An accused burglar identified only as Victory Hoaeb who got convicted in a Windhoek court on one count of housebreaking with intent to steal and theft, and thereafter sentenced to 12 months’ imprisonment, blamed his crime on alcohol.
“On review a query was sent to the presiding magistrate enquiring whether the conviction was proper as the accused appeared to have raised the defense of criminal incapacity due to intoxication,” said Judge Christie Liebenberg.
The presiding magistrate responded to the query and explained that she questioned the accused to ascertain the degree of his intoxication when committing the offence.
The magistrate explained that after questioning the accused on his ability to recall his commission of the offence in some detail, the court was convinced that the defence of drunkenness was not justified and therefore disregarded his defence of intoxication.
In response to questions posted to him, Hoabeb said, “The house was locked but the keys (were) in the lock so I opened the lock and went into the house, but it was really not my intention to go into the house because I was not in my right mind, I was drunk.”
However, Judge Liebenberg set aside Hoabeb’s conviction and sentence after it was found that he lacked the required criminal capacity due to intoxication.
Another point raised by the court was that Hoabeb stated that he did not have the intention to go into the complainant’s house due to the fact that he was not in his right mind.
“This notwithstanding the court continued questioning the accused and from the answers provided by the accused evaluated the truthfulness thereof and came to the conclusion that the defence of drunkenness was unjustified. This the court was not entitled to do and committed a misdirection. The conviction cannot be permitted to stand.,” said Judge Liebenberg.
Hoabeb’s case has been remitted to the trial court in terms of section 312 of Act 51 of 1977 with the direction to act in terms of section 113(1) and to bring proceedings to its natural conclusion.
Judge Liebenberg said in the event of a conviction the sentence already served by the accused must be taken into account.