NAMIBIA SUPERIOR COURTS



REPUBLIC OF NAMIBIAHIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISIONHELD AT OSHAKATI JUDGMENTCase no: CC 09/2015In the matter between:THE STATEvFRANCISCO GERSON JOAOACCUSEDNeutral citation: S v Joao (CC 09/2015) [2019] NAHCNLD 102 (23 September 2019)Coram: JANUARY, JHeard on:18, 19 – 26 February 2016, 30 - 31 March 2016, 01 April 2016, 05 - 07 April 2016, 18 - 22 April 2016, 04 - 06 July 2016, 03 August 2016, 03 August 2018, 30 July 2018, 27 -28 September 2018, 05 February 2019.Delivered on: 23 September 2019Flynote: Criminal law – Murder – Overwhelming circumstantial evidence – Confirming confession and admission which is admissible - Confession had to be confirmed in material respects by other evidence Criminal Procedure – Evidence – confessions and admissions – Admissibility - it was made freely and voluntarily by such person in his sound and sober senses and without having been unduly influenced thereto.Criminal Procedure – Section 119 procedure – Inadmissible – Entitled to legal aid lawyer only during trial - Warning statement – Inadmissible - Rights only explained after statement - Pointing out – Inadmissible –Right to apply for legal aid not explained.Summary: The accused was arrested on a charge of murder read with the provisions of the Combating of Domestic Violence Act. The Accused has a name ‘Shikongo’ in Namibia. The accused responded to this name on the day of his arrest. The accused repetitively interrupted the police officer who wanted to warn him of his rights and made admissions that he killed his wife and that he should be taken to the police station. The court ruled this admission admissible. The accused was charged two days after his arrest. At this occasion a police officer warned the accused in accordance with a pro-forma warning statement (Pol 17) to his right to silence. When the accused’s warning statement was taken, it was read back to him, he was only warned of his rights to a legal practitioner at his own cost, right to legal aid to apply for bail after the statement was taken. The warning statement was ruled inadmissible. The right to legal aid was not explained during a pointing out. It was ruled inadmissible. During the 119 proceedings the accused was informed of his right to legal representation during the trial and not informed of his right to legal representation during pre-trial proceedings. The 119 proceedings were ruled inadmissible.Circumstantial evidence was found to be overwhelming. It confirms the confession in material aspects___________________________________________________________________ORDER___________________________________________________________________ The accused is convicted for murder read with the provisions of the Combating of the Domestic Violence Act, Act 4 of 2003.______________________________________________________________________ JUDGMENT______________________________________________________________________JANUARY J;Introduction[1]The accused in this matter stands indicted for murder read with the provisions of the Combating of the Domestic Violence Act, Act 4 of 2003. In that upon or about the 20th day of December 2011, and at or near Uukwalumbe-Omakuku Village, in the district of Outapi, the accused did unlawfully and intentionally kill Mirjam Selma Amutenya, a female human being.[2]The summary of substantial facts in terms of section 144(3)(a) of the Criminal Procedure Act, Act 51 of 1977 (the CPA) reads as follows: ‘During the evening of the 20th of December 2011, Ms Mirjam Selma Amutenya, now deceased, was on her way from the Ondiitola Cucashops going home. Shortly upon her arrival at home she was attacked by the accused. The deceased started running away and screamed for help. Her neighbour rushed to rescued (sic) her. She fell on the ground and died on the spot. The accused fled the scene. She died on the spot as a result of the multiple stab wound (sic) on her back by the accused. The accused and the deceased were involved in a domestic relationship in the nature of girlfriend and boyfriend.’[3]The accused pleaded not guilty and gave a plea explanation in terms of section 115 of the CPA as follows; ‘1.In my plea explanation I wish to state that I am not guilty of committing the aforesaid offence offences (sic) as I did not commit the crime I am being accused of.In addition to my plea explanation I wish to have the following admissions as recorded as being admissions in respect of this case: That I was present at Uukwalombe-Omakuku Village, which is the district of Outapi. That the deceased person is Mirjam Selma Amutenya. That Mirjam Selma Amutenya was my girlfriend and the mother of my daughter at the time of her death. The admissibility and contents of the section 212(4) (sic) of Act 51 of 1977 (sic) compiled by J Namwandi.The admissibility and contents of the identification of body and statement and next of kin compiled by Martha Mwandunba (PM1112/2011)3I will have no objection if my admissions above are entered as admissions in terms of Section 220 of the Criminal Procedure Act, Act 51 of 1977Dated 30 march 2016Rtp____________________ Francisco Gerson Joao ‘The evidence[4]The following exhibits were handed up to court by agreement; (A) the post mortem examination Report by Dr Armando Perez Ricardo PM 1112/2011; (B) a photo plan by D/Cst J M M’lukeni; (C) an affidavit in terms of section 212(4) of the CPA by D/Sgt Josef H Shipuata; (D) the identification of the body by Martha Mandumbwa; (E) a transportation statement of the body of the deceased; (F) the death certificate of the deceased; (F) a next of kin statement by the biological mother of the deceased; (H) the indictment, summary of substantial facts and list of witnesses, the States pre-trial memorandum, list of copies of documents disclosed and the accused’s reply to the pre-trial memorandum; (J) the accused’s statement in terms of section 115 of the CPA; (K) a drawing of the homestead of the accused; exhibit 1; a reddish/orange flat point screwdriver.[5]The State is represented by Mr Gaweseb and the accused was initially represented by Ms Amupolo. He is now represented by Mr Bondai.[6]The first witness for the State was Peter Mwaala Maherero. He knows the accused as his neighbour. He called him his boy although they are not related as he used to call the accused to assist him with tasks. He knows the accused as Shikongo[7] On 20th December 2011 the witness left his house and went to a nearby cuca shop. He found the accused there with his daughter. The accused gave the child ‘tombo’, a traditional homebrewed liquor. The accused was smoking a lot which he did not usually do. People talked to the accused not to give ‘tombo’ to the child. A girl offered juice to the child. After that the accused disappeared. The witness believed that the accused went home with the child.[8]After a while the witness saw the deceased from her house with an umbrella because it was going to rain. The deceased was the girlfriend of the accused. The deceased requested the witness for a jar of home brewed liquor. She wanted to take money to a certain Elia who fixed a fence. The deceased thereafter left and later returned. After her arrival the witness stood up to go home. The deceased requested the witness for her to go together. They walked together to a small entrance of a fence. The witness passed the small entrance of the fence.[9]After passing the entrance he suddenly heard screaming for help. The witness ran back to the small entrance and saw the accused running and climbing the fence. The screaming came from the direction of a land field where the deceased climbed the fence. The accused was exiting or climbing out of the fence. The witness testified that visibility was ok as it was not that dark. The sun was about to set, not yet down and it was raining.[10] The witness beforehand told the accused not to beat or touch the deceased. The witness was sure it was the accused. He knows him well and was about 4 to 5 meters from the accused. The time of the screaming and the accused climbing the fence was almost simultaneous. The witness climbed the fence and ran towards the deceased. He could not see her as she was behind a bush. When the witness walked to the deceased she was struggling and was about to fall. The deceased said that she had been killed. The witness held her around the waist assisting her to walk. In the meantime the witness saw the deceased’s mother approaching. The deceased informed the mother that she had been killed by Shikongo and referred the mother to the deceased’s child. The child was however not present.[11]The deceased went down lying on her back. The witness contacted a person with a motor vehicle. When the motor vehicle was approaching the witness touched the deceased on the forehead. He noticed that the eyes were open and not blinking. He closed the eyes and announced that the deceased was dead. The police was called. The witness knows that the accused and deceased were in a relationship, had their own house and to him were traditionally married. At the time of the incident they were no longer in a relationship but were separated. The child is the child of the accused and deceased and was about three years old at the time. The witness also knows the accused by a baptised name of Gerson or Geson.[12]The witness saw the accused running to his house. The witness followed up the next day and also followed footprints to the accused’s house. The accused was not at his house. The witness identified the body of the deceased on photo 9 of the photo plan.[13]In cross-examination the witness was confronted with his witness statement to the police. In particular why he did not inform the police that the accused gave homebrew liquor to the child. The witness gave a plausible explanation that he just talked about the killing of the deceased. The witness confirmed that he never saw the accused and deceased together at the cuca shop on the day of the incident. He stated that he and the deceased parted at some point and the deceased followed a small path past bushes.[14] The next witness was the mother of the deceased. She knows the accused as a worker or employee at neighbouring houses. At some point in time the accused and the deceased met and talked about a love relationship. They started a relationship and lived together. Their houses were about 50 to 70 meters apart.[15]On 20th December 2011 there were boys fixing the fence gate of the witness’s house. At some point the boys came running to the homestead of the witness. The boys informed her that they heard a scream asking for help. They directed her into the direction of the scream. She followed them. She eventually ran pass the boys and heard a call stating: ‘mother I am gone’ and thereafter that she was stabbed by Shikongo. The deceased thereafter lifted her skirt and directed the witness to her back. The mother could however not see blood. The deceased thereafter passed away. The deceased was with the abovementioned first witness. The police arrived afterwards and asked questions. Thereafter the body was transported to Okahao.[16] The accused is also known as Francisco Joao in Angola but known as Shikongo in Namibia. The witness was present when the accused was baptised as Gerson. She pointed out the accused. The witness testified that the accused and deceased’s relationship was good in the beginning but he chased the deceased from the common house somewhere in November.[17] In December 2011 the deceased was staying with the witness. When the witness arrived at the scene the sun was about to set and it was raining. The deceased was in the witness’s land field. The witness on that day sent the deceased to take money to a person who fixed their fence. The witness recognized her house and the fence surrounding the land field on a photo in the photo plan. She once heard the deceased crying. After the incident the witness did not talk to the accused. He disappeared and abandoned his house. [18] In cross-examination the witness testified that on the day of the incident, the accused was at her house before she sent the deceased to pay the person who fixed their fence. It was about 14h00. She confirmed that when she saw the deceased on the ground, the deceased said: ‘I have been stabbed, I have been stabbed! Mother it’s all I am gone. The deceased referred to Shikongo, her boyfriend who stabbed her. She heard this when she was about 20 to 25 meters from the deceased. The deceased also referred to her child but the child was not present.[19]The witness was confronted with her statement to the police. She identified the statement. The police officer used the Oshiwambo language when he took the statement. They could understand each other. The statement was not read back to her. Nothing more material to the adjudication of the case emanated from cross-examination.[20] The next witness was Leevi Israel Nashapi. He knows the accused as he is from the same village as the witness. On 24 November 2011 the accused came to the house where the witness resided. The accused called a certain Ms Toini. When Ms Toini enquired who was calling, the accused responded: ‘Shikongo’. The accused enquired if the deceased was dead. The witness informed the accused that the deceased was going to be buried the following day. The accused wanted something to drink and wanted to give the witness money to buy liquor or something to drink. The witness refused. The witness went to the house of the mother of the deceased.[21]He informed the mother that the accused visited him. The witness knew about the deceased’s death. He went to the mother’s house on the day the deceased died. The police arrived at the house. The witness returned to his house with the police about one hour after the accused was at his house but did not find the accused.[22]Josua M M’Lukeni is the scene of crime officer. He compiled the photo plan, exhibit ‘B’. The photo plan depicts photos depicting: an entrance to a crop field where the victim had passed through; an area where the incident happened; the scene where the deceased came to fall down; the homestead of the mother; an area where an umbrella and shoes of the deceased were found; the body of the deceased covered with a sheet and uncovered; the body with stab wounds at the back; a jersey with holes on the back side; the body when the post-mortem was conducted;[23]Herman Mwahepekeni Ndakola is an examiner at NATIS. He was a police officer in the Namibian Police for 9 years. On 20 November 2011 he received a telephone call from Insp. Lungameni informing him about a murder at Uukwalume village, Outapi. The witness departed with Insp Lungameni, Cst. Iithete, Cst. Shikongo to the scene. On arrival they found a body covered in a bedsheet. The mother of the deceased and Peter Maherero were at the body. The mother identified the deceased as Mirjam Selma Amutenya.[24]The mother reported what the deceased told her. The deceased told the mother that ‘Shikongo stabbed her and killed her.’ The police officers went to the accused’s house. On arrival they entered and in the bedroom found a flat screwdriver with a red handle on a mattress. They also found a rope hanging from the roof. One end of the rope seemed to be burnt. They did not find the accused. The homestead of the accused is built with sticks. Some of the sticks were removed at the back of the homestead and it seemed that the accused exited there. Trials within the main trial[25]During the course of the trial, I ruled on the trials within the trial and indicated that the reasons will be incorporated in the final judgment on the merits. The reasons follow. [26]In the trials within the trial the defence disputed a warning statement, section 119 proceedings of the accused recorded by a magistrate, the lower court proceedings, admissions, a confession and a pointing out. It is alleged that the accused was assaulted, foretold what to say and whatever he said was not done voluntarily. In relation to the pointing out, it is alleged that the accused never did a pointing out but was merely taken to a place and whilst he was standing, photos were taken. He was not warned of his rights and neither were any rights explained to him. He was just given a form and instructed to put his thumb print on it.[27]Asino Mikka Iileka is the first witness called in the trial within the trial. He is a police officer and working in the charge office at Okahao. On 26th December 2011 whist on duty in the charge office, he received a call from Inspector Lungameni at about 15h00. The witness was also the driver and he was instructed to go to a location called Pink. The witness went with another police officer, Sgt. Haufiku to meet Insp. Lungameni. They found his car parked near an open shelter and Insp. Lungameni was approaching this witness and the other police officer with a person. Insp. Lungameni took out his police identification document and introduced himself to the person who is the accused. The Inspector also identified Asino and Haufiku to the accused.[28] The inspector and the accused mentioned the name of the accused as Fransisco Gerson Shikongo Joao. The accused then said he is Gerson and that he knew that the police was looking for him. When the inspector was busy warning the accused, the accused responded that he knows that the police was looking for him because he killed his wife and that he was prepared to embark the police van. His rights to remain silent, right to a legal representative from legal aid and to defend himself was explained to the accused. The accused indicated that he wanted to defend himself and just insisted to embark the police van. The accused said that he wanted to report himself the previous night but found the gates of the police station closed. The accused went into the police van voluntarily and he was not handcuffed. He was taken to the police station at Okahoa. This witness never witnessed any assault or torture on the accused.[29] In cross-examination the witness denied that he accompanied the accused into another office with Insp. Lungameni and other police officers where the accused was interrogated. He left the accused and the police officers in the charge office. The witness denied that he witnessed any assault on the accused. The witness was confronted with the fact that he did not state in his statement about the warning of the accused’s constitutional rights. He answered that he was not asked about it by the officer who took down his statement and as Insp. Lungameni was the one who warned the accused he (Lungameni) is the one to testify about it. [30]Martha Ndemutega Shapwa is a police officer from Okahao Police Station. On 26 December 2011 she was the charge office sergeant at the police station. She received a report from Insp. Lungameni that Sgt. Asino and Haufiku must attend an incident at Pink location. After a while Insp. Lungameni, Sgt. Asino and Sgt. Haufiku came with a male person. Insp Lungameni instructed her to keep the person awaiting for the investigating officer. [31]The witness testified that the investigating officer, Officer Ithete, arrived after a while at about 18h35. Sgt. Ithete took the suspect and went into his office with Shapwa. Sgt. Ithete introduced himself with his police identification document and also introduced the witness as Martha Shapwa. Sgt. Ithete informed the accused that he is charged with murder committed at Uukwalumbe Omakuku village in that he stabbed a person with an unknown object multiple times. Ithete further informed the accused that he has the right to silence, and if he decides to say something that it will be written down and used as evidence in a court of law. Ithete asked the accused if he was feeling well or not. The accused had a small wound on his forehead. The warning statement was read back to the accused and he started to cry. Ithete thereafter informed the accused about his right to get a legal practitioner at his own cost, his right to legal aid and the right to apply for bail. The accused opted to conduct his own defence and insisted to be taken to court. The accused put his thumb print on the document and returned to the charge office. The warning statement is inadmissible because it was taken down and rights of legal representation and legal aid was only explained thereafter.[32]The witness did not at all observe that the accused was assaulted and she was nowhere present when an assault was perpetrated on him. She further did not hear Insp. Lungameni instructing officers to assault the accused. He only dropped the accused and did not stay long with him in the charge office. The witness made use of the occurrence book and read out entries confirming her evidence on the date and time when the accused was brought to the police station, when and by whom he was charged and that he was detained free from injuries.[33]The lower court proceedings, except the content of the section 119 proceedings, were handed up in court by consent. This record reflects that the accused made his first appearance on 28 December 2011. On this date his rights to legal representation was appropriately explained and he elected to conduct his own defence. The matter was then periodically postponed for further investigation and eventually on 09th July 2012 the section 119 plea in terms of the Criminal Procedure Act, Act 51 of 1977 (the CPA) was taken. [34]Walter Mikiti is the magistrate from Okahoa magistrate’s office who recorded the plea. He testified that the accused appeared before him on 09th July 2012 on the charge of murder. He again properly explained the procedure in terms of section 119 of the CPA and the right to a legal representative to assist the accused with the plea and that he has the right to appoint a legal representative or legal aid representation during the trial. The accused again indicated that he wished to conduct his own defence. The explanation was interpreted in the Oshiwambo language by an official interpreter, Alina Kuutondokwa. The charge was put to the accused. He appeared normal as he appeared before this witness several times. The accused gave the plea freely and voluntarily. The witness identified the copy of the record of the lower court proceedings and read parts of it into the record. (my underlining)[35]The magistrate testified that the accused pleaded guilty but he recorded a plea of not guilty. This court did not allow and has not heard the answers on questions by the magistrate on the plea of guilty in terms of section 119 of the CPA. The prosecution also used a copy of a letter dated 22 March 2012 and received by the clerk of court, Outapi date stamped 14th May 2012, showing that the accused applied for legal aid. The magistrate testified that he was not aware of the application on the date when he recorded the section 119 plea. He further testified that the accused never mentioned that he applied for legal aid. The response was received at Outapi magistrate’s court whereas the section 119 plea was recorded in the Okahoa periodical court on 09th July 2012. The magistrate testified that the letter only arrived at Okahao periodical court after the 119 plea was already taken. The record reflects on 21st September 2012 that Ms Amupolo was appointed as legal aid counsel. Nowhere before that does the record reflect that the accused had applied for legal aid.[36]The magistrate conceded that, if not explained properly, a lay person may perceive that legal representation is only a right at the trial when so explained and not during the 119 pleading. I highlighted the difference above. Although, the magistrate testified that he explained the right to legal representation during plea, the record of the lower court’s proceedings reflects in a pro forma in sequence as follows:‘ANNEXUREPROCEEDINGS IN TERMS OF ACT 51/1977/119Accused, this is not your trial, but only a preliminary examination. You will be asked to plead on a charge/charges of:Your plea(s) will be recorded and then submitted to the Prosecutor-General with the police docket(s). The prosecutor-General will then decide if you should be arraigned for trial and, if so, before which court you will appear and what the charges against you will be.Q: Dou you understand?A: Yes.You have the right to obtain legal counsel of your choice to assist you with your plea or you may choose to conduct your plea by yourself.Q: Do you understand?A: Yes.Q: What do you choose to do?A: I will conduct my own defenceFor plea see record of proceedings.Guilty.Q: Which language do you prefer to speak if your case goes on trial?A: Oshiwambo.Q: Do you have any witnesses in respect of whom you need assistance to bring them to court for your trial?A: NOYou have the right to appoint legal counsel of your choice to represent you during your trial. If you can not (sic) afford to appoint your own legal counsel you may apply for legal aid from Government. But if you not want to be represented by legal counsel you may of course conduct your own defence.Q: Do you understand.A: Yes.Q: What do you choose to do?A: Own defence.If you want your application for legal aid to be considered, you must go to the clerk of the court immediately after these proceedings have been adjourned and fill out and fill out an application form. Q: Do you understand?A: Yes.’Only his right to legal representation was explained before his plea and not his right to apply for legal aid to assist him during the 119 plea proceedings. The section 119 proceedings in terms of the CPA therefore stands to be inadmissible. Courts in Namibia are courts of record.[37] Alina Kuutondokwa is the official interpreter at the the Outapi magistrate’s court. She interpreted on the date when the evidence of the section 119 plea was recorded. She confirms what the magistrate did. [38]Frederick Musakana is a magistrate who recorded a confession in terms of section 217 of the CPA at Outapi magistrate’s court. The witness read the preliminary part without the content thereof into record. The accused was brought by Warrant Officer Samuel Ambunda. The accused spoke in the Oshiwambo language and Jennesy Mumbangala was the official interpreter. The magistrate introduced himself as a magistrate and informed the accused that he should have no fear to speak. The accused gave his name as Gerson Fransisco. The accused was also informed that he may report if there was any irregularities and that protection could also be given to him. [39]The magistrate warned the accused of his right to legal representation that he has the right to appoint a lawyer of his own choice at his own expense; that he may apply for legal aid which will be paid by Government. The accused answered that he understood. The magistrate enquired from the accused if he wanted legal representation to which the accused stated that he did not want legal representation and will just talk by himself. The pro-forma form does not reflect that the right to legal aid was explained. The accused however confirmed in his testimony that the right to legal aid was explained. The magistrate informed the accused that he has no connection with the police and that he is not the person hearing the case. He warned the accused to his right to silence but if the accused opted to make a statement, the magistrate will reduce it to writing and it could later be used as evidence in a court of law. The accused opted to make a statement freely and voluntarily.[40]He informed the magistrate that he was assaulted when he was arrested and brought to the police station but nobody assaulted, persuaded or threatened him or persuaded him to make a statement. The magistrate continued to take down the statement because the accused indicated that he is freely and voluntarily giving it. The magistrate did inquire about the assaults. The accused stated he was assaulted by the police at his arrest and when brought to the police station. The accused did not know the names of the officers who assaulted him but he maintained those assaults did not influence him to make the statement. The magistrate observed an injury on the forehead, abrasions on the stomach and back. The accused alleged that those were caused by the assaults as stated above. The accused appeared in his sound and sober senses and confirmed. That he was sound and sober. Further it appeared that the accused was not unduly influenced to make the statement and was making it freely and voluntarily. The statement was then taken.[41] Jennesy Anna Ndahafa Mumbangala is the official interpreter who interpreted on 28th December 2011 when the confession was taken down by magistrate Musakana. The witness interpreted in the Oshiwambo language what the magistrate said in English and vice versa what the accused responded to the magistrate. She corroborated and confirmed the testimony of the magistrate. The confession stands to be admissible. [42]Aleksius Lungameni is a police officer with the rank of inspector in the Namibian police. He has 17 years’ experience as a police officer. He received a report on 26th December 2011 of the whereabouts of a suspect the police was searching for. He called sergeant Asino and sergeant Haufiku to go to the place where the suspect was and that he will meet them there. The name of the suspect was Shikongo Gerson Joao, the accused in this case. [43]When they arrived at the place, the accused was sleeping laying under a shade where various cuca shops are situated. He called the name ‘Shikongo’ and the accused responded. The accused stood up and the inspector, the witness, introduced himself and also officers Asino and Haufiku. The witness produced his police ID card and explained the accused’s rights to silence, his rights to legal representation at own cost and if he cannot afford to apply for legal aid. The accused kept on interrupting the witness for about three times stating that he should be taken to the police station because he killed his wife. This amounts in my considered view to an oral admission. The accused did not want legal representation. The accused insisted to be loaded onto the police van. The witness explained to the accused that he was a suspect in a case of murder, touched the accused and arrested him.[44]The witness handed the accused to the charge office with officer Shapwa on duty. He then went off after about 5 minutes. Officer Haufiku was not on duty and Asino also went off to do other duties. The witness never gave instructions to anyone to assault the accused. The accused was not assaulted in this witness’s presence. He was never informed of any assault on the accused and no case of assault was opened. The office of the Ombudsman also regularly visits the cells and accused could have reported any assault that could have occurred. An officer with the name Lumbo, Charly or Sacky was not present when the accused was handed to the officer in the charge office. [45] The witness does not know if Women and Child network members were also present at the time of the accused’s arrest. The accused was not handcuffed at his arrest. The accused looked tired, weak and exhausted. The officer did not observe any injuries and did not look for injuries. [46]Tileni Haufiku is a police officer with 15 years’ experience and was present when the accused was arrested. He corroborates and confirmed the evidence of Inspector Lungameni and Asino on what happened at the arrest of the accused, the explanation of the accused’s right to silence, his right to legal representation and to apply for legal aid. He confirmed that the accused was taken to the police station and that Inspector Lungameni, him and Asino left shortly after handing the accused to the charge office sergeant. This witness denied any knowledge of an assault on the accused or an instruction to assault him. The witness knows Lumbu. Lumbu was not present when the accused was left at the police station.[47]Otto Teacher Iithete is the investigating officer in the matter. He is a police officer with 17 years’ experience. He conducted an interview with the accused on 26 December 2011. He took down the warning statement of the accused. He identified this document in court. This witness identified himself to the accused with his appointment certificate, informed him of his right to silence, his right to legal representation both at his own cost or legal aid. The accused indicated that he knew his rights and opted not to have legal representation and provided a statement. The witness wrote down the statement. He read it back to the accused and the accused placed his thumb print on it certifying the correctness thereof. [48]This witness denies that he assaulted the accused, that he was assaulted or tortured in the witness’s presence or that any instruction to assault him was ever given. The witness observed a small wound on the accused’s forehead.[49]Timotheus Nghishe is the police officer who then was an Inspector. He attended the pointing out. He was contacted on 27th December 2011 when stationed at Ondangwa to conduct the pointing out. He was called by Inspector Johannes on 27th December 2011 from Outapi. Inspector Johannes requested the witness to conduct a pointing out. The witness agreed. The accused was brought to him by Cst. Thomas on 29th December 2011. The witness was alone in a conference room with the accused. He introduced himself to the accused and produced his appointment certificate. The accused was informed that he is is not compelled to point out anything or to say anything about the scene.[50]On 29th December 2011 the accused was brought to the witness in a conference room at Okahao police station. The witness warned the accused that what he may point out will be taken down in writing and that photo’s will be taken and may be used in evidence in a court of law in the subsequent trial. The accused indicated that he understood and is ready to do the pointing out. His right to legal representation during the pointing out was explained. The witness read his notes of the pointing out into the record with what the accused said relevant to the scene. The document confirms what the witness testified to.[51]The accused said that he was assaulted during arrest and the witness could observe slight scratch injuries on his forehead and stomach. The accused however said that that assault did not influence him to do the pointing out. The witness, accused, Sgt. Muzanhima as the driver and Sgt Irmally as the scene of crime officer departed for the pointing out. The accused did the pointing out and it was photographed. The accused thereafter indicated that he was satisfied and put his thumb print on the notes confirming that he was satisfied. This witness has no interest in the case.[52]The witness in cross-examination conceded that he did not explain the right of the accused to apply for legal aid. The pointing out is for this reason inadmissible.[53]John Lumbu is a police officer at the relevant time for 5 years in the police force. He is a Sgt and was stationed at Okahao police station in December 2011. He knows that the accused was arrested on a case of murder. He saw the accused in the cells. The witness denied that he received instructions to assault the accused and was present at the police station when the accused was arrested. He does not know who arrested the accused and did not witness any assault. He was never charged for assaulting the accused. He never talked to the accused. The State then closed its case in the trial within the trial.[54]Gerson Francisco Joao is the accused in the matter. He is 31 years old. He was not employed. He confirmed that he was arrested on 26th December 2011. He stated that two of the persons were from women network and one was a police officer who arrested him. He was handcuffed by Inspector Lungameni who is the police officer. He spoke telephonically to persons. The accused was allegedly called and he went there. The accused was arrested. Later he saw a police van coming with two police officers. The accused embarked the police van and was taken to the police station of Okahao. He confirmed that he was seated on a chair. [55]The accused in cross-examination stated that Inspector Lungameni was accompanied by two male persons from Women and Child Network. Neither did Inspector Lungameni testify about that and nor did the two police officers who were called by Inspector Lungameni. According to the accused he identified one of the persons as Iiyambo from Women and Child Network. GENERALLY[56]The constitutional rights relevant to this enquiry are contained in art 12 of the Namibian Constitution and in particular sub articles (1)(a) the right to a fair trial; (1)(d) the presumption of innocence; 1(e) the right to legal representation (1)(f) the right against self-incrimination and the right not to have evidence obtained in violation of art 8(2)(b). Article 8(2)(b) is excluded as it relates with the inviolable right not to be subjected to cruel, inhuman or degrading treatment or punishment.. The compliance or non-compliance with the Judges' Rules is also a factor to consider in determining the issue of voluntariness of an admission or the fairness of a trial. The entire process of bringing an accused person to trial and the trial itself needs to be tested against the standard of a fair trial. In S v Kapika and others (1) 1997 NR 285 (HC) the court held that an accused has a right to consult with a legal practitioner during the pre-trial procedure and to be informed of such a right. Mtambanengwe J interpreted the right to legal representation in the Namibian Constitution purposively, giving effect and meaning to the right to legal representation.[57] Statements containing admissions, pointing outs or confessions emanating from an accused are dealt with by sections 217, 218 and 219A of the Criminal procedure Act 51 of 1977 respectively. The question whether an admission or a pointing-out had been made or not, is a question of fact and it was a question of law whether such admission or pointing-out was admissible in evidence. ‘ Admissibility of confession by accused(1) Evidence of any confession made by any person in relation to the commission of any offence shall, if such confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, be admissible in evidence against such person at criminal proceedings relating to such offence: Provided-(a)that a confession made to a peace officer, other than a magistrate or justice, or, in the case of a peace officer referred to in section 334, a confession made to such peace officer which relates to an offence with reference to which such peace officer is authorized to exercise any power conferred upon him under that section, shall not be admissible in evidence unless confirmed and reduced to writing in the presence of a magistrate or justice; and(b)that where the confession is made to a magistrate and reduced to writing by him, or is confirmed and reduced to writing in the presence of a magistrate, the confession shall, upon the mere production thereof at the proceedings in question-(i)be admissible in evidence against such person if it appears from the document in which the confession is contained that the confession was made by a person whose name corresponds to that of such person and, in the case of a confession made to a magistrate or confirmed in the presence of a magistrate through an interpreter, if a certificate by the interpreter appears on such document to the effect that he interpreted truly and correctly and to the best of his ability with regard to the contents of the confession and any question put to such person by the magistrate; and[Subpara (i) substituted by sec 13 of Act 56 of 1979.](ii)be presumed, unless the contrary is proved, to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto, if it appears from the document in which the confession is contained that the confession was made freely and voluntarily by such person in his sound and sober senses and without having been unduly influenced thereto.(2) The prosecution may lead evidence in rebuttal of evidence adduced by an accused in rebuttal of the presumption under proviso (b) to subsection (1).(3) Any confession which is under subsection (1) inadmissible in evidence against the person who made it, shall become admissible against him-(a)if he adduces in the relevant proceedings any evidence, either directly or in cross-examining any witness, of any oral or written statement made by him either as part of or in connection with such confession; and(b)if such evidence is, in the opinion of the judge or the judicial officer presiding at such proceedings, favourable to such person.Section 219A reads as follows:219AAdmissibility of admission by accused(1) Evidence of any admission made extra judicially by any person in relation to the commission of an offence shall, if such admission does not constitute a confession of that offence and is proved to have been voluntarily made by that person, be admissible in evidence against him at criminal proceedings relating to that offence: Provided that where the admission is made to a magistrate and reduced to writing by him or is confirmed and reduced to writing in the presence of a magistrate, the admission shall, upon the mere production at the proceedings in question of the document in which the admission is contained-(a)be admissible in evidence against such person if it appears from such document that the admission was made by a person whose name corresponds to that of such a person and, in the case of an admission made to a magistrate or confirmed in the presence of a magistrate through an interpreter, if a certificate by the interpreter appears on such document to the effect that he interpreted truly and correctly and the best of his ability with regard to the contents of the admission and any question put to such person by the magistrate; and(b)be presumed, unless the contrary is proved, to have been voluntarily made by such person if it appears from the document in which the admission is contained that the admission was made voluntarily by such person.(2) The prosecution may lead evidence in rebuttal of evidence adduced by an accused in rebuttal of the presumption under subsection (1).[Sec 219A inserted by sec 14 of Act 56 of 1979.] ‘[58]My rulings were:The oral admission to Inspector Lungameni is found to be admissible;The warning statement is found to be inadmissible;The section 119 proceedings are found to be inadmissible;The confession is found to be admissible;The pointing outs are found to be inadmissible.The merits continuing[59]Frederick Musakana is the magistrate who took down the confession. He is a magistrate since 2006. On 28th December 2011 the accused was brought to him by the police from Okahao. The interpreter was Ms Janice A N Mumbangala. The accused made the following statement. (I divided it into paragraphs for ease of reading as it is only one continuous statement):‘This lady called Miriam Amutenya was my girlfriend and I impregnated her. She told me that since I did not have a family here in Namibia can we not make our own home. I asked her if she can manage to have a house because maybe she still wants to look around. She told me that she was done looking around.We then started making a house at Omakuku village. We make our house in 2008. Last month in November 2011 she started going out with a female friend. I was out that time working at Lucia’s project in brick-making. She would come home at 19h00. I then asked her why she was going out of the house and spending the whole day out and only coming at night.One day when I came from work I used to see their footprints. I then asked her why she was telling me that she was going to Julia while she actually was going to Iyambo. She answered me saying she was not going to Iyambo but to Julia. I then said you are going to Julia but every day you are being escorted by Iyambo.On day around 19h00 I wanted to go and lock up the goats so that I can go to the cucashops, I then found her and Iyambo kissing each other in the bushes. May be Iyambo saw me and let go of each other. Iyambo went back. I wanted to go to the cucashops but I turned back and went to the house of my girlfriend’s mother. I also found my girlfriend there. They greeted me and brought some drinks.After drinking we went home with the child. I asked my girlfriend that she actually does not go to Julia but Iyambo. She said she does not go to Iyambo. I told her that every day I ask you that she was having something with Iyambo and she was denying but today I found you being kissed by Iyambo. We started arguing and I beat her and she packed her things and that of the child and went to her mother’s house.She stayed there for a while and later I went there and told her that there was no person that does not make mistakes and let us first prepare each other and come home. She said she will see.One day we went to work at their house. The people from her house who are working in the South sent money. She then gave me my share. I went to look for my goats to lock them out and she went to the cucashops. On her way back I met her as I was as I was coming from the bushes looking for my goats and I do not know what came over me and we did not even argue and I just stabbed her on the back with a screwdriver. She ran away whilst screaming saying; mother I have been stabbed. I also ran away.I went to my room and took a rope trying hang myself. I also took a match to burn myself in the room but the room did not burn much and the rope broke. I walked along the road and went to the police station but I failed to open the door and I just went to sleep at a broken down car. The following day I woke up and went home to get my things so that I can report myself but when I got home my things were not there, I then went to Okahao on a Friday and I was arrested on a Monday.’[60]The accused at his arrest admitted that he is Shikongo, that he should be taken to the police station and that he killed his wife.[61]The post-mortem examination report reflects the chief post-mortem findings as:The body has five (5) penetrating stab woundsWound number 1 is a mortal penetrating stab wound 20 mm in length through the 6th left intercostal space and estimated 12 cm penetrating the thoracic cavity, left upper lobe of the lung, pericardium, cardiac septum and ends penetrating the right ventricleWound number 2 is a penetrating stab wound 10 mm in length penetrating to the thoracic cavity through the 7th intercostal space posterity, has end blunt and sharp, wounded the lower lobe of the left lung Wound number 3 cut the 8th right ribBilateral HaemothoraxPericardium, cardiac septum and right ventricle woundsWound number 4 is a penetrating wound to thoracic cavity through the 9th right intercostal space 3 mm in lengthWound number 5 is a penetrating wound to Douglas pouch 10 mm in lengthThe cause of death was multiple stab wounds.[62]The State then closed its case. The accused opted to remain silent and not testify. He also did not call any witnesses in his defence.Evaluation[63]The accused admitted the identity of the deceased; admitted that the deceased was his girlfriend with whom he had a child; that he was at ‘Uukwalombe-Omakuku Village, which is the district of Outapi; The admissibility and contents of the identification of body and statement and next of kin compiled by Martha Mwandunba (PM1112/2011)’.[64]He stated that he is not guilty of committing the aforesaid offence as he did not commit the crime being accused of.[65]There is no direct evidence implicating the accused to have stabbed the deceased. There is however overwhelming circumstantial evidence implicating the accused. A scream was heard from the direction where the deceased went. Almost simultaneously the accused was observed coming from that direction. Shortly thereafter the deceased was discovered still alive. She could talk. She expected to meet her death and informed witnesses that the accused stabbed her. I find what she said to be dying declarations, an exception to the hearsay rule and admissible.[66]The accused made an admissible admission when he was arrested, admitting that he is Shikongo; that he knew why the police is looking for him; that he wanted to embark the police van and that he killed his wife.[67] In addition the accused made an admissible confession. The circumstantial evidence corroborates the content of the confession. An accused cannot be convicted on the strength of his confession alone. ‘Section 209 of the Criminal Procedure Act specifically states that an accused can only be convicted on the basis of his confession 'if such confession is confirmed in a material respect or if the offence is proved by evidence, other than such confession, to have been actually committed'. The onus to prove the accused's guilt beyond a reasonable doubt thus remains the burden of the prosecution and the requisites stated in s 209 ensure that there is a rational connection between the confession and the crime perpetrated. Furthermore, there is a rational connection (on a narrower basis) between the prima facie evidence appearing ex facie the written confession and the actual voluntariness thereof.’[68]In my view the State proved its case beyond reasonable doubt.[69]Considering the cumulative conduct of the accused, the nature of the weapon used, the position where the wounds were inflicted, the number of times injuries were inflicted, the conduct of the accused before and after the incidents, I conclude that he had direct intent to kill the deceased. Strong force had to be used at least inflicting wound number 3 where the 8th rib was cut.[70]In the result:The accused is convicted for murder read with the provisions of the Combating of the Domestic Violence Act, Act 4 of 2003.________________________ H C JANUARY JUDGEAPPERANCES:For the State:Mr T GawesebOffice of the Prosecutor General, OshakatiFor the Accused: Mr G BondaiDirectorate of Legal Aid, Ondangwa ................
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