Man wins appeal against State
A man sentenced to 10 years in prison for an armed robbery in Oshakati has had his conviction overturned by the High Court.
30 September 2019 | Justice
During the appeal judgment this month, High Court Judge Herman January, with the agreement of Judge Johanna Salionga, concluded that the State had failed to prove beyond reasonable doubt that Marius Romanus (36) had been involved in the robbery and that the magistrate's conviction and sentence should be set aside.
Last year Oshakati Magistrate Leopard Hangola handed down a 15-year prison sentence, of which five years were suspended, after finding Romanus guilty of the robbery.
January said the evidence on which the verdict was based was insufficient, primarily because the State relied on witnesses identifying the accused in court, in a method described as 'dock identification'.
Romanus's legal team argued that the dock identification of Romanus during the trial was of “such poor quality that no reasonable court could have convicted on it”.
Dock identifications have been described as unreliable, notably when used without additional evidence, because of the “inherent unfairness of the procedure”.
Witnesses tend to identify the accused “not because he is the person they saw committing the offence, but because he is the person sitting in the dock believed to have committed the offence,” a legal journal states.
January said on 19 September that other than the dock identifications, no identification parade was held prior to the trial, and none of the police investigators were asked to testify to “at least shed light on what grounds the accused was arrested”.
Further, none of the stolen items taken more than 11 years ago, including more than N$26 000, cellphones, a necklace and pistol, was ever recovered, and no fingerprints were lifted from the scene that linked Romanus to the crime.
The robbery that led to Romanus's arrest, and later re-arrest and three-year stint in solitary confinement, took place in June 2007 at Rochas Hotel in Oshakati.
The others involved in the robbery remain at large and unidentified. The robbers had entered Rochas restaurant in Oshakati, tied up a number of people at gunpoint and fled with a number of goods and cash.
Romanus was granted bail in July 2008, but never returned to court. Upon his re-arrest in 2015, he was transferred to Oluno Correctional Facility in Ondangwa, and placed in solitary confinement for three years.
He had denied guilt from the start, arguing that he was not in Oshakati but in Windhoek during the robbery.
In the notice of appeal, his lawyer, Marcia Amupolo, stressed that the magistrate had erred in his guilty conviction that the State had not proven its case beyond a reasonable doubt.
She argued that his prison sentence was “shocking and no reasonable court would have imposed it based on the facts in this case”.
January agreed in his judgment that the use of dock identification was unsafe in the circumstances.
He noted that while the first witness did not point the finger at Romanus, the second witness claimed he recognised him as one of the assailants, but admitted that at the time he had only glimpsed Romanus for 10 seconds before his head was covered with a plastic bag.
Judge January said the incident occurred in 2007, and the trial started in January 2018.
“He testified about nine years and seven months after the incident. He further testified that he is 'only seeing him today'.”
The witness was not able to tell the court what significant or distinctive features the witness relied on to identify the accused, the judge added. The third witness the State brought testified that he used to see Romanus socially in bars and clubs following the robbery, and was aware of gossip that implicated the accused.
The judge noted that “dock identification must be approached with caution”, and further, that single witness evidence must be approached with even greater caution in the cases of identification.
“In my view, that danger becomes even more pronounced where the identification of the alleged perpetrator is by means of a dock identification which had not been preceded by a proper identification parade.”
In his conclusion, the judge said the “State failed to prove that the accused is the robber beyond reasonable doubt”.