Legality of arrest under spotlight
A man who escaped after his arrest on two counts of housebreaking argued that the Magistrate's Court erred when it ordered his detention.
Ruben Awaseb, from Mariental, is appealing against his conviction and argues that the court relied on the evidence of police officers who could not testify about the circumstances causing him to be in custody prior to his escape on 21 October 2014.
On 23 February last year, Awaseb was convicted of escape from lawful custody and sentenced to two years' imprisonment. He had escaped after he found his cell door was left open.
He had been detained on two charges of housebreaking. Two warrants of detention were produced to show that he was in custody, but this did not satisfy the court regarding the lawfulness of his detention.
Awseb pleaded not guilty but did not provide a plea explanation.
At the close of the State's case he brought an application for discharge, which the court refused.
He closed his case without testifying but was subsequently convicted as charged and sentenced to two years for unlawful escape.
In his heads of argument his lawyer, Linus Samaria, said: “For an accused to be convicted of escaping from lawful custody, the State must prove that the accused was in lawful custody.”
He added that the State was therefore required to present evidence of a lawful arrest in order to prove that the appellant was in lawful custody at the time of his escape.
“It is clear from the court proceedings record that such evidence was non-existent. The State did not lead evidence regarding the lawfulness of his arrest,” Samaria maintained.
According to him there was no evidence before the court as to when the appellant was arrested, on what grounds he was arrested, and when he escaped from the police cells.
“The State did not discharge the onus of proving the lawfulness of the appellant's detention. There is accordingly a lacuna (gap) in the State's case which is fatal to a conviction,” Samaria argued.
State advocate Clifford Lutibezi argued that there was no requirement under common law that the accused must be lawfully arrested or that the State must prove lawful arrest.
“What is required for the common-law offence of escape from lawful custody is for the State to prove the accused was in lawful custody and it has nothing to do with lawful arrest,” he argued.
He maintained that any unlawfulness of an accused's arrest had no effect on the lawfulness of his detention when such detention was ordered by a court.
“In essence a person can be in lawful custody after an unlawful arrest and if he escapes from such custody he commits an offence,” he advocate argued.
The case was postponed to 13 March for a ruling.
FRED GOEIEMAN
Ruben Awaseb, from Mariental, is appealing against his conviction and argues that the court relied on the evidence of police officers who could not testify about the circumstances causing him to be in custody prior to his escape on 21 October 2014.
On 23 February last year, Awaseb was convicted of escape from lawful custody and sentenced to two years' imprisonment. He had escaped after he found his cell door was left open.
He had been detained on two charges of housebreaking. Two warrants of detention were produced to show that he was in custody, but this did not satisfy the court regarding the lawfulness of his detention.
Awseb pleaded not guilty but did not provide a plea explanation.
At the close of the State's case he brought an application for discharge, which the court refused.
He closed his case without testifying but was subsequently convicted as charged and sentenced to two years for unlawful escape.
In his heads of argument his lawyer, Linus Samaria, said: “For an accused to be convicted of escaping from lawful custody, the State must prove that the accused was in lawful custody.”
He added that the State was therefore required to present evidence of a lawful arrest in order to prove that the appellant was in lawful custody at the time of his escape.
“It is clear from the court proceedings record that such evidence was non-existent. The State did not lead evidence regarding the lawfulness of his arrest,” Samaria maintained.
According to him there was no evidence before the court as to when the appellant was arrested, on what grounds he was arrested, and when he escaped from the police cells.
“The State did not discharge the onus of proving the lawfulness of the appellant's detention. There is accordingly a lacuna (gap) in the State's case which is fatal to a conviction,” Samaria argued.
State advocate Clifford Lutibezi argued that there was no requirement under common law that the accused must be lawfully arrested or that the State must prove lawful arrest.
“What is required for the common-law offence of escape from lawful custody is for the State to prove the accused was in lawful custody and it has nothing to do with lawful arrest,” he argued.
He maintained that any unlawfulness of an accused's arrest had no effect on the lawfulness of his detention when such detention was ordered by a court.
“In essence a person can be in lawful custody after an unlawful arrest and if he escapes from such custody he commits an offence,” he advocate argued.
The case was postponed to 13 March for a ruling.
FRED GOEIEMAN
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