CHAPTER 36
REVIEWS AND APPEALS IN CASES OF CRIMINAL PROCEEDINGS IN MAGISTRATES’ COURTS
Appeal from magistrate’s court by person convicted
335. (1) A person convicted of an offence by a magistrate’s court (including a person discharged after conviction) may appeal against that conviction and against any resultant sentence or order to the High Court.
(2) An appeal under this section must be noted and be prosecuted within the period and in the manner prescribed by the rules of court, but the High Court in any case may extend that period.
(3) The High Court hearing an appeal under this section has the powers referred to in section 330(2), and, unless the appeal is based solely on a question of law, the High Court has, in addition to those powers, the power to increase any sentence imposed on the appellant or to impose any other form of sentence instead of or in addition to such sentence, but, notwithstanding that the High Court is of the opinion that a point raised might be decided in favour of the appellant, no conviction or sentence may be reversed or altered by reason of an irregularity or defect in the record or proceedings unless it appears to the High Court that a failure of justice has in fact resulted from that irregularity or defect.
(4) When an appeal under this section is noted, sections 333 and 334 apply with the necessary changes in respect of the sentence appealed against.
(5) When the High Court gives a decision on appeal against a decision of the magistrate’s court and the former decision is appealed against, the High Court has the powers in respect of the granting of bail that a magistrate’s court has in terms of section 333.
CHAPTER 37
APPEALS IN CASES OF CRIMINAL PROCEEDINGS IN HIGH COURT
Applications for condonation, for leave to appeal and for leave to lead further evidence
343. (1) An accused convicted of an offence before the High Court may, within 14 days of the passing of any sentence as a result of such conviction or within such extended period as may on application (in this section referred to as an application for condonation) on good cause be allowed, apply to the judge who presided at the trial or, if that judge is not available, to any other judge of the High Court for leave to appeal against his or her conviction or against any sentence or order following thereon (in this section referred to as an application for leave to appeal), and an accused convicted of an offence before the High Court on a plea of guilty may, within the same period, apply for leave to appeal against any sentence or any order following thereon.
Appeals by protected prisoners of war and internees
6. Where a protected prisoner of war or a protected internee has been sentenced
to imprisonment for a term of two years or more, the time allowed within which such prisoner or internee may give notice of appeal or notice of his or her application for leave to appeal to the High Court or the Supreme Court of Namibia, as the case may be, must, notwithstanding anything to the contrary in any other law contained, be not less than the period extending from the date of his or her conviction or, in the case of an appeal against sentence, of his or her sentence to the expiration of 10 days after the date on which he or she receives a notice in writing given by the officer or other person in charge of the prison or place in which he or she is confined or interned that the protecting power has been notified of his or her conviction and sentence.
1. A decision under article 74 may be appealed in accordance with the Rules of Procedure and Evidence as follows:
(a) The Prosecutor may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact, or
(iii) Error of law;
(b) The convicted person, or the Prosecutor on that person's behalf, may make an appeal on any of the following grounds:
(i) Procedural error,
(ii) Error of fact,
(iii) Error of law, or
(iv) Any other ground that affects the fairness or reliability of the proceedings or decision.
2.
(a) A sentence may be appealed, in accordance with the Rules of Procedure and Evidence, by the Prosecutor or the convicted person on the ground of disproportion between the crime and the sentence;
(b) If on an appeal against sentence the Court considers that there are grounds on which the conviction might be set aside, wholly or in part, it may invite the Prosecutor and the convicted person to submit grounds under article 81, paragraph 1 (a) or (b), and may render a decision on conviction in accordance with article 83;
(c) The same procedure applies when the Court, on an appeal against conviction only, considers that there are grounds to reduce the sentence under paragraph 2 (a).
3.
(a) Unless the Trial Chamber orders otherwise, a convicted person shall remain in custody pending an appeal;
(b) When a convicted person's time in custody exceeds the sentence of imprisonment imposed, that person shall be released, except that if the Prosecutor is also appealing, the release may be subject to the conditions under subparagraph (c) below;
(c) In case of an acquittal, the accused shall be released immediately, subject to the following:
(i) Under exceptional circumstances, and having regard, inter alia, to the concrete risk of flight, the seriousness of the offence charged and the probability of success on appeal, the Trial Chamber, at the request of the Prosecutor, may maintain the detention of the person pending appeal;
(ii) A decision by the Trial Chamber under subparagraph (c) (i) may be appealed in accordance with the Rules of Procedure and Evidence.
4. Subject to the provisions of paragraph 3 (a) and (b), execution of the decision or sentence shall be suspended during the period allowed for appeal and for the duration of the appeal proceedings.