Former cop’s appeal dismissed after his death
An appeal by a former police officer, who was convicted of graft, against his conviction and custodial sentence was unsuccessful in the Windhoek High Court less than a month after he died while out on bail.
Samuel Samwele Likando was convicted in the Windhoek Magistrate’s Court on a charge of contravening section 38(b) of the Anti-Corruption Act, 2003, and sentenced to four years imprisonment of which two years were suspended.
The offence he was convicted of involved an incident in which he unlawfully solicited and accepted a bribe of N$500 at a roadblock east of Windhoek. Dissatisfied with the outcome of his trial he lodged an appeal against both the conviction and sentence and was released on bail pending the outcome of his appeal. He however died of heart failure while awaiting the outcome of his appeal.
Likando based his appeal on the grounds that the trial court failed to exercise the necessary caution when evaluating the evidence of the complainant, a certain Mr Gallert, and erred in finding that Gallert had no reason to falsely implicate him. He further said the trial in its evaluation of the evidence failed to take into account that the incident was only reported one day after the incident and lastly, that the court failed to treat the evidence about the identification parade with circumspection.
With regard to the identification parade, Judge Christi Liebenberg with Judge Naomi Shivute in concurrence said that Likando was positively identified by Gallert as the officer who asked for a bribe at the roadblock. The judge said it is common cause that Likando was on duty on the relevant day and time and there was no way otherwise that Gallert could have known that Likando would be on duty at the relevant time and date. With regard to his other objections, the judge stated that the magistrate in his judgement remarked that he observed Gallert as being straightforward, honest and forthcoming in all material aspects of his evidence.
He said what is telling is that the trial court was cognizant of the self-incriminating statements Gallert made of having consumed alcohol earlier that day and of giving the appellant money.
This is testimony of the honesty of the complainant (Gallert) the judge remarked. With regard to the other grounds, Judge Liebenberg said they were without merit as the trial court explained in its judgement the reasons for its findings and the court of appeal cannot interfere unless the trial court erred in law or on facts.
“In the present circumstances the explanations seems to be reasonable and, in my view, it would not have been proper for the trial court to have drawn an adverse inference from the complainant’s conduct which should have impacted on his credibility,” the judge stated.
With regard to the sentence Likando argued the trial court failed to give sufficient weight to his personal circumstances, overemphasised the seriousness of the offence and failed to strike a balance between his interests and those of society.
He also stated the magistrate erred when he found that a custodial sentence would be the appropriate sentence instead of a fine and that the sentence imposed was shocking. Judge Liebenberg said after due consideration of all the circumstances relevant to sentence he was unable to fault the magistrate’s reasoning and the conclusion reached that a custodial sentence was called for.
“The court, in my view, was entitled to give more weight to the manner in which the appellant operated by virtually extracting money from the complainant in exchange for his freedom in circumstances where there was no legal basis to affect an arrest. He clearly exploited his victim’s ignorance of the law to instil fear in order to enrich himself. These actions are not only deplorable, it is shocking and requires sanctioning in the strongest possible terms. No citizen should feel left at the mercy of an officer of the law, whatever the circumstances,” Judge Liebenberg stressed and concluded that he found no reason to interfere with the sentence.
The bail money was refunded to the person who paid the bail