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S v Hickman (Case No.: CR 11/08) [2008] NAHC 30 (13 March 2008)

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REPUBLIC OF NAMIBIA

CASE NO.: CR 11/08

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

versus

KICKA N. HICKMAN

(HIGH COURT REVIEW CASE NO.: 1906/07)

CORAM: VAN NIEKERK, J et MULLER, J

Delivered on: 2008-03-13

_______________________________________________________________________

REVIEW JUDGMENT:

VAN NIEKERK, J:

[1] The accused was convicted by the magistrate, Swakopmund on two counts of fraud and one count of contravening section 46 of the Births, Marriages and Deaths Registration Act, (Act 81 of 1963). On each of counts 1 and 2 the accused was sentenced to 24 months imprisonment of which 9 months imprisonment were conditionally suspended for 5 years. In respect of count 3 the accused was sentenced to 3 months imprisonment to be served concurrently with the sentences imposed on counts 1 and 2.

[2] The relevant particulars of count 1 are that on 23 August 2001 the accused unlawfully, falsely and with intent to defraud, gave out and pretended to one Guruseb of the Ministry of Home Affairs at Swakopmund that her parents were deceased and by this false pretence induced the said Guruseb to issue death certificates in respect of her parents, whereas she very well knew that her parents were not deceased and that she was not entitled to the death certificates.

[3] The particulars of count 2 are that the accused on 24 August 2001 unlawfully, falsely and with intent to defraud, gave out and pretended to the Old Mutual Group that her parents were deceased and that she was entitled to the proceeds of a death claim of N$20 000-00.

[4] Count 3 was committed on the same day as count 1. The charge sheet is slovenly drawn and contains several errors because it does not follow the wording of the statutory provision which reads as follows:

“46 Penalty for false statement made for insertion in information

Any person who wilfully makes or causes to be made, for the purpose of being inserted in any notice or information or in any births register, deaths register or marriage register, any false statement relating to any of the particulars required by this Act or by any regulation to be made known and registered, shall be guilty of an offence and liable on conviction to the penalties which by law may be imposed for the crime of perjury.”

In casu the particulars of this charge are that the accused made a false statement to the Ministry of Home Affairs, namely that her parents are deceased, so that this information may be recorded in the death register.

[5] On review I was concerned that there may have been a duplication of convictions with respect to the convictions on counts 1 and 3 and I asked the learned magistrate to provide reasons for the convictions on these counts (clearly count 2 is not relevant in this enquiry). She furnished a helpful reply, which I quote in full:

"The accused in this matter gave out and pretended to a Home Affairs official that her parents were deceased in order to obtain death certificates. The death certificates were a means to an end. The main aim was claiming the insurance money. Subsequent to the false statements that she made to the aforementioned Home Affairs official, an entry was made in the Death Register where the parents of the Accused were recorded as deceased.

At first glance it appears that this is a duplication of convictions. If the single intent test were to be used it is quite easy to regard all the material acts of the day in question as having been done with a single intent and as together constituting a single criminal transaction. But if the same evidence test were to be used the opposite result would be arrived at. On the first charge it had to be proved that the accused with the intent to defraud gave out and pretended that her parents passed away and that thereby she induced the official to issue her with a death certificate. On the third count it had to be proved that due to the false statement an entry was made in the death register. The two actions are therefore do (sic) not lead to the same result. I submit that each count could have been established by evidence which did not establish the others (sic). There was therefore, no improper duplication of convictions. (S v Seibeb And Another; S v Eixab 1997 NR 254(HC)

However, if the Honourable Justice is still of the opinion that the aforementioned convictions amounts (sic) to improper duplication of convictions I would like to further submit that there is no prejudice to the Accused. In S v Makazela 1965 (3) SA 675 (N) there was the following said (sic) Harcourt J at 675G-H:

"In some cases, even if there has been a technical splitting of charges, the mischief of this can be met by the expedient of treating all counts as one for the purpose of sentence, and prejudice to the accused may be thereby avoided."

I am obviously mindful of what was said in the following sentence of the same judgment where Harcourt J said:

"This is, however, frequently not the case where the number of previous convictions has a relevant bearing upon the future punishment to which an accused may become exposed, .........".

In the matter at hand I imposed a sentence that is to be served concurrently with counts 1 and 2 and submits (sic) that although this will appear as a previous conviction on the record of the accused that the chances are slim to none that she will again be convicted of a similar offence - with specific reference to count 3."

[6] The two tests applied by the magistrate, namely the "single intent" and the "same evidence" test, are the tests most commonly used, as can be seen from S v Seibeb and another;S v Eixab (1997 NR 254 HC 256F) and S v Gaseb (2001 (1) SACR 438 NSC 448f-i; 466e), which were recently followed in this Court in S v Adrian Slinger (Case No. CR 44/2007 - unreported judgment delivered on 7/03/07). The tests may be set out as follows:

“ Where a person commits two acts of which each, standing alone, would be criminal, but does so with a single intent, and both acts are necessary to carry out that intent, then he ought only to be indicted for, or convicted of, one offence because the two acts constitute one criminal transaction. See R v Sabuyi 1905 TS 170 at 171. This is the single intent test. If the evidence requisite to prove one criminal act necessarily involves proof of another criminal act, both acts are to be considered as one transaction for the purpose of a criminal transaction. But if the evidence necessary to prove one criminal act is complete without the other criminal act being brought into the matter, the two acts are separate criminal offences. See Lansdown and Campbell South African Criminal Law and Procedure vol V at 229, 230 and the cases cited. This is the same evidence test.” (See Seibeb’s case, supra, at 256F-H).

[7] I agree with the learned magistrate that the accused's overall aim was to unlawfully claim insurance money by pretending that her parents had died. In order to achieve this overall aim, she needed death certificates, which she obtained by falsely pretending to the Home Affairs official that her parents had died. Looking at the provisions of Act 81 of 1963, it is clear that a death certificate is only issued after information of a death is received and recorded in the death register. The death certificate is merely a certified extract from the death register. In order to obtain the death certificates, the accused therefore pretended that her parents were dead and communicated this pretence by making a false statement.

[8] I agree with the learned magistrate that the accused had a single intention throughout her actions in relation to the Ministry of Home Affairs and that, applying the “single intent” test, there is a duplication of convictions.

[9] The magistrate is of the view that the “same evidence” test does not yield the same result, because, in regard to count 1 the State would have to lead evidence that death certificates were issued as a result of her false pretence, whereas, in regard to count 3, the State would have to lead evidence that false information was entered into the death register. It seems to me that the difference in evidence that would have to be led, as perceived by the magistrate, is more apparent than real. Part of the difficulty the learned magistrate has is perhaps the result of the fact that the accused pleaded guilty and therefore no evidence was actually led. One may therefore be inclined to look only at the precise words used in the charge sheet, instead of thinking about the evidence that the State would actually have to lead if the plea was one of not guilty. In this regard I agree, with respect, with what was stated by HANNAH, J in the Seibeb case (at 256J) namely, “the tests are not difficult to state, but they are often not so easy to apply”. Bearing in mind that the death certificate is a certified extract from the death register, it is logical that the State would have to lead evidence in both counts that a false statement was made by the accused, as a result of which, entries containing false information were made in the death register. In respect of Count 3, this would be sufficient evidence. In respect of count 1, the additional evidence would be led that as a further result of accused’s false statement, death certificates containing false information were issued to her. Clearly the accused did not report the “deaths” just to report them. She reported them in order to obtain death certificates. While count 1 goes a little further than count 3, the evidence needed to prove count 3 is clearly included in the evidence needed to prove count 1. In my view, this analysis of the two counts leads one to the conclusion mentioned in the example given by Rumpff, JA (as he then was) in the leading case of S v Grobler 1966 (1) SA 507 (A) 513G namely, that “according to the proved facts ……two charges in the indictment embrace one and the same punishable fact” (my free translation). In casu, the facts needed to prove count 1 “embrace”, or include, the facts needed to prove count 3. In this sense, it seems to me, the same evidence test also leads to the conclusion that a duplication of convictions occurred.

[10] However, even if I am wrong in coming to the conclusion that I have on the same evidence test, it should be borne in mind that the two tests, although they are the most commonly used tests, are not the only tests that may be applied, nor are they rules of law. They are merely useful practical aids which can be employed to determine whether the accused committed one offence in substance or not. (See R v Kuzwayo 1960 (1) SA 340 (AA), followed in Seibeb’s case (at 256E) and approved in Gaseb’s case at 448f – g). As “one offence in substance” is an elastic concept, no tests which are valid in all cases can be laid down (Kuzwayo 343H). In applying the rule against improper duplication of convictions, the court is required to apply common sense and a sense of fair play (Kuzwayo 344B-C; Seibeb 256I). In doing so, it is my view that, for the reasons given above, the accused was twice convicted of substantially the same offence.

[11] I do not agree with the learned magistrate that the accused is not prejudiced by the improper duplication. Not only is there an additional conviction on her record, but a separate sentence of 3 months direct imprisonment was imposed. Although this sentence was ordered to run concurrently with the imprisonment imposed on counts 1 and 2, the sentence does convey a measure of severity which could be taken into the scale against the accused should she perhaps appear before a court again. Even if she may not stand trial on the same charge as contained in count 3, the gist of count 3 is that she lied and was therefore dishonest, which could influence a future court to impose a heavier sentence should she perhaps be sentenced again on any charge involving dishonesty.

[12] As count 1 in effect encompasses count 3, I would set aside count 3. The result is therefore:

1. The convictions and sentences in respect of counts 1 and 2 are confirmed.

2. The conviction and sentence on count 3 are set aside.

______________________________

VAN NIEKERK, J

I agree.

_______________________________

MULLER, J