Criminal Procedure and Evidence
Arrest and first appearance
The domain covers the Criminal Procedure Act 51 of 1977 as applied in Namibia, read with Articles 11 and 12 of the Constitution. An arrest must be lawful, the suspect must be informed promptly of the reason, and the person must be brought before a court within the constitutional 48-hour period (or the next court day). Detention beyond that without judicial authorisation is unlawful and may found a claim for damages or an application for release.
Bail
Bail is governed by sections 60 to 71 of the Act. The court weighs the interests of justice against the presumption of innocence: the risk of absconding, the risk of interfering with witnesses or evidence, the danger to the public, and the possibility of undermining the administration of justice. The court may impose conditions and attach money. In serious cases the onus may shift to the accused to show exceptional circumstances.
Trial and evidence
A plea explanation may be delivered; a guilty plea requires the court to satisfy itself that the accused admits the facts. Confessions are admissible only if freely and voluntarily made, and a confession to a peace officer other than a magistrate is inadmissible unless confirmed and reduced to writing before a magistrate (section 217). Admissions to a police officer may be admitted under section 220 but must satisfy the voluntariness test. Courts apply cautionary rules to identification and to single-witness evidence.
Worked example
A constable records an accused's confession in his notebook. The confession is not admissible merely because it was written down; the constable is not a magistrate, and no confirmation before a magistrate occurred. However, evidence discovered as a result of the confession - say, the weapon's location - may be admitted, because the exclusion applies to the statement, not to the physical evidence.
Traps
Treating a police admission as a confession; failing to challenge voluntariness in a trial-within-a-trial; and forgetting that discharge at the close of the State's case is available where no prima facie case exists.