S v Mayongo, 1968(1) SA 443E at 444H).”





The
charge which presents itself in this case is not defective “for the
want of an averment which is an essential ingredient” of the crime
of assault with intent to do grievous bodily harm. One is therefore
not dealing with a situation where the evidence adduced at a trial
might have had a curative effect as contemplated by s 88 (Cf S v
Nel
, 1989(4) SA 845(A) at 851B-C).





This
is also not a case where the provisions of sections 86(1) or (4) of
the Criminal Procedure Act apply. The Prosecution has not applied
for an amendment of the charge during the trial – nor has it done
so on appeal. In any event, even if they had I would have been
inclined to decline the application, not only because the power to
amend the charge on appeal should be sparingly exercised, but also
because prejudice would result to the appellant if such an amendment
is allowed. The approach of the Courts to such amendments has been
summarised by Trengove J in S v F,1975(3) SA 167(T) at 170G-H:






The
vital consideration in an application of this nature is, of course,
whether there is any possibility that an appellant may be prejudiced
if the amendment were allowed. According to the decisions of our
courts the test of prejudice, mentioned in s 118(1), is whether the
accused would be placed in no worse position than if the charge had
been framed in amended form when he was called upon to plead to it.
(S v Kearney, 1964(2) SA 495A); and, where the application to
amend a charge is made on appeal, as in the instant case, the Court
must be satisfied that the defence would have remained the same if
the charge had originally contained the necessary particulars. On
appeal the Court would accede to an application for an amendment of a
charge only if it were satisfied that there was no reasonable doubt
that the appellant would not be prejudiced. (R v Rohloff &
Others
, 1953(1) SA 274(C); S v Taitz, 1970(3) SA 342
(N).)”










Had the appellant been alerted at the outset of
the proceedings that he would be at risk to be convicted on the basis
that he had pushed the complainant, he would have challenged the
evidence of witnesses to that effect under cross-examination. As it
were, his legal representative did not ask the second state witness a
single question about the pushing to which he had testified.
Moreover, the appellant could have adduced evidence about the
allegation. Such evidence could have raised the possibility that he
had not acted at all, but that the movement observed was purely a
reflex; that he had not acted unlawfully, but in private defence or
that he had not acted intentionally.





For
the reasons given, I am satisfied that the magistrate convicted the
appellant on the basis of conduct which was not averred in the charge
and which, in the absence of an amendment, did not present a risk of
conviction during the trial to the appellant.





In
the premises, I agree that the appeal should succeed and I propose
that the following order be made:






The appellant’s conviction of
the crime of common assault and the suspended sentence subsequently
imposed by the Magistrate, Grootfontein, under Case No. 631/203, are
set aside and the following order is substituted:






Accused no. 1 is found not
guilty and discharged.”






_______________


MARITZ,
J.