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S v Butkus and Others ( Hcmdcriminaliappcal 53 of 2018 ) 2019 Nahcmd 173 (28 May 2019 )

This is an important new case with regard to the bail application on new facts
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Criminal law (LAWS 2014)

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REPUBLIC OF NAMIBIA

NOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

BAIL APPEAL

Case No.: HC-MD-CRI-APP-CAL-2018/

In the matter between:

BURUXA BURU BUTKUS 1 ST APPELLANT

LEE DOUGLAS SRTEES JENKINS 2 ND APPELLANT

WESLEY WELGEMOED 3 RD APPELLANT

VERANA SALZMANN 4 TH APPELLANT

and

THE STATE RESPONDENT

Neutral citation: Butkus v S (HC-MD-CRI-APP-CAL-2018/00053) [2019] NAHCMD 173

(28 May 2019)

Coram: VELIKOSHI AJ

Heard: 13 December 2018

Delivered: 13 December 2018

Reasons: 28 May 2019

Flynote: Criminal Procedure – Bail – Appeal – Regulated by s 65 of Act 51 of 1977 -

Appeal court to interfere only if magistrate exercised his or her discretion wrongly.

Appeal court limited to record of proceeding – raising new facts on appeal prohibited.

______________________________________________________________________

Reasons

______________________________________________________________________

VELIKOSHI AJ:

Introduction

[1] This is an appeal against the refusal of the district magistrate court to admit the

appellants to bail. On the 12th December 2018, after hearing arguments in this matter, I

delivered an ex tempore ruling and indicated that written reasons would follow.

Regrettably, the reasons were inordinately delayed due to administrative reasons. The

appellants were represented by Mr. Brockerhoff and the respondent was represented by

Mr. Moyo. After hearing the arguments, I made an order dismissing the first, second and

third appellants’ appeals. I upheld the fourth appellant’s appeal and granted the

following order:

‘1. In respect of appellants 1, 2 and 3 the appeal is dismissed and the decision of the

magistrate refusing to admit the appellants to bail is confirmed. The 1st, 2nd and 3rd appellants

are remanded in custody pending trial.

2. In respect of appellant No. 4 the appeal is upheld and the decision of the magistrate refusing

to admit her to bail is set aside.

3. The 4th respondent is granted bail in the sum of N$ 30 000 (thirty thousand Namibia Dollars)

with the following conditions:

3. The 4th appellant must hand in her travelling documents i. passport to the

investigating officer, Sgt. Malakia Nuule.

and the LSD mushroom suspected schedule 5 medicines (steroids). The fourth

appellant, who is a girlfriend of the first appellant, was also found sleeping at the said

residence. The appellants were then arrested and charged as above.

[4] At the time their application for bail in the court a quo was heard, the appellant

were only formally charged with two main counts namely, dealing in potentially

dangerous substances (drugs) and dealing dependence producing substances as well

as two alternative counts of possession of potentially dangerous dependence producing

drugs and possession of dependence producing substance. According to the

Investigating Officer, some of the drugs were sent to the laboratory for forensic analysis.

The laboratory results were to be expected within a month from the date the appellants’

bail application in the court a quo was heard, on the. 14 August 2018. The matter was

thereafter postponed for further investigations, specifically for the outstanding laboratory

results.

Court a quo’s reasoning

[5] The court a quo after going through the evidence of the appellants and the

respondent found that the second, third and fourth appellants posed a flight risk as they

were all foreigners who had no ties in Namibia. With regards to the first appellant whom

the trial court found not to be a flight risk because he was a Namibian citizen and

employed to Namibia, it was found that he may commit further offences once he is

admitted bail. The court applied s 61 of the Criminal Procedure Act 1 which empowered

the court to refuse bail if it was in the administration of justice to do so. The court found

that because of different drugs found at the first appellant’s home and the value of it, it

was not in the administration of justice to admit the first appellant to bail.

Grounds of appeal

[6] Aggrieved by the magistrate’s refusal to admit them to bail, the appellants lodged

an appeal. Upon being served with the notice of appeal, and the elaborate heads of

1 Act 51 of 1977 as amended hereinafter “the CPA”

argument the respondent opposed the appeal against all four appellants. The grounds

of appeal were framed as follows:

‘1. The learned Magistrate erred in law and/or fact by finding that the evidence presented by the

entire appellants was insufficient to prove their case on a balance of probabilities.

2. The learned magistrate erred in law and/or fact or materially misdirected himself by taking

into account his own unsubstantiated evidence which was not based on the evidence of the

investigating officer when concluding that 2nd, 3rd and 4th appellant is a flight risk.”

3. The learned Magistrate erred or misdirected in law by relying on section 61 of the Criminal

Procedure Act, no. 51 of 1977 CPA, as amended and applicable to Namibia, when concluding

that it will not be in the interest or that of the administration of justice to grant bail to 1st

appellant.”

4. The learned Magistrate erred in law and/or fact and committed a serious misdirection by

failing to pronounce himself on the strength of the state’s case against the 1st - 4th appellants,

especially where it has not been prima facie shown that the appellants are guilty of one or more

of the serious crimes or offences listed in part IV of the second schedule or, at least where the

investigating officer didn’t’ conclusively testify that there is a strong case against the appellants.”

5. The Learned Magistrate erred in law and/or fact by concluding that the 1st appellant will re-

offend without the presentation of credible evidence by the investigating officer or the

Prosecutor General.”

6. The learned Magistrate erred in law and/or fact by ordering the detention of all the appellant

without considering alternative and/or appropriate bail conditions.’

The Law

[7] It is trite that a Court when sitting and hearing an appeal against a lower court's

refusal to grant bail, is bound by the provisions of s 65(4) of the Criminal Procedure Act

51 of 1977 not to interfere and set aside the magistrate's decision unless such Court or

judge is satisfied that the decision was wrong, in which event the Court or judge shall

give the decision which in his or her opinion the lower court should have given. 2 The

2 S v Timotheus 1995 NR 109 (HC) at 112I

therefore, no need for the State to lead evidence to that effect, let alone the need to

substantiate them. The argument that the court a quo did not have sufficient evidence

before it to find that the appellants are a flight risk is thus with respect, without merit.

[12] The second and third appellants are foreigners from South Africa with whom

Namibia shares its Southern borders. The court in S v Yugin and Others 5 observed how

easily one can cross over our borders without being noticed. Hannah, J said the

following:

‘The next step is to consider the ties which an accused has with this country. This again

goes to the incentive to abscond. Common sense dictates that an accused who has been born

and bred in Namibia, whose home and family are in Namibia and who has no refuge elsewhere,

is less likely to abscond than an accused who is a foreign national resident here solely or mainly

for business reasons....

Another factor to be brought into the equation is an ability by an accused to abscond. It is said

that the appellants lack such ability because their travel documents have been surrendered,

their country of origin is far away and, in the case of the first appellant, he is seriously

incapacitated. I do not regard such matters to be insurmountable obstacles for a person who

has a real incentive to evade trial by leaving Namibia and returning to his home country. We

have many borders and, as experience has shown, they can be penetrated with relative ease.'

[13] While it may be easy for the second and third appellants to cross over the

Namibian borders into South Africa the same cannot be said for the fourth appellant

who is a German citizen. If one carefully evaluates the evidence of Sgt. Nuule linking

each accused to the offences that they are facing it is realised that the case against her

is not as strong as it is against the other appellants. The risk of her absconding,

although real is rather remote. On that basis alone, she is unlikely to abscond and the

court a quo ought to have considered her application for bail favourably. Even though

this court has in the past indicated that bail may be denied even where the risk of

absconding is remote, I am of the view that in her case appropriate bail conditions will

reduce her chances of absconding to none. The fourth appellant’s involvement in the

matter is also minimal.

5 2005 NR 196 (HC)

[14] On the argument that the State did not prove a prima facie case it is important to

note that the issue of proving a prima facie case is an issue that has to be decided by

the trial court. In this specific case however, there is evidence linking the appellants to

the case. In addition to the finding of several drugs at the house where the appellants

lived, the second and third appellants made extra curiae admissions to the arresting

officer Sgt. Nuule which were not disputed. The first appellant informed Sgt. Nuule that

he delivered a consignment of drugs to the first appellant for a fee because he needed

to help his mother who was struggling to make ends meet after the death of his father.

These too were the words of the third appellant. Sgt. Nuule also testified that the

appellants were arrested after an operation involving an informer who was set to

purchase drugs from one of the appellants. In addition, Sgt. Nuule stated that the

States’ case against the appellants is very strong, although he added that some of the

drugs were sent to the laboratory for testing. When he gave his evidence he said the

laboratory results would be available within a month. Apart from the appellants’ bare

denial, the appellants failed to show that the state’s case against them is weak or

altogether non-existent to the effect that they will eventually be acquitted.

[15] Mr Brockerhoff also argued that because the appellants have been in custody for

about six months as trial awaiting prisoners, this court should admit them to bail. This

fact was not placed before the magistrate to consider. Well, it did not exist then. In S v

Moussa 6 Parker, AJ held that a long period of detention after bail application constitutes

new facts which the court may consider in the next application. Section 65(2) of the

CPA explicitly prohibits an appeal against the refusal of bail based on new facts. But

there is more, the fact that the appellants have been in custody for a period of time after

their initial bail application has failed has not been raised in the notice of appeal. It

cannot be introduced and supplemented in their oral arguments.

[16] In respect of the Namibian citizen the court correctly found that he is not a flight

risk. He was nonetheless denied bail because it would neither be in the interest of the

administration of justice nor that of the public. By invoking the provisions of s 61 of the

CPA, Mr Brockerhoff argued that the court has misdirected itself. Mr Brockerhoff argued

6 2015 (3) NR 800 (HC) also see S v Miguel 2016 (3) NR 732 (HC) p. 743 G-H

the appellant intend to lodge an appeal against the refusal of bail is one that has an

effect on the seriousness and/or the strength of the State’s case, the appellant and/or

his legal practitioner must show that the outstanding laboratory results or further

investigations would not strengthen the State’s case against them. In this case for

example, some drugs were sent for forensic analysis, the results of which were to be

expected within a month. Obviously, one would expect the outcome of the forensic

analysis to have an effect on the seriousness offences against the appellant. It would

either strengthen or weaken the State’s case against them.

[19] For an appeal that was lodged almost 6 months later, I am of the view that it

would have been desirable for the appellant’s legal practitioner to first have acquainted

himself with the laboratory results before lodging an appeal to this court. The laboratory

results may have confirmed the investigating officer’s suspicion that the appellant dealt

in potentially dangerous dependence producing drugs such as cocaine or just in much

less serious offence of dealing in dependence producing substances. The gravity of the

sentence to be expected depends on the seriousness of the charges preferred against

the appellant. The more the likelihood of him or her being sentenced to a short

imprisonment term or to a non-custodial sentence the lesser the temptation and the risk

of absconding. It is my considered view, that the appellant had and perhaps still have

much brighter prospects of succeeding in their bail application based on new facts in the

district court than on appeal.

[20] On an analysis of the evidence as a whole and the arguments advanced in this

matter it follows necessarily that, except for the fourth appellant whose appeal was

upheld, the appellants had not succeeded in demonstrating that the decision of the

court below was wrong for this court to set it aside. The foregoing were the reasons for

the orders I have made in my ex tempore judgment.

________________

ITON Velikoshi

Acting Judge

APPEARANCES:

Applicant: Mr. T Brockerhoff

Brockerhoff & Partners

Respondent: Mr. E Moyo

Office of the Prosecutor-General, Windhoek

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S v Butkus and Others ( Hcmdcriminaliappcal 53 of 2018 ) 2019 Nahcmd 173 (28 May 2019 )

Course: Criminal law (LAWS 2014)

941 Documents
Students shared 941 documents in this course

University: University of the Witwatersrand, Johannesburg

Was this document helpful?
1
REPUBLIC OF NAMIBIA
NOT REPORTABLE
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
BAIL APPEAL
Case No.: HC-MD-CRI-APP-CAL-2018/00053
In the matter between:
BURUXA BURU BUTKUS 1ST APPELLANT
LEE DOUGLAS SRTEES JENKINS 2ND APPELLANT
WESLEY WELGEMOED 3RD APPELLANT
VERANA SALZMANN 4TH APPELLANT
and
THE STATE RESPONDENT
Neutral citation: Butkus v S (HC-MD-CRI-APP-CAL-2018/00053) [2019] NAHCMD 173
(28 May 2019)
Coram: VELIKOSHI AJ
Heard: 13 December 2018
Delivered: 13 December 2018

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