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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CA 81/2013

In the matter between:

SERGEY PARAKETSOV APPELLANT

and

THE STATE RESPONDENT

Neutral citation: Paraketsov v State (CA 81/2013) [2014] NAHCMD 132 (28 March 2014)

Coram: HOFF J and SIBOLEKA J

Heard: 31 January 2014

Delivered: 28 March 2014

Reasons: 11 April 2014

Summary: Machine generated evidence – may be accepted in a court of law on the basis of professional (expert) testimony, firstly, regarding the trustworthiness of the process or instrument in general (when not otherwise settled by judicial notice), and secondly, testimony of the correctness of the particular instrument used.

The extent to which a court will insist upon, or relax the standard of proof when evidence involving the use of scientific instrument is presented will depend upon (a) the nature of the process and instrument involved in a particular case, (b) the extent, if any, to which the evidence is challenged and (c) the nature of the enquiry and the facta probanda in the case.

In casu, diamond testers found to be devices which are not sufficiently well known for their trustworthiness which would enable a court to take judicial notice of the reliability of the process as well as the reliability of the results.

Affidavit in terms of s 212 of Act 51 of 1977 – the aim in general is to provide for the reception of affidavits and certificates on their mere production as prima facie proof of their contents, and thus make serious inroads not only into the domain of the hearsay rule, but also to an accused’s right to a fair trial (including the right to cross-examination).

The requirements (jurisdiction facts) as well as the ambit of the relevant section must be strictly observed and interpreted.

Section 212(5) of Act 51 of 1977 found to provide prima facie proof of the mass or value of a precious metal or a precious stone but not prima facie proof of the nature thereof, in casu, that it was a rough or uncut diamond.

ORDER

(a) The appeal is upheld.

(b) The conviction and sentence are set aside.

JUDGMENT

HOFF J (SIBOLEKA J concurring):

[1] The appellant, a Russian national, residing in the Republic of Namibia, and who has a PhD degree in Geology, was charged in the magistrate’s court for the district of Swakopmund for the unlawful possession of one rough or uncut diamond with a mass of 24.58 carats and valued at N$19 369. At the end of a trial the appellant was convicted as charged and sentenced to a fine of N$25 000 or 3 years imprisonment.

[2] The appellant subsequently appealed against both the conviction and sentence.

[3] The appellant, who was legally represented during the trial, pleaded not guilty. In his plea explanation the appellant admitted that a stone was found in his possession on 23 June 2009 and at his residence in Swakopmund but denied any knowledge as to the nature of that stone and specifically denied knowledge whether it was an uncut, rough or unpolished diamond. The appellant explained that he ‘obtained the stone from several stones he purchased from a street vendor and that the stone could have been any of semi precious stones’.

[4] The first witness called by the State was detective sergeant Justice Muruko attached to the Drug Enforcement Unit of the Namibian Police Force. He testified that during a search of the house of the appellant he inspected a safe which contained money (Namibian Dollars and US Dollars) and a bag in which there was a orange plastic bag which contained two stones. One stone appeared to be a diamond. The appellant, on being questioned, stated that the other stone was a garnet and that the suspected stone was ‘indeed’ a diamond.

[5] He called members of the Protected Resources Unit in Swakopmund who subsequently arrived with a ‘diamond tester machine’. The suspected stone was tested in the presence of the appellant and tested positive as a diamond. The appellant was thereafter arrested and brought to the police station. This witness testified that he received training in respect of the identification of ‘this kind of precious stone’. He testified that the appellant never denied that the stone was a diamond. His testimony further was that the diamond was placed in an exhibit bag marked NFB 00197 and taken by members of the Protected Resources Unit (PRU).

[6] During cross-examination this witness stated that he suspected the one stone to be a diamond and that he could not explain how a diamond differs from a garnet or a zircon or a cassiterite. The witness emphasised that the first stone he removed from the plastic bag was referred to by the appellant as a garnet and the second one appellant said was a diamond. This witness was confronted with his witness statement in which he stated that he found a small polished diamond. The witness explained that this was a mistake and that he ‘mixed it up’ because he did not read through his statement.

[7] The second state witness, Martin Indongo, is a member of the Namibian Police Force holding the rank of detective inspector and at the time of the arrest of the appellant was attached to the Protected Resources Unit in Swakopmund. He testified that a search warrant had been obtained to search for drugs at the house of the appellant. He testified that during their search, and inside a safe, two objects were found. One ‘was clear in colour which was cut and polished whilst the other was brownish, uncut and unpolished’. Upon examination he realised they were both diamonds, and informed the appellant that the two objects were diamonds, whereupon the appellant confirmed it and explained that he received the unpolished diamond from one Carlos Lubowski for safekeeping. He contacted members of the PRU who subsequently arrived with a diamond tester. He tested both stones in the presence of the appellant and established that both stones were ‘genuine diamonds’. He handed the uncut diamond and the polished diamond to warrant officer Tjiramba. This witness (Martin Indongo) testified that he was able to identify a diamond with his ‘naked eyes’ and explained that when a diamond tester is used a green light is emitted if it is ‘genuine diamond’ and if it is a ‘fake’, the light is orange in colour.

[8] During cross-examination D/Insp. Indongo testified that he could not recall any conversation about a garnet but that the appellant said that the stones were industrial diamonds and were of no value. D/Insp. Indongo was asked whether he would be able to differentiate between a diamond and zircon to which he replied that such a question should be asked to the expert. It was further put to this witness that the appellant would deny that he said it was a diamond to which he replied that the appellant did say that it was an industrial diamond.

[9] The third witness called by the State was Kaseyema Tjiramba a member of the Namibian Police Force and who was the unit commander of the Protected Resources Unit. On the day in question he was requested by D/Insp. Indongo to bring a diamond tester to the house of the appellant. On his arrival he found Sgt Muruko, D/Insp. Indongo, and other members, as well as the occupants of the house. He testified that Sgt Uugwanga tested the two objects resulting in a positive identification, ie the objects were diamonds. According to him one object was a clean polished diamond whilst the other one was still rough and uncut and that the appellant explained that the rough and uncut diamond was an industrial diamond. On 1 July 2009 he returned the polished diamond to the appellant. The uncut diamond was locked in a safe. Prior to transporting the uncut diamond to Windhoek for evaluation it was sealed with an official seal.

[10] Two documents were handed in as exhibits. A letter from the Ministry of Mines and Energy, certifying one Mr M Izaaks was authorised in terms of s 10(c) of the Diamond Act 13 of 1999 to act as an agent for the Ministry to check and evaluate diamonds and to attend court as an expert witness, was marked ‘Exhibit C’, and an affidavit in terms of s 212(5) of the Criminal Procedure Act 51 of 1977 was marked as ‘Exhibit D’.

[11] The legal representative of the appellant (in the court a quo) did not object to the handing in of these two documents as exhibits, but stated simultaneously that he reserved the right to argue the ‘evidential and probative value’ of these documents.

[12] The State’s case was hereafter closed. An application in terms of s 174 of Act 51 of 1977 was unsuccessful.

[13] The appellant testified that when the two stones were found by officer Muruko he informed the officer that the small stone was a cut and polished diamond which he had bought. When asked, he explained that the second stone (dark brown to black in colour) could be a garnet whereafter D/Insp. Indongo stated that the stone might be a diamond and a test was needed. Officer Tjiramba was then called to bring a diamond tester. When officer Tjiramba arrived with one Maria Uugwanga, Uugwanga performed the test. The result was negative and after D/Insp. Indongo had tested the objects himself, the result was positive and he was informed by D/Insp. Indongo that he was under arrest and thereafter he was questioned. He told D/Insp. Indongo that the one stone could be an industrial diamond. He testified that when he acquired the stone it confused him as it could have been garnet or zircon or cassiterite and that the stone had a cubic structure.

[14] During cross-examination the appellant stated that he told the police that if it was a diamond, it could have been an industrial diamond with a low value and this was said after the police had tested the stone. The appellant testified that his knowledge of diamonds is ‘academic knowledge’, but stated that the diamond tester used was not a reliable instrument.

[15] The appellant in his notice of appeal referred to seven grounds of appeal:

1.  The magistrate erred in finding that the State has proved beyond reasonable doubt that the stone forming the object of the charge was an unpolished diamond, by holding that exhibit D, being the affidavit of the diamond valuator deposed to in terms of s 212(5) of the Criminal Procedure Act could upon its mere production be used as prima facie evidence of the nature of the stone, since s 212(5) may only be used as prima facie evidence of the mass or value of a precious stone.

2.  The magistrate erred in finding that the contents of exhibit C and exhibit D is admissible evidence in the light of these exhibits being copies therefore being secondary evidence in the absence of any explanation by the State as to the whereabouts of the original documents, and in view of the light that the appellant reserved his rights to argue the evidential and probative value of these exhibits.

I must at this stage remark that the legal representative during the trial did not object that certified copies of these exhibits be handed in as exhibits, and to argue now that they were inadmissible evidence because of the fact that they are secondary evidence of the originals, and therefore inadmissible, is to say the least, opportunistic. The legal representative of the appellant however did argue before judgment that exhibit D may in terms of s 212(5) only be used to prove the mass or value of precious stone and not its nature, namely that it was an unpolished diamond.

3.  The magistrate erred (if on the assumption that exhibit D could be used to prove the nature of the stone) in finding that the stone examined by the diamond valuator, Mr Manfred Izaaks, is beyond reasonable doubt the same stone found in possession of the appellant.

4.  The magistrate erred in finding that the criminal register number (CR number) which was opened against the appellant is CR 154/06/2009 in the absence of any evidence, alternatively sufficient evidence in support thereof.

5.  The magistrate erred in accepting the State’s evidence on the handling of the stone after its confiscation and its subsequent examination by the government valuator in the light of certain unexplained discrepancies in the State’s evidence.

6.  The magistrate erred in finding that the appellant’s exculpatory evidence presented in defence of the charge, was beyond reasonable doubt false and that it could not be reasonably true under the circumstances by failing to find that the stone forming the object of the charges could be either a cassiterite, a garnet or a zircon.

7.  The magistrate erred in finding that the State has proven beyond reasonable doubt that the appellant had the necessary mens rea to be in wrongful possession of the unpolished diamond by finding that the appellant knew the stone he possessed was an unpolished diamond where as the appellant’s uncontested evidence was that appellant inspected the stone and found it displayed characteristics uncommon to that of an unpolished diamond.

First ground of appeal: State did not prove beyond reasonable doubt that the stone forming the object of the charge was an unpolished diamond

[16] This ground of appeal relates to the nature of the stone found. It was submitted by Mr Marondedze on behalf of the respondent that the State witnesses testified that the appellant told them that the stone in question was a diamond and that given the expertise of the appellant (employed as a geologist for 23 years doing geological explorations of minerals), it is clear that the appellant knew that the stone was a diamond therefore, so it was submitted, the evidence of the State witnesses that the appellant told them as such must be the truth.