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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

REVIEW JUDGMENT

Case no: CR 23/2018

In the matter between:

THE STATE

v

BARRY DREYERACCUSED

(HIGH COURT MAIN DIVISION REVIEW REF NO. 315/2018)

Neutral citation:S v Dreyer(CR23/2018) [2018]NAHCMD78 (05 April 2018)

Coram:USIKU J, et UNENGU AJ

Delivered: 05 April2018

Flynote:Criminal Procedure – Criminal Review – Where an accused is found in possession of different types of drugs, such an accused must be charged with different counts pertaining to each type of drug.

ORDER

  1. The conviction and sentence is set aside.
  2. The matter is remitted back to the trial court with the direction to question the accused properly in terms of section 112(1)(b) of the Criminal Procedure Act on separate counts, and to deal with the accused in accordance with the law.

REVIEW JUDGMENT

USIKU J, (UNENGU AJ concurring)

[1]The matter was submitted to this court for review in terms of section 302 (1) of the Criminal Procedure Act by the magistrate of Aranos.

[2]The accused appeared at Aranos Court in the district of Marientalon two charges of dealing in dependence producing substances. Accused appeared in person and admitted that he was found in possession of 100 mandrax tablets containing methaqualone and 1 ½ ballie of cannabis. The state withdrew one count which is in relation to the 1 ½ ballie of cannabis.

[3]With regards to the mandrax tablets, the state failed to prove its case beyond reasonable doubt that the accused was dealing. The court then found the accused guilty of being in possession of dependence producing drugs in contravention of section 2(a) read with sections 1, 2 (i) and / or (2) (iv), 7, 8, 10, 14 and Part II of the Schedule of Act 41 of 1971, as amended. The court having satisfied itselfproceeded to sentence the accused to a fine of N$ 3000.00 or a term of 18 months imprisonment.

[4]The following query was directed to the magistrate: ‘Where an accused is found in possession of different types of drugs such as cannabis and mandrax, is it not desirable to charge such person with two different counts?’

[5]The learned magistrate responded as follows:

‘Herewith the author concede with the Honourable Judge’s review remarks. However in the current matter the accused was charged with 2 counts being dealing in dependence producing substance, state withdrew one count and only proceeded with count 1. During submission the state brought an application in terms of section 86 of the Criminal Procedure Act 51/1977, for the charge to be amended and the charge was altered to Dealing with dangerous dependence producing substance without an alternative count. As the state could not prove its case beyond reasonable doubt in respect of the possession of Cannabis, the said accused was convicted on competent verdict in respect of possession of mandrax tablets. The author as per said annexure noticed that the accused was not charged with two different counts, the author thus requests for Honourable Judge’s directions in this regard.’

[6]As borne out by the record of the proceedings in the magistrate court, count 2 in respect of the cannabis was withdrawn due to the fact that it was found to be a duplication of charges. This, however, cannot be the case as count 1 and count 2 specifically relate to two different substances namely mandrax and canabis. Furthermore as borne out by the transcribed record, when the accused was questioned in respect of count 1, the court asked questions relating both to the 100 mandrax tablets as well as the 1 ½ ballie of cannabis. This is clearly not permissible as those are two distinct types of drugs that call for two different charges. The court cannot ask questions pertaining to the 1 ½ ballie of cannabis as if it is part of count 1 which relates to mandrax. This is the reason why this court queried the learned magistrate in the manner it did.

[7]It is for these reasons that the learned magistrate erred in law/ or fact when she questioned the accused on count 1 and also included the 1 ½ ballie of cannabis which is a different substance. In my view, the learned magistrate ought to have questioned the accused on a different count separately.

[8]In the result, the following order is made:

  1. The conviction and sentence is set aside.

2.The matter is remitted back to the trial court with the direction to question the accused properly in terms of section 112(1)(b) of the Criminal Procedure Act on separate counts, and to deal with the accused in accordance with the law.

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DN USIKU

Judge

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P UNENGU

Acting Judge