NOT REPORTABLE

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

APPEAL JUDGMENT

Case no: CA 29/2013

In the matter between:

EPHRAIM TAAPOPI APPELLANT

and

THE STATE RESPONDENT

Neutral citation: Taapopiv The State (CA 296-2013) [2015] NAHCNLD 34(27 July 2015)

Coram:TOMMASI J and JANUARY J

Heard on:22 June 2015

Delivered: 27 July 2015

Flynote: Appeal – Criminal Procedure – Calculation of dies for noting of criminal appeal in terms of rule 67 of the Magistrate’s Court Rules.

Criminal procedure – Discharge in terms of s174 – Prosecutor concededthat evidence on the a charge of attempted murder was “shaky” – Court a quo ruled that the appellant be put on his defense on the issue of assault GBH which is a competent verdict on a charge of attempted murder. The court a quo convicted the appellant of attempted murder after hearing the evidence – Quaere – Did the prosecutor “abandon’ or “withdrawn” the charge of attempted murder and was the magistrate under the circumstances entitled to convict the appellant on the charge of murder.

Summary: The appellant was charged with attempted murder. He applied for a discharge in terms of s174. The State conceded that the evidence was “shaky” and the magistrate ruled that the appellant be put on his defense on the issue of assault GBH. After the appellant testified the court a quo reverted to the original charge and convicted the appellant of attempted murder. This court held that it cannot be said that the prosecutor had abandoned or withdrawn the prosecution and the magistrate erred when he convicted the appellant of attempted murder. The court found that the state did not prove assault GBH and upheld the appeal.

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ORDER

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  1. The appeal is upheld;

2.The conviction on the charge of attempted murder and the sentence imposed in respect thereof are set aside.

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JUDGMENT

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TOMMASI J (JANUARY J concurring)

[1]The appellant was convicted in the district court of three counts. He however appeals only against the conviction and sentence imposed in respect of the first count of attempted murder. He was sentenced to five years’ imprisonment of which 2 years’ imprisonment was suspended.

[2]MrShileka, counsel for the State argued that the appellant noted his appeal out of time and failed to apply for condonation. MrNamandje, counsel for the appellant,pointed out that the appeal was filed within the 14 days prescribed by Rule 67 read with Rule 2(2) of the Magistrate’s Court Rules. Rule 2(2) provides that a Saturday, Sunday or public holiday shall not, unless the contrary appears, be reckoned as part of any period calculated in terms of the Magistrate’s Court rules. The appellant was sentenced on 1 December 2011 and the notice of appeal was received at the Magistrate’s court on 19 December 2011. The appellant’s notice of appeal was thus filed within the 14 days (as defined by rule 2(2)) and the State’s point in limine was dismissed.

[3]The appellant raised five grounds of appeal against conviction. MrNamandje highlighted the following two grounds which are numbered 2 and 5 in the notice of appeal:

“(1) that the State made a concession that it had not adduced sufficient evidence to prove beyond reasonable doubt that the appellant had an intention to kill the complainant; and

(2) the learned Magistrate overlooked the fact that the court pronounced itself and made a ruling that the appellant was to be placed on his defense on the charge of assault with intent to cause grievous bodily harm; and thereafter misdirected itself by convicting the appellant of attempted murder.”

[4]The appellant was charged that he, on 5 July 2008 at or near Shamoo Bar in the district of Outapi, unlawfully and intentionally assaulted David Alfeus by shooting him on the leg with a pistol with the intent to murder him. The appellant pleaded not guilty and formally admitted in terms of s 220 of the Criminal Procedure Act, 51 of 1977 that he fired the shot which struck the left leg of the victim. He furthermore did not dispute the date and place. The State was thus left with the burden to prove that he the shooting was unlawful and intentional.

[5]The State called three witnesses. Not one of these witnesses actually saw the appellant shooting the complainant. The complainant’s version was that he admonished an unknown man for insulting a lady. The appellant threw alcohol in his face and disappeared. When he re-appeared he came within 2 meters of him and lifted up his arm. A shot went off and hit him on his thigh. He did not see the appellant shooting him. He denied that there was a fight. The lady who was being insulted contradicted his evidence and testified that there was a fight prior to the gunshot being fired. She however did not see the shooter. The last witness for the state did not see anything as he arrived after the shooting.

[6]The State closed its case after adducing the above evidence and the appellant applied for a discharge in terms of section 174. The State prosecutor in response to the application made the following statement: “On the first count of attempted murder the evidence is very shaky, 2 meter is very close if the accused wanted to kill.Reasonable inference will be that the accused aimed at that part of the body, intention to kill is not shown to the court. In terms of section 258 of CPA 51, of 1977 says competent verdict. On the evidence before court, accused should be put on his defense for assault grievous bodily harm on that aspect.” (sic)

[7]The court ruled as follow: “… accused will be put on his defense on the issue of assault with intent to do grievous bodily harm.”

[8]The Learned magistrate in his response to the two grounds of appeal gave the following additional reasons:

1. The State is not the one to pass judgment but the court. The concession made by the Statewas even made at a wrong state and it is only an application to court, the court is not bound by it.”

2.Yes, court made that ruling that accused be put on his defence on the charge of assault with intent to do grievous bodily harm. But the court was misled by the state it was not even the stage to say that, this was done by the State, with reasons only known by the state. The error is regretted and at that stage no judgment was passed yet for the charges accused was facing. (sic)

[9]MrNamandje, referring to R v Shikumba[1]argued that the prosecutor had effectively abandoned its reliance on the charge of attempted murder at the close of the State’s case. The crisp question is whether the prosecutor indeed abandoned the state’s case against the appellant for attempted murder. The prosecutor was addressing the court in response to the appellant’s application for a discharge in terms of s174. He indicated that he was not confident that he would be able to get a conviction on the charge of attempted murder but that the accused should be called upon to defend himself on assault GBH which was a competent verdict. It does not appear to me that the prosecutor intended to stop the prosecution in terms of s6(b) of the CPA. It must be borne in mind that the appellant was charged with only one count and not a main and alternative count. The prosecutor was referring to a conviction of a competent verdict on the same count the appellant was charged with. It cannot be said that he had abandoned or stopped the prosecution on the single count of attempted murder. In S v Fourie[2]the full bench of this court cited with approval S v Bopape[3] where Corbett J stated the position to be the following in a passage appearing at 149B – C:

'It seems to me that there are three possible attitudes which a prosecutor may adopt towards a prosecution. He may press for a conviction, or he may stop the prosecution, or he may adopt an intermediate, neutral attitude whereby he neither asks for a conviction nor stops the prosecution but leaves it to the court to carry out the function of deciding the issues raised by the plea of not guilty.'

In this instance the prosecutor merely made submissions to the court and had left the matter in the hands of the court to decide whether or not to grant the discharge.

[10]The magistrate was called upon to rule whether the appellant should be discharged or not. Section 174 provides that:

“if, at the close of the case for the prosecution at any trial, the court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty.”

The court a quo held the view that the state adduced evidence which may warrant a conviction of assault with the intention to do grievous bodily harm which is a competent verdict on a charge of attempted murder in terms of section 258 of the Criminal Procedure Act. Under these circumstances the court a quo was not empowered to grant a discharge. The court a quo therefore ought to have dismissed the application in terms of section 174 particularly in clear and unambiguous language.

[11]The court a quo however phased his ruling in such a manner that it is open to more than one interpretation. MrShileka submitted in argument that the court a quo expressed no judgment and its ruling should be interpreted as a dismissal of the appellant’s application. The additional reasons of the learned magistrate state that he made the ruling being misled by the prosecutor. This speaks of his mindset at the time he made the ruling. Contrary to his remark that he expressed no judgment, he in fact meant to place the appellant on his defense only in respect of a charge of assault GBH. The unavoidable conclusion is that the learned magistrate, albeit erroneously, expressed a judgment i.e to discharge the appellant on the count of attempted murder. Even if I am wrong in this regard, the ruling was open to such an interpretation by the appellant and his legal counsel. The appellant had a legitimate expectation that he was not called upon to answer to a charge of attempted murder and that he had been discharged on this count.

[12]The court a quo misdirected itself when it convicted the appellant of attempted murder and that conviction cannot be permitted to stand.

[13]This court may do what the court a quo ought to have done i.e to consider whether the state proved that the appellant was guilty of assault GBH. The appellant testified that the complainant was fighting with his brother. He tried to separate them but was unable to do so. He noted that the complainant had a fire-arm and he went to fetch his fire-arm out of the car. He aimed for the ground between the two fighting persons in order to stop the fight but the bullet struck the complainant.

[14]The complainant denied the fact that there was a fight. One State witness corroborated the version of the appellant that there was a fight. It is accepted that the shooting was preceded by a fightand the appellant’s version of what transpired during the fight is the only version. The various statements of the state witnesses which were handed into evidence by appellant’s counsel was accepted by the court a quo without the defense having laid any basis for its reception and it is, for purposes hereof, disregarded.

[15]The appellant’s defense was that he acted in defense of his brother who was under attack at the time he fired the fire-arm. This version is reasonably possibly true. The complainant confirmed that he had a fire-arm although he denies using it. The appellant however was aware of his possession. The force used to ward off the attack of the complainant cannot be said to have been excessive in view of the complainant’s possession of a firearm.On the evidence recorded it cannot be said that the state proved beyond reasonable doubt that the appellant was guilty of assault with the intent to do grievous bodily harm.

[16]In the premises the following order is made:

The appeal is upheld;

The conviction on the charge of attempted murder and the sentence imposed in respect thereof are set aside.

------MA Tommasi

Judge

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H C January

Judge

Appearance

Appellant:MrNamandje SisaNamandjeCoInc

c/oMugaviri Attorneys

Respondent;AdvShileka

Of the office of the prosecutor general

1

[1]1955 (3) 125 at 127 B- E

[2]2014 (4) NR 966 (HC) at p 960, para 17,

[3]1966 (1) SA 145 (C)