S v Karel (CRIMINAL 17 of 2016) [2016] NAHCMD 68 (11 March 2016)
A partly heard criminal trial must be started afresh before another magistrate if the original magistrate is no longer available; if the original magistrate is still available, the trial must continue to finality.
Source-derived case information.
- Citation
- [2016] NAHCMD 68
- Parties
- Prosecution: The State; Accused: Jonas Karel
- Court
- High Court Main Division
- Jurisdiction
- Namibia
- Case Number
- CRIMINAL 17 of 2016
- Procedural Posture
- Criminal / Review Judgment
- Outcome
- Conditional order: If the original magistrate is available, the withdrawal is set aside and the trial must continue; if not, proceedings are set aside and a new trial must commence before another magistrate.
- Legal Topics
- Housebreaking With Intent to Steal and Theft, Trial De Novo, Withdrawal of Proceedings, Magistrate Unavailability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The State
Prosecution
Jonas Karel
Accused
Procedural Posture
Criminal / Review Judgment
Legal Issues
- 1 Whether a new magistrate can continue a partly heard criminal trial when the original magistrate is unavailable
- 2 Proper procedure when a trial magistrate leaves employment before conclusion of a partly heard matter
Ratio Decidendi
A partly heard criminal trial must be started afresh before another magistrate if the original magistrate is no longer available; if the original magistrate is still available, the trial must continue to finality.
Court Disposition
Conditional order: If the original magistrate is available, the withdrawal is set aside and the trial must continue; if not, proceedings are set aside and a new trial must commence before another magistrate.
Orders
- If Magistrate Mayumbelo is still in the Magistracy, the withdrawal is set aside and the trial must continue to finality.
- If Magistrate Mayumbelo is no longer available, the proceedings are set aside and a new trial must commence before another magistrate at Katutura Magistrate’s Court.
Full Case Text
Judgment text and source record
1 paragraphs
REPUBLIC OF NAMIBIA NOT REPORTABLE REPORTABLE HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK JUDGMENT Case no: CR 17/2016 In the matter between: THE STATE and JONAS KAREL ACCUSED (HIGH COURT MAIN DIVISION REF. NO. 336/2016) (MAGISTRATE SERIAL NO. 9/2016) Neutral citation: State v Karel (CR 17/2016) [2016] NAHCMD 68 (11 March 2016) Coram: SIBOLEKA J AND USIKU J Delivered: 11 March 2016 Flynote: Criminal law: In a criminal trial where witnesses have already testified, evidence has been recorded and the trial Magistrate leave his employment to elsewhere the matter should start afresh before another Magistrate. Summary: The accused appeared before the Magistrate at Katutura. He pleaded not guilty and evidence was recorded. Another Magistrate withdrew the matter because the trial Magistrate was not there and the complainant had in the meantime passed away. Held: This is a partly heard matter if the trial Magistrate is no longer available, another Magistrate at the same station must start the trial afresh. ___________________________________________________________________ ORDER ___________________________________________________________________ If the trial Magistrate Mayumbelo is still an employee of the Magistracy: The withdrawal of the matter is set aside. The Magistrate must continue with the trial until finality. If the trial Magistrate Mayumbelo has in the meantime left the Magistracy and is no longer available: The proceedings are set aside and another Magistrate at the same station must start the matter afresh. REVIEW JUDGMENT SIBOLEKA J (USIKU J concurring): [1] This is a review matter. [2] The accused appeared before the Magistrate’s Court, Katutura, Windhoek on a charge of Housebreaking with intent to steal and theft. He pleaded not guilty and the trial started, the evidence of two witnesses was heard. From here numerous postponements followed till another Magistrate withdraw the matter. [3] In the light of the above I make the following order: If the trial Magistrate Mayumbelo is still in The Magistracy the withdrawal of the matter is set aside. He must avail the prosecution an opportunity to call further witnesses if any and continue the hearing to finalize the matter without any delay. If the trial Magistrate Mayumbelo had in the meantime left the Magistracy: The proceedings are set aside. Another Magistrate at Katutura Magistrate’s Court should be assigned to start the trial de novo seeing that evidence had already been recorded. _____________ A M SIBOLEKA Judge D N USIKU _________ Judge