Townsend v S (CC 19-2013) [2020] NAHCMD 457 (6 October …



REPUBLIC OF NAMIBIA

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HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

BAIL RULING

Case No. CC 19/2013

In the matter between:

KEVIN TOWNSEND APPLICANT

and

THE STATE RESPONDENT

Neutral citation: Townsend v S (CC 19/2013) [2020] NAHCMD 457 (6 October 2020)

Coram: SIBEYA AJ

Heard: 20, 25 February; 06 March; 27-28 May & 23 September 2020

Delivered: 6 October 2020

Reasons: 6 October 2020

Flynote: Criminal Procedure – Bail – Applicant charged with serious offences – Applicant has a duty to prove on a balance of probabilities that the he should be granted bail pending trail and that the interests of justice will not be prejudiced thereby – Applicant should take the court into his confidence and explain allegations to the best of his abilities – Applicant raised the defence of an alibi which is contradicted by the evidence led by the state – Circumstantial evidence against the applicant demonstrates the strength of the state’s case – Prima facie evidence by the state demonstrates that there is a real possibility that the applicant may be convicted on the charge of murder – The possibility of the conviction and severe sentence increases the risk of abscondment – Interest of the administration of justice and the public in this case requires the applicant be detained in custody while awaiting trial. Applicant failed to satisfy the court that he should be granted bail – Application dismissed.

Summary: This is an opposed application for bail pending trial. The applicant was charged and is arraigned in this court on several charges of: Murder; Robbery with aggravating circumstances as defined in s 1 of Act 51 of 1977 (the CPA); Importation of firearms (firearm barrels) without a permit in contravention of s 22(1) of Act 7 of 1996; Possession of a firearm without a licence in contravention of s 2 of Act 7 of 1996; Possession of ammunition in contravention of section 33 of Act 7 of 1996 and Defeating or obstructing or attempting to defeat or obstruct the course of justice.

The state opposes bail on the grounds that: the offences charged are seriousness; that the state has a strong case against the applicant; that the applicant poses a flight risk; that the applicant will interference with state witnesses; that it is not in the interest of the public or the administration of justice to grant the applicant bail. The trial commenced where several witnesses testified and the matter is still at the stage of the state’s case.

Held that, a court in exercising its discretion whether to grant bail to the applicant or not should consider all factors relevant to bail.

Held further that, an applicant for bail should take the court into his confidence and failure to do so, resulting in the applicant withholding crucial information on critical questions, severely affects the prospects of his application.

Held further that, the applicant bears the onus of proving on a balance of probabilities that his release on bail will not prejudice the administration of justice.

Held further that, the state provided sufficient evidence to contradict the applicant’s alibi defence.

Held further that, on the circumstantial evidence presented there is a likelihood that the applicant will be convicted on the murder charge and receive a lengthy custodial sentence, which is likely to entice him to flee, if granted bail.

Held further that, the applicant’s application for bail pending his trial falls to be dismissed.

______________________________________________________________

ORDER

1. The applicant’s application for bail is dismissed.

2. The accused is remanded in custody pending trial.

3. The application for bail is removed from the roll and regarded as finalised.

RULING

SIBEYA, AJ:

Introduction

[1] Foreign nationals like citizens have the right to apply for bail following their arrest on any charge. Once such application is brought, the court should carefully consider the application in its entirety in order to determine whether the applicant is worthy of being granted bail. The applicant will have to establish that the administration of justice will not be prejudiced by granting him bail.

[2] This court is seized with an opposed application for bail set in motion in February 2020. The applicant was arrested together with Marcus Kevin Thomas (his co-accused) on 07 January 2011. They were arraigned in this court on the following charges:

2.1 Murder;

2.2 Robbery with aggravating circumstances as defined in s 1 of Act 51 of 1977 (the CPA);

2.3 Importation of firearms (firearm barrels) without a permit in contravention of s 22(1) of Act 7 of 1996;

2.4 Possession of a firearm without a licence in contravention of s 2 of Act 7 of 1996;

2.5 Possession of ammunition in contravention of s 33 of Act 7 of 1996.

2.6 Defeating or obstructing or attempting to defeat or obstruct the course of justice.

[3] It appears from the evidence that all the charges revolve around the murder of the deceased, Andre Peter Heckmair. The deceased died of a gunshot wound to the head.

[4] The trial of the applicant and his co-accused commenced and is currently proceeding in this court before another judge. Several witnesses testified in the trial and this is evident from the record produced by the parties in these proceedings. The trial is still at the stage of the state’s case. The applicant therefore applies for bail pending trial.

[5] Mr Siyomunji appeared for the applicant while Ms Verhoef appeared for the respondent.

[6] The state opposed the bail application on the following grounds:

1. The seriousness of the charges against the applicant;

2. The strength of the state’s case;

3. That the applicant poses a flight risk;

4. The risk that the applicant will interference with state witnesses;

5. That it is not in the interest of the public or the administration of justice to grant the applicant bail.

Applicant’s case

[7] The applicant testified in support of his application. He testified that he is a 34 years old American citizen who came to Namibia with his co-accused on holiday on 27 December 2010.[1] Upon entry into Namibia, the applicant was granted a visitor’s visa which was valid for a period of 3 months and only to lapse on 27 March 2011. What is surprising and which remains a mystery is how the accused exited the USA and what route was utilised? His passport is mute on these questions.

[8] His passport, which is in police possession, is valid and due to expire on 20 December 2020. This was his first time to come to Namibia. He was due to return to the USA on 13 January 2011, but for his intervening arrest. He referred to his co-accused as his acquaintance.

[9] His testimony was further that he is a gang member from Harlem, New York in the USA and was detained in police custody in the USA on two gun-related offences emanating from gun-related violent activities. His co-accused together with his relatives and friends paid bail for him to come out of prison on a charge of unlawful possession of a firearm in the USA. He disputed suggestions that it was only his co-accused who paid his bail. These offences were dropped due to statute limitations. The applicant further disputed ever being to Finland where the state alleges that the silencer was shipped from destined to Namibia under the disguise of a furniture (table leg). The relatively new passport of the applicant bears no immigration stamp for Finland.

[10] The applicant testified further that prior to his arrest he met his fiancée Scarlette Urjonita Swartbooi and they intend to get married. Once granted bail, he will reside at his fiancée’s place of residence situated at Erf 3117, Anemone Street, Khomasdal in Windhoek. A statement under oath from his fiancée dated 23 November 2019 was received into evidence.[2] In the statement, his fiancée stated, inter alia, that:

‘I am the fiancé of the accused person namely Kevin Donnel Townsend in this matter, we have been a couple for an extensive period… upon his release on bail he will reside with me at the following residence, Erf 3117 Anemone street, Khomasdal, Windhoek, of which I am the lawful owner…’

[11] The deed of transfer No. T 3805/2018[3] places the ownership of the Erf 3117 (supra) beyond doubt (if any) as it reveals that such ownership vests in his fiancée.

[12] The parents of his fiancée provided separate statements on oath, where they gave permission to the applicant to marry their daughter (his fiancée). They further consented to the applicant to reside at the residence of his fiancée.[4]

[13] The applicant informed the court that upon his release from custody he will pursue a musical career under Olive Entertainment label. The owner of Olive Entertainment Julia Kadhikwa provided a statement dated 11th October 2019 but commissioned on 15th January 2020 on oath, where she stated, inter alia, that:

‘5. Upon his release on bail the accused/applicant in this matter namely Kevin Townsend, will be a recording artist for the aforementioned label.

6.We at Olive Entertainment are also interested in positioning Mr. Townsend in diverse ventures such as acting, modelling and motivational speaking.’[5]

[14] The applicant denied ever attempting to escape from lawful custody like his co-accused. He testified in evidence in chief that he did not know about his co-accused’s attempt to escape. When pressed in cross examination by Ms Verhoef, the applicant stated that his co-accused attempted to escape from lawful custody on 3rd November 2014 and the windows to his cell were cut about a week or a little bit more before the said date. By then the applicant was in solitary confinement.

[15] He further denied committing the offences charged, not even in common purpose with his co-accused as alleged by the state.

[16] The applicant informed the court that on 12th January 2011, he was convicted in this country on the charge of possession of 22 grams of cannabis valued at N$66.[6] He was subsequently sentenced to a fine of N$300 or in default of such payment to imprisonment for a period of 3 months.

[17] The applicant maintained his innocence throughout these proceedings and stated that he will stand his trial. He stated that he has no knowledge of the offences charged. He does not know the deceased and have never met him before. He further stated that at the time of the commission of the murder, he was at African Sky Guest House. A cleaner at the guest house and Donnie Kock can confirm that at around 13:30 the applicant was at the guest house and therefore not at the scene of the murder, so his evidence provided.

[18] The applicant testified further that he never bought a firearm; that no 9mm pistol barrels were found in his possession; that he made no inquiries about the deceased to his family; that he did not hire a motor vehicle from Donnie Kock; that he did not buy any cellular phone and sim cards in Namibia. The applicant testified further that the 9mm gun barrels seized from the room which he shared with his co-accused at the guest house were never used and were still new. He further denied knowledge of the said gun barrels. He also testified that the murder weapon was never found.

[19] The applicant pleaded for bail with strict conditions to be considered by the court.

[20] When asked by Mr Siyomunji during evidence in chief, whether if granted he intended to flee, the applicant respondent that it is not necessary.[7] It was further apparent from the applicant’s evidence that his only roots in Namibia was his fiancée. His parents, his 11 years old son and his sisters all reside in the USA.

[21] The state argued that the existence of a fiancée only does not constitute sufficient emotional roots in Namibia. The position of our law is that an applicant for bail should set out his emotional roots or ties in Namibia for a careful consideration by the court. An examination of emotional roots is vital to establish the possibility whether there is a risk of the applicant to flee upon being granted bail.

[22] Hannah J in S v Yugin and Others,[8] stated as follows:

‘In a bail application the Court has to consider a number of factors. Some militate towards bail being granted, some militate against. One such factor is whether the accused, if granted bail, will stand his trial or whether there is a real possibility that he will abscond. If there is such a possibility no one can properly criticise a Court which, in the exercise of its discretion, refuses bail.’

[23] Various factors should therefore be considered to arrive at a decision whether the applicant poses a flight risk or not. Sight should also not be lost of the fact that there is no mathematical formula dictating that the absence of several emotional roots in Namibia leads to one conclusion of “flight risk”. All factors relevant to bail should be considered in order to arrive at a just decision on whether to grant bail or not.

[24] When asked in cross examination whether he intended to settle in Namibia, the applicant stated that it depends on music and the money in music is in the USA. He intends to be based in Namibia but only travel to the USA on tours for shows. [9]

[25] It should be mentioned that the applicant did not testify to the existence of any assets, be they movables or immovables, that he may have in Namibia.

The respondent’s case

[26] Deputy Commissioner Barry De Klerk (D/Comm De Klerk) testified for the respondent that he was the initial investigator of the murder case. When he was questioned about the possibility of the applicant absconding, he responded that he cannot rule out such possibility.

[27] When pressed by Mr Siyomunji for reasons why the applicant was not charged for attempting to escape from lawful custody while at Windhoek Correctional services and at the High Court building, as the state claimed the existence of such attempt, D/Comm De Klerk struggled to answer. D/Comm De Klerk confirmed that the applicant was never charged under common law or the Prisons Act for escaping or attempt thereof. It became apparent that D/comm De Klerk had no explanation for not charging the applicant save for suggesting that it was because the investigation was guided by the prosecution.

[28] When it was suggested to him by Mr Siyomunji that there are several serious cases where accused persons were released on bail, but did not flee, D/Comm De Klerk agreed.

[29] D/Comm De Klerk confirmed that no identification parade was conducted; no gun powder residue test was carried out; no finger prints were lifted from the items seized from the room at the guest house and no DNA swabs were taken for analysis.

The alibi defence

[30] The evidence of Carina Strydom (Ms Strydom) in the murder trial, which evidence was tendered in these proceedings, stated that the time of the murder was between 12:30 and 13:10-15. During evidence in chief the applicant did not testify to his alibi defence. The accused refused to explain his movements on the day of the murder (07th January 2011) and the following appears on record: [10]

‘Ms Verhoef: And, so on Friday 7th of January 2011 what were you, your movements? That is privilege information from my defence obviously. Okay so you do not want to tell us? Not at this stage no.

Court: Let me just understand that, you are opting not to discuss your movements where you went to on the 7th of January 2011? Correct, Your Honour, that is obviously a part of my defence. I do not believe I should divulge that information right now at bail Your Honour.

Mr Siyomunji that is your instruction as well.

Mr Siyomunji: Indeed so My Lord.’

[31] The applicant appears to place reliance on the evidence of one Maria Maseko (Ms Maseko) to support his alibi defence. Ms Maseko was a cleaner at the guest house and his witness statements do no support the alibi of the applicant. Ms Maseko does not mention in any of her statements that at the time of the murder she saw the applicant at the guest house.

[32] In another witness statement which is incomplete, Ms Maseko stated that on 07th January 2011, she peeped through the keyhole of the room of the applicant and she observed a key therein at around 13:00. Besides the key, when asked whether she saw the applicant, Ms Maseko responded that she was no longer feeling well.

[33] The applicant further found refuge in what he referred to as the evidence of Donny Kock to the extent that Donny Kock allegedly called the guest house during the time of the murder and spoke to the applicant. When pressed in cross examination, the applicant conceded that the Donny Kock did not say that he called the applicant during the time of the murder. When questioned further, the applicant said that he did not know the time that Donny Kock telephoned the guest house. The cellular phone print outs[11] handed into evidence reveal that Donny Kock’s phone number only called the guest house on 07th January 2011 from 14:36 onwards.

[34] It was the testimony of the applicant in re-examination that on 07th January 2011, he moved from the guest house to Maerual Mall where he met a woman named Roxy Shaw. The respondent produced the statement on oath of Roxy Shaw and it was received in evidence. Roxy Shaw mentioned in her statement that she met the applicant and his co-accused and was last in their company on 05 January 2011. She stated that on 07th January 2011, the applicant and his co-accused just called her and her friend, but they never met. This is contrary to the applicant’s claim that he was with her at the mall.

[35] D/Comm De Klerk testified further that there were no eye witnesses to the murder; that a considerable amount of time had lapsed between the time of the murder (between 12:30 - 13:15) and the time of the arrest, which was around 17:30; there was no evidence of the type of clothing worn by the applicant and his co-accused earlier that day, as a result no gun shot residue test was conducted. In any event he further testified that the gun-shot residue can be washed away.

Strength of the state case

[36] D/Comm De Klerk testified that in the room which was occupied by the applicant and his co-accused, two starter packs for the mobile numbers 0816814153 and 0816815154 were retrieved. Inside the room, the police further seized two barrels, a silencer in a table leg, a notebook and a laptop computer containing photographs of the deceased and the deceased’s family.

[37] The evidence of Simon Muliokela, Ashley Hendricks and Gaylo Kavari was received into evidence in these proceedings.[12] Mr. Siyomunji’s criticism of the three witnesses’ evidence was that, the trio participated in criminal activities and should have been charged and prosecuted. By fact alone, they cannot be credible and as such their evidence cannot be reliable. I pause to state that the three witnesses corroborated each other and their evidence was further corroborated by independent evidence. The relevance of their evidence in this matter cannot be undermined.

[38] The evidence is apparent that the applicant met Simon Muliokela but the applicant during his evidence refused to disclose the reason for meeting Mr Muliokela.[13] Mr Muliokela’s testimony was, inter alia, to the extent that he was approached by the applicant and his co-accused together with Mr Muliokela’s cousin Jerome on 1st January 2011. The applicant accompanied by his co-accused requested Mr Muliokela to find a gun for them specifically a 9mm pistol.

[39] The applicant removed a silver pipe out of a black plastic bag and asked Mr Muliokela if he knew the object which he held. Mr Muliokela responded in the negative. The applicant then said while demonstrating that, it is a barrel that fits into a gun and upon firing a gun, it leaves a mark on the bullet. The applicant proceeded to state that they were in need of a 9mm pistol in order to exchange the barrels of such 9mm with what they had. Only a 7.65mm pistol was eventually found through Ashley Hendricks and Gaylo Kavari, which the applicant and his co-accused purchased for N$1 000.[14]

[40] The protagonists for and against the application for bail argued on the fact that the applicant delayed the institution of his bail application by 9 years. The representatives argued contrariwise on this aspect. To his credit the applicant proffered an explanation to the said delay and stated that he waited for important witnesses to first testify in his trial in order to prove that the state had no prima facie case against him.

[41] I find that an accused has the right to apply for bail and at any time, whether immediately after arrest but before detention, soon after detention or sometime after detention. I fail to appreciate how the delay in bringing a bail application can be said to count against him. I find this issue to be immaterial to the determination of whether bail should be granted or not. For that reason alone, I am not to entertain it any further. For what it’s worth, I do not consider the delay of 9 years to bring the bail application to count against the applicant.

[42] The 7.65 mm pistol sold to the applicant and his co-accused was sold with corresponding ammunitions for a 7.65mm. Ashely Hendricks and Gaylo Kavari corroborated the evidence of Mr Muliokela during the trial regarding the sale of the 7.65mm.

[43] It is undisputed evidence that the death of the deceased was caused by a gunshot wound to the head. The spent projectile retrieved from the deceased’s head was that of a 7.65mm pistol.

[44] Evidence during the trial which was further produced during these proceedings is that the ex-girlfriend of the applicant’s co-accused was in a romantic relationship with the deceased at the time of his death.

The law

[45] The court has a discretion, which it should exercise judicially, whether or not to grant bail to an accused person. The primary consideration in the exercise of such discretion is to seek to strike a balance between protecting the liberty of the individual and safeguarding the administration of justice. It is settled law that in this process, courts must be mindful of the constitutional presumption that an accused is presumed innocent until proven guilty. [15] Pre-trial incarceration should thus not be a form of anticipatory punishment. Courts will thus always lean in favour of granting bail for as long as the interest of justice will not be prejudiced in such process.

[46] In S v Du Plesis and Another,[16] O’Linn, J stated:

‘It seems apposite here to deal briefly with the continuous and, it seems, selective emphasis placed by some accused persons and their legal representatives on certain sections of the Namibian Constitution and certain fundamental rights, such as the ‘liberty of the subject’, ‘a fair trial’ and the principle that an accused person is regarded as ‘innocent until proved guilty’ These very important fundamental rights are, however not absolute but circumscribed and subject to exceptions. The particular right relied on must be read in context with other provisions of the Constitution which provide for the protection of the fundamental rights of all citizens or subjects, which provides for responsibilities of the subject, for the maintenance of law and order, for the protection of the very Constitution in which the rights are entrenched and for the survival of a free, democratic and civilized State.’

[47] I am in agreement with the above passage. I emphasize that the right to liberty may be limited subject to the law, failing which the administration of justice may be severely compromised, a situation that this country cannot afford. The applicant retains the responsibility to prove that the interest of justice will not be prejudiced by his release on bail.

[48] In the quest to prove that bail should be granted to him, the applicant, should place sufficient facts and evidence before court, the basis on which, the court can properly exercise its discretion. To simply put bare statements that he will not abscond or that he will not interfere with state witnesses, is insufficient to say the least.

[49] A rehearsal of the trial during bail proceedings is not advisable, lest the purpose of the bail application may be lost. It should be mentioned that the parties, in casu, laboured this court with the full record of the proceedings of the trial court, which is over a thousand pages, over and above several other exhibits produced. Not only is this approach undesirable, but it elevated the bail application to a fully-fledged trial, a situation which is discouraged. Hannah J in Yugin and Others (supra)[17] stated that:

‘The bail application is not, of course, the trial itself. It is not the occasion when the prosecution has to prove the guilt of the accused. What it has to do is to demonstrate, through credible evidence, the strength or apparent strength of its case. … the kind of sentence which would probably follow upon a conviction, increases the risk of the appellants' deciding to abscond. The next step is to consider the ties which an accused has with this country. This again goes to the incentive to abscond. Common sense dictates that an accused who has been born and bred in Namibia, whose home and family are in Namibia and who has no refuge elsewhere, is less likely to abscond than an accused who is a foreign national resident here solely or mainly for business reasons.’

Analysis

[50] It was submitted by Ms. Verhoef that the sworn statement of the applicant’s fiancée is silent on her intention to marry him. It was further argued that she does not reciprocate the commitment to the intended marriage as demonstrated by the applicant. This argument can be disposed of without breaking a sweat. Applicant’s fianceé confirmed on oath that the applicant is her fiancé, who, upon his release from custody would reside at her place of residence.

[51] The loose definition of the word ‘fiancé’ refers to a person to whom one is engaged to be married or plan to marry. It therefore follows that embodied in the word fiancé is the reference of intention to marry. By virtue of referring to the applicant as her fiancé, the applicant’s fiancée demonstrated that she intends to marry the applicant. I am thus not persuaded that the absence of the expression of the words of intending to marry the applicant or that she loves the applicant in her statement, diminishes her status as the fiancée of the applicant and that they both intend to get married to each other.

[52] The evidence of Sgt maria Johannes about the incident of 20 March 2019 that the applicant attempted to escape while at the court building was disputed and was not convincing to this court. Sgt Johannes could also not explain the reason why a case of attempt to escape was not registered against the accused, if at all the applicant attempted to so escape.

[53] Henry Olivier testified during the trial that he provided the applicant (whom he referred to as ‘Cash’ with the mobile number 0816814154), with the mobile of the deceased on 28 December 2010.

[54] The mobile number 0816814153 first contacted the deceased on 02 January 2011 and it was the last number that contacted the deceased on the date of his death on 07 January 2011. This number is linked to the applicant’s co-accused. According to Donny Kock, the applicant’s co-accused rented his motor vehicle and provided the number 0816814153 as his mobile number.

[55] What is disturbing is the fact that when it comes to material questions to explain his movements on the fateful day of 07th January 2011 and the reasons why he met Mr Muliokela (who facilitated the purchase of the 7.65mm pistol), the applicant opted not to divulge the required information to the court. This is indicative of the applicant not taking the court into his confidence. In re-examination of his evidence only, when he explained his movements on 07th January 2011 or attempted to do so, in order to emphasize his alibi defence, such evidence was contradicted by the statements and evidence of persons (Ms. Maseko, Donny Kock and Roxy Shaw) whom he claimed could support his version. This places his alibi defence on shacky grounds.

[56] The circumstantial evidence mounted against the applicant is of such a nature that, properly considered, may result in the applicant being convicted of the murder of the deceased. These proceedings are not to aimed at determining the guilt or otherwise of the applicant, but I state without fear of contradiction that the state produced evidence enough to demonstrate that it has a strong case against the applicant.

[57] The seriousness of the charges formulated against the applicant, particularly the murder, is of such calibre that, if proven, the applicant will receive a lengthy custodial sentence. Where the state has a strong case against an applicant for bail, the possibility of a severe sentence, can be an enticement to the accused to flee and therefore jeopardize the administration of justice.

[58] The parties extensively argued on whether the fact that the applicant’s visitor’s visa expired while he is detained in police custody coupled with his conviction of the charge of possession of cannabis makes him a prohibited immigrant or not in terms of the Immigration Control Act.[18] This court mentioned to the parties that this issue will be addressed in the judgment. However, in view of the conclusion reached herein, it has become academic and thus unnecessary to entertain the said question and I shall leave it for debate on another day.

Conclusion

[59] The evidence presented in this bail application, inclusive of the evidence of witnesses who already testified in the trial of the applicant and his co-accused, coupled with the evasiveness of the applicant by not taking this court in his confidence, seriously dents the applicant’s bail application.

[60] Notwithstanding the genuine intentions that the applicant and his fiancée may have to get married soon after he is granted bail in the amount of not more than N$10,000 (or more as the court may determine) with stringent bail conditions as proposed, this fact is found not to be worthy enough in this matter to be the foundation of granting the applicant bail. I am of the considered view that interests of the applicant are far outweighed by the interests of the administration of justice herein which requires that the trial should see its logical conclusion without any hindrance from the applicant. I further find that the strength of the state’s case referred to herein above may lead to the applicant’s conviction, consequently a severe sentence is likely to be imposed and this has a strong likelihood of enticing the applicant who has few emotional ties to this country to flee.

[61] Considering all the evidence led and weighing same against the applicant’s personal circumstances (inclusive of his intentions to get married, his willingness to support his child and family), coupled with the submissions made by counsels from both sides, I am satisfied that the applicant failed to establish that he is worthy of being granted bail and further that such decision will not prejudice the interests of justice. I have further considered the possibility to impose strict bail conditions in order to suppress risks that may be involved but I am of the view that this will not be sufficient to protect the interests of justice. I hold the further view that the public interest and interests of the administration of justice in this matter requires that the bail application be refused.[19] In light of the above findings and conclusions, I find that the applicant’s application for bail falls to be dismissed.

Order

[62] In the result, it is ordered that:

1. The applicant’s application for bail is dismissed.

2. The accused is remanded in custody pending trial.

3. The application for bail is removed from the roll and regarded as finalised.

_____________

O S SIBEYA

ACTING JUDGE

APPEARANCES:

APPLICANT: M Siyomunji

Siyomunji Law Chambers

Windhoek

RESPONDENT: A Verhoef

Office of the Prosecutor-General, Windhoek.

-----------------------

[1] Exhibit “B”.

[2] Exhibit “C1”.

[3] Exhibit “C2”.

[4] Exhibit “D” and “E”.

[5] Exhibit “F1”.

[6] Exhibit “G”.

[7] Record p. 12 E-2020.02.20.

[8] S v Yugin and Others 2005 NR 196 HC 200A-G.

[9] Record p. 25-26 E-2020.02.25.

[10] P. 80 E-2020.03.06.

[11] Exhibit “X”.

[12] Exhibit “SS1”.

[13] Record p. 56 E-2020.02.25 and p. 83 E-2020.03.06.

[14] Exhibit “GG”.

[15] Article of 12(1)(d) of Namibian Constitution.

[16] 1992 NR 74 (HC).

[17] 2005 NR 196 (HC) 200.

[18] Act 7 of 1993.

[19] S 61 of the CPA.

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