Court bungles gang rape conviction
THE Oshakati High Court has set aside the convictions and 20-year imprisonment sentences of three youths - one a minor then – on charges of raping a mentally challenged girl in Outapi.
The three, Antonio Jeremia, Fillipus Josef Mutimeni and Tomas Mateus Tjiwana were convicted in the regional court of Outapi on one count of rape and two counts of assisting their coaccused to commit rape and sentenced to 20 years in prison each in September 2017.
They appealed their conviction and sentence in time, but the appeals were only registered at the Outapi Magistrate’s Court in March 2019. Acting judges Eduard Kesslau and David Munsu, who heard the appeals, lamented this delay and said that an appeal is inherently an urgent matter that should be heard as soon as possible.
According to the judges, the appellants followed a long and winding road to reach the court of appeal. Another thorn in the flesh of the judges was the fact that the record of proceedings was of such a poor state that it was not helpful at all in adjudicating the appeal.
“The record before us consists of the cryptic handwritten notes of the magistrate, a typed version of the said notes, the warning statements in respect of the first and second appellants, a medical report and a photo plan. It is unclear if the proceedings were mechanically recorded as there is no such indication on the magistrate’s notes. The handwritten notes are impossible to read without guessing and assuming words and phrases. The typed version is no better as the person who attempted to reduce the magistrate’s handwritten notes into a typed version struggled and repeatedly omitted words,” the judges remarked.
They further said that apart from the incomprehensible record, there are also obvious procedural errors.
“The rights that were explained are indicated with a one sentence entry on the record. The terms in which these rights were explained were not recorded. For instance, regarding the right to legal representation, the learned magistrate simply recorded that the accused informed the court that they will represent themselves. The explanation to the accused, if any was done, is not recorded. Over and above, at the stage when the matter was referred to the regional court, the accused required legal aid and it was not recorded anywhere at which stage and whether they waived their right to legal aid,” the judges stated.
They further said that not only is the record incomplete, but it is riddled with evidence that makes no sense.
“It would be unfair towards the administration of justice to rely on such a completely inadequate record. The defects are material in nature and covers almost all aspects of the proceedings. An appeal cannot be adjudicated on guessing, speculations, assumptions and inventions,” the judges stated and continued that as the appeal cannot be heard through no fault on the part of the appellants, it will be highly prejudicial to them if their appeal results in a failure of justice and wherever failure of justice is impossible to rectify a conviction cannot stand.