CHAPTER 5
QUESTIONING OF CERTAIN PERSONS IN CONNECTION WITH CRIME, ASCERTAINMENT OF BODILY FEATURES OF ACCUSED AND VICTIM IMPACT STATEMENT

Power and duty of police to question certain persons in connection with crime, and warning explanations to be given in respect thereof

37. (1) Without derogating from Article 12(1)(f) of the Namibian Constitution, a member of the police investigating an offence or alleged offence has the power and the duty to question -

(a) subject to section 26, any person who is likely to give material or relevant information as to any such offence, whether or not it is known by whom the offence was committed or allegedly committed ;
(b) subject to subsections (2) and (3), any person, whether or not arrested or detained in custody or charged, who is reasonably suspected of having committed or having attempted to commit the offence or alleged offence under investigation.

(2) A member of the police conducting an investigation under subsection (1) must, before questioning a person reasonably suspected of having committed an offence, give a warning explanation substantially in the following form to that person :

(a) That the member of the police is investigating an offence or alleged offence, and the nature thereof ;
(b) that the purpose of the investigation is to attempt to establish the truth and to establish whether an offence has in fact been committed and, if so, by whom and under what circumstances ;
(c) that the member of the police would welcome any assistance that that person can give to establish the truth and to bring the investigation to a speedy conclusion ;
(d) that the person to be questioned is a suspect in respect of the offence under investigation and, where applicable, that the member of the police is in possession of evidence under oath indicating that that person has committed the offence ;
(e) that the person to be questioned not only has the right to remain silent but also has the right to answer questions put to him or her or to give an explanation of his or her conduct or of his or her defence, if any ;
(f) that the person to be questioned has the right to consult a legal practitioner of his or her own choice before deciding whether or not to remain silent or to answer questions or give an explanation of his or her conduct or defence and that the legal practitioner is entitled to be present during the questioning ;
(g) that the warning explanation and any statement made in response thereto will be recorded in writing or mechanically and a certified copy of such recording be made available to that person in the circumstances contemplated in section 359 ; and
(h) that the warning explanation and any statement made in response thereto may be used in evidence in any criminal proceedings instituted against that person in respect of the offence in question, whether it be against or in favour of that person.

(3) The provisions of subsection (2) apply, to the extent that they can with the necessary changes be applied, to a person charged with an offence, but before questioning the person so charged the member of the police conducting the investigation must warn that person that he or she is charged with the offence in respect of which he or she is to be questioned.

(4) A warning explanation given under subsection (2) or (3) and any statement made in response thereto must -

(a) be in writing or be reduced to writing ; or

(b) where, by reason of the urgency of the matter or any other just cause, paragraph (a) cannot at the relevant time be complied with, be recorded in writing by the member of the police as soon as practicable after the questioning of the person suspected or accused of having committed the offence under investigation, and such member must then -
(i) give the person concerned an opportunity to comment thereon ; and
(ii) record in writing any comments made under subparagraph (i) ; or

(c) where mechanical means are available, be mechanically recorded and as soon as practicable thereafter be transcribed.

Powers in respect of prints and bodily appearance of accused

38. (1) Subject to subsection (2), a member of the police may -

(a) take the fingerprints, palm-prints or footprints or cause any such prints to be taken -
(i) of any person arrested on any charge ;
(ii) of any such person released on bail under Chapter 11 or on warning under section 78 ;
(iii) of any person arrested in respect of any matter referred to in paragraph (m), (n) or (o) of section 42(1) ;
(iv) of any person on whom a summons has been served in respect of any offence referred to in Schedule 1 or any offence with reference to which the suspension, cancellation or endorsement of any licence or permit or the disqualification in respect of any licence or permit is permissible or prescribed; or
(v) of any person convicted by a court ;

(b) make a person referred to in paragraph (a)(i) or (ii) available or cause such person to be made available for identification in such condition, position or apparel as the member of the police may determine ;

(c) take such steps or cause such steps to be taken (including the taking of a blood or other bodily fluid sample, or a hair, skin, handwriting or voice sample, or nail clippings or scrapings) as the member of the police may consider necessary to ascertain whether the body of a person referred to in paragraph (a)(i) or (ii) has any mark, characteristic or distinguishing feature or shows any condition or appearance, but no member of the police may personally -
(i) take any blood or other bodily fluid sample of such person ; or
(ii) make any examination of the body of such person where that person is not of the same sex as the member of the police intending to make such examination ;

(d) take a photograph or cause a photograph to be taken of a person referred to in paragraph (a)(i) or (ii).

(2) The fingerprints and palm-prints of a person arrested on a charge of having committed any offence referred to in Schedule 1 must be taken or caused to be taken by the member of the police charged with the investigation as soon as practicable after the arrest or detention of that person and the fingerprints and palm-prints so taken must be processed without delay to ascertain whether that person has any previous convictions or is sought elsewhere for any other offence.

(3) (a) A medical officer of any prison or a district surgeon must, and any other registered medical practitioner or registered nurse may, if requested thereto by a member of the police acting in the execution of his or her duties, take such steps (including the taking of a blood or other bodily fluid sample, or a hair or skin sample, or nail clippings or scrapings) as may be considered necessary to ascertain whether the body of a person referred to in paragraph (a)(i) or (ii) of subsection (1) has any mark, characteristic or distinguishing feature or shows any condition or appearance, and may in taking any such steps be assisted where necessary by a member of the police of the same sex as that person.

(b) If a registered medical practitioner or registered nurse attached to any hospital is on reasonable grounds of the opinion that the contents of the blood of any person admitted to the hospital for medical attention or treatment may be relevant at any later criminal proceedings, the medical practitioner or registered nurse may take a blood sample of that person or cause such sample to be taken.

(c) Nothing in paragraph (a) contained is to be construed as preventing a medical officer of any prison or a district surgeon from taking any steps contemplated in that paragraph without having been requested thereto by a member of the police.

(4) A court before which criminal proceedings are pending may -

(a) in any case in which a member of the police is not empowered under subsection (1) to take fingerprints, palm-prints or footprints or to take steps to ascertain whether the body of a person has any mark, characteristic or distinguishing feature or shows any condition or appearance, order that any such prints be taken of an accused at such proceedings or that the steps (including the taking of a blood or other bodily fluid sample, or a hair, skin, handwriting or voice sample, or nail clippings or scrapings) be taken which the court may consider necessary to ascertain whether the body of an accused at such proceedings has any mark, characteristic or distinguishing feature or shows any condition or appearance ;
(b) order that the steps, including the taking of a blood or other bodily fluid sample, be taken which the court may consider necessary to ascertain the state of health of an accused at such proceedings.

(5) A court that has convicted a person of any offence or that has concluded a preparatory examination against a person on any charge, or a district magistrate, may order that the fingerprints, palm-prints or footprints or a photograph of that person be taken.

(6) Fingerprints, palm-prints or footprints, photographs and the record of steps taken under this section must be destroyed if the person concerned is found not guilty at his or her trial or if his or her conviction is set aside by a superior court or if he or she is discharged at a preparatory examination or if no criminal proceedings with reference to which any such prints or photographs were taken or such record was made are instituted against the person concerned in any court or if the prosecution declines to prosecute that person.

(7) A person who, without sufficient cause, refuses or fails to comply with -

(a) a request made under subsection (1) by a member of the police to submit to -
(i) the taking of fingerprints, palm-prints or footprints or a photograph ;
(ii) an identification parade ; or
(iii) any other steps to be lawfully taken under paragraph (c) of that subsection ;

(b) a request made under subsection (3)(a) by any person referred to therein to submit to any steps to be lawfully taken under that subsection ; or

(c) an order made under subsection (4)(a) or (b) or (5),
commits an offence and is liable on conviction to a fine not exceeding N$20 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

Victim impact statement

39. (1) The member of the police charged with an investigation, or any other member of the police charged with such duty, must obtain a victim impact statement in respect of every victim of an offence against the person or against property and file the statement so obtained with the prosecuting authority in such manner and within such period, but not later than the date of commencement of the trial of the accused, as the Prosecutor-General may determine.

(2) If for whatever reason a victim is incapable of preparing a victim impact statement -

(a) the victim’s legal practitioner or the spouse or any dependant or other relative of the victim or, where the victim is a minor, his or her parent or guardian, may prepare the victim impact statement on behalf of the victim ; and

(b) where no person referred to in paragraph (a) is available to prepare the victim impact statement, any member of the police referred to in subsection (1) must, with the assistance of -
(i) the victim ; and
(ii) where necessary, the Prosecutor-General or any public prosecutor designated by the Prosecutor-General for that purpose or the public prosecutor conducting the prosecution of the accused concerned or any other prosecutor attached to the same court,
prepare the victim impact statement on behalf of the victim.

(3) A victim impact statement must -

(a) be prepared in writing substantially in the form prescribed by Schedule 8 ;
(b) contain full particulars of any injury, damage or loss suffered by the victim concerned, including the amount of compensation to be applied for in respect thereof ; and
(c) be sworn to or affirmed before a commissioner of oaths that the contents thereof are true.

(4) (a) A victim impact statement is, subject to paragraph (b), on its mere production at criminal proceedings admissible in evidence to the same extent as oral evidence to the same effect by the victim concerned, but only for the purposes of -
(i) informing the court, without derogating from section 305, as to the proper sentence to be passed ;
(ii) applying for the award of compensation to a victim in terms of section 326.

(b) A victim impact statement -
(i) complying with the requirements of subsection (3) ; and
(ii) of which a copy, together with a notification that such statement will be tendered in evidence at the trial of the accused but that the accused may dispute the correctness of any fact contained therein before it being so tendered, was handed or delivered to the accused or his or her legal practitioner a reasonable time before the statement is to be tendered in evidence,
may, on the mere production thereof at criminal proceedings, be admitted in evidence to the extent that the facts contained therein are not disputed by the accused, and the court may then consider any fact or facts not so placed in issue to have been sufficiently proved at such proceedings.

(c) If a victim impact statement is admitted in evidence only to the extent that the facts contained therein are not disputed by the accused, oral evidence may be adduced to prove the fact or facts placed in issue.

(d) Notwithstanding that a victim impact statement may be admitted or partly admitted in evidence under this subsection, the court may of its own motion, and must on the application of any party to the criminal proceedings in question, cause the victim concerned or other person by whom such statement was prepared to be subpoenaed to give oral evidence before the court regarding any fact, whether or not disputed, contained in the statement.

CHAPTER 7
ARREST

Manner and effect of arrest

41. (1) An arrest is effected with or without a warrant and, unless the person to be arrested submits to custody, by actually touching that person’s body or, if the circumstances so require, by forcibly confining that person’s body.

(2) The person effecting an arrest must, at the time of effecting the arrest or immediately thereafter, inform the arrested person of the cause of the arrest or, in the case of an arrest effected by virtue of a warrant, on demand of the person arrested, hand that person a copy of the warrant.

(3) The effect of an arrest is that the person arrested is in lawful custody and that that person is detained in custody until he or she is lawfully discharged or released from custody.

(4) To the extent that this Chapter authorizes the deprivation of the personal liberty of a person by making an arrest thereunder, such deprivation is authorized only on the grounds of the procedures established under this Chapter pursuant to Article 7 of the Namibian Constitution.

CHAPTER 7
ARREST

Warrant of arrest may be issued by district magistrate or justice of the peace

45. (1) A district magistrate or justice of the peace may issue a warrant for the arrest of a person on the written application of a member of the police of the rank of commissioned officer -

(a) which sets out the offence alleged to have been committed ;
(b) which alleges that the offence in question was committed within the area of jurisdiction of the district magistrate or, in the case of a justice of the peace, within the area of jurisdiction of the district magistrate within whose district or area application is made to the justice of the peace for the warrant of arrest, or where the offence was not committed within that area of jurisdiction, which alleges that the person in respect of whom the application is made, is known or is on reasonable grounds suspected to be within that area of jurisdiction ; and
(c) which states that from information taken on oath there is a reasonable suspicion that the person in respect of whom the warrant of arrest is applied for has committed the alleged offence.

(2) A warrant of arrest issued under this section must direct that the person described in the warrant be arrested by a peace officer in respect of the offence mentioned in the warrant and that that person be brought before a magistrate’s court in accordance with section 52.

(3) A warrant of arrest may be issued on any day and remains in force until it is cancelled by the person who issued it or, if that person is not available, by any person with like authority, or until it is executed.

Execution of warrants

46. A warrant of arrest issued under this Act may be executed by a peace officer, and the peace officer executing the warrant must do so in accordance with the terms thereof.

CHAPTER 29
WITNESSES

Witness from prison

205. A prisoner who is in a prison may be subpoenaed as a witness only if the court before which the prisoner is to appear as a witness authorizes that the prisoner be subpoenaed as a witness, and the court may give such authority only if it is satisfied that the evidence in question is reasonably necessary and material and that the public safety or order will not be endangered by the calling of the witness.

CHAPTER 29
WITNESSES

Protection of witness

208. (1) (a) When a person is in the opinion of the Prosecutor-General likely to give evidence on behalf of the State at criminal proceedings in any court, and the Prosecutor-General, from information placed before him or her by any person -

(i) is of the opinion that the personal safety of the person who is likely to give such evidence is in danger or that he or she may be prevented from giving evidence or that he or she may be intimidated ; or
(ii) considers it to be in the interests of the person who is likely to give such evidence or of the administration of justice that that person be placed under protection,
the Prosecutor-General may by way of affidavit place such information before a judge in chambers and apply to that judge for an order that the person who is likely to give such evidence be placed under protection pending the proceedings in question.

(b) The Prosecutor-General may, in any case in which he or she is of the opinion that the object of obtaining an order under paragraph (a) may be defeated if the person concerned is not placed under protection without delay, direct that that person be placed under protection immediately, but such a direction does not endure for longer than 72 hours unless the Prosecutor-General within that time by way of affidavit places before a judge in chambers the information on which he or she ordered the placement under protection of the person concerned and such further information as might become available to the Prosecutor-General, and applies to that judge for an order that that person be placed under protection pending the proceedings in question.

(c) The Prosecutor-General must, as soon as he or she applies to a judge under paragraph (b) for an order for the placement under protection of the person concerned, in writing inform the person in charge of the place where the person concerned is being protected, that he or she has so applied for an order, and must, where the judge under subsection (2)(a) refuses to issue an order for the placement under protection of the person concerned, immediately inform the person so in charge of the refusal, whereupon the person so in charge must without delay discontinue the protection of the person concerned.

(2) (a) The judge hearing an application under subsection (1) may, if it appears to the judge from the information placed before him or her by the Prosecutor-General -

(i) that there is a danger that the personal safety of the person concerned may be threatened or that he or she may be prevented from giving evidence or that he or she may be intimidated; or
(ii) that it would be in the interests of the person concerned or of the administration of justice that that person be placed under protection,
issue an order for the placement under protection of that person.

(b) Where a judge refuses an application under paragraph (a) and further information becomes available to the Prosecutor-General concerning the person in respect of whom the application was refused, the Prosecutor-General may again apply under subsection (1)(a) for the placement under protection of that person.

(3) A person in respect of whom an order is issued under subsection (2)(a), must be taken to the place mentioned in the order and, in accordance with regulations which the Minister is hereby authorized to make, be protected there or at any other place determined by a judge from time to time, or, where the person concerned is placed under protection in terms of a direction by the Prosecutor-General under subsection (1)(b), that person must, pending the decision of the judge under subsection (2)(a), be taken to a place determined by the Prosecutor-General and protected there in accordance with those regulations.

(4) A person placed under protection in terms of an order under subsection (2)(a) must be protected for the period terminating on the day on which the criminal proceedings in question are concluded, unless -

(a) the Prosecutor-General directs that the protection of that person be discontinued earlier ; or
(b) such proceedings have not commenced within six months of the date of the placement under protection of that person, in which event the protection of that person must be discontinued after the expiration of that period.

(5) No person, other than a person employed in the Public Service acting in the performance of his or her official duties and the legal practitioner of a person placed under protection in terms of an order under subsection (2)(a), has access to the person so placed under protection, except with the consent of and subject to the conditions determined by the Prosecutor-General or a person employed in the Public Service delegated by the Prosecutor-General.

(6) For the purposes of section 214, a person placed under protection in terms of an order under subsection (2)(a) is deemed to have attended the criminal proceedings in question as a witness for the State during the whole of the period of his or her placement under protection.

(7) No information relating to the proceedings under subsection (1) or (2) may be published or be made public in any manner whatever.

(8) To the extent that this section authorizes the deprivation of the personal liberty of a person who is likely to give evidence at criminal proceedings, such deprivation is authorized only on the grounds of the procedures established under this section pursuant to Article 7 of the Namibian Constitution.

CHAPTER 38
GENERAL PROVISIONS

Removal of accused from one prison to another for purposes of attending criminal proceedings

365. When an accused is in custody and it becomes necessary that the accused be removed from one prison to another prison for the purpose of attending his or her trial, the magistrate of the district in which the accused is in custody must issue a warrant for the removal of the accused to such other prison.