CASE NO.: CC 05/2006

IN THE HIGH COURT OF NAMIBIA

In the matter between:

THE STATE

and

NICODEMUS
SHINANA Accused

CORAM: DAMASEB, JP

Heard on: 24 April 2006

Delivered on: 24 April 2006

______________________________________________________________________________

SENTENCE

[1] DAMASEB, JP:
I found you guilty of murder with dolus eventualis. The
State Counsel asks that I impose a sentence of 20 years. The crime
you committed is very serious. A life of another human being has
been needlessly lost. In almost every other murder case called
before me while here on Circuit, the use of a knife is involved.
That is very disturbing. The Court must send a clear message that
the use of knifes to needlessly kill others will not be tolerated and
the community expects the Courts to mete out appropriate punishment.

[2] You are a very young man
still and deserve another chance in life. I found that you were
beaten and insulted by the deceased and another. It is generally
accepted that young people do not have the same tolerance level as
much older persons and that you may have irresponsibly overreacted to
the assault and insult. I take that into account in the sentence I
impose. I also take note that your family paid 12 cattle to the
family of the deceased. That is at least some solace for the loss
they suffered through the death of the deceased.

[3] I also take into account
that you have already spent 1 year and 9 months in prison awaiting
your trial. The sentence I impose also takes that into account.

[4] Balancing the aggravating
circumstances against those in mitigation, I sentence you to 15
(fifteen) years imprisonment of which 5 (five) years are suspended
for the period of 5 (five) years on condition that you are not
convicted of murder during the period of suspension.

______________

DAMASEB,
JP

ON BEHALF OF THE
STATE: Ms S Miller

Instructed By: Office
of the Prosecutor-General

ON BEHALF OF THE
ACCUSED: Ms F Kishi

Instructed By:
Directorate of Legal Aid

CASE
NO.: CC 05/2006

IN
THE HIGH COURT OF NAMIBIA

In
the matter between

THE
STATE

and

NICODEMUS
SHINANA Accused

CORAM: Damaseb,
JP

Heard
on: 21 April 2006

Delivered on: 24 April
2006

JUDGMENT

DAMASEB. JP: [1]
The accused, a herds-man and grade 9 drop-out who was 24 years old
when the alleged offence was committed, faces a single count of
murder. He is accused of having inflicted two fatal stab wounds to
the deceased, Joseph Nantapo, on 22 July 2004. The accused admits
that he stabbed the deceased but says he only stabbed him once. In
his plea explanation he states that he had no intention to kill the
deceased and that he did so in self-defence. The warning statement
taken on 26 July 2004 makes no mention of any noticeable physical
injuries on the accused. That statement was admitted in evidence
without any objection thereto. In that statement he only makes
reference to being beaten and being poured over with beer whereafter
he stabbed the deceased. He also confirmed that he stabbed the
deceased in the chest. During the s119 proceedings, also admitted in
evidence without objection, he said: “I am not guilty as the
deceased is the one who provoked me. I was just looking for
Shigwedha to go to the telephone. He just came beating me with fists
saying that I am rude and they were two and I was having a knife and
I took the knife to defend myself.”

[2] The medical evidence, led
through Dr Yuri Vasin, is clear: the body of the deceased had two
stab wounds: one to the front (just below the chest) and one to the
back. Either one of these wounds could, by itself, have caused the
death of the deceased. The pathologist described both wounds in
meticulous detail and made clear that both were penetrating wounds
with separate tracks into the body. He excluded the possibility that
the deceased was stabbed once only. He testified that in any event
it would have required a knife twice the length of the one tendered
in evidence to have caused the same entry and exit wound. It is
common cause that the knife used is a carving knife 20.3cm in length
and 20mm in width - with a sharp stainless blade. It was led into
evidence and I was able to see it. It is, by any account, a very
lethal weapon.

[3] The medical evidence that
two wounds were inflicted on the deceased with a knife remains
established beyond reasonable doubt. I find the accused’s version
that he only stabbed the deceased once as not only untrue, but as
false beyond reasonable doubt. There was not even an iota of
evidence that anyone else may have stabbed the deceased. No such
possibility was even as much as hinted at by the defence.

[4] The investigating officer
W/O Likius Helao testified that when he came to the scene of the
crime the accused pointed out the murder weapon to him and said that
he stabbed the deceased during a quarrel. He persistently denied
that the accused ever mentioned a fight, or that one Andija had some
role in it.

[5] The second witness was
Dawid Paulus, also known as Andija. He is the owner of the Cuca shop
“Ou Klere” where the accused admits he stabbed and killed the
deceased. The gist of his evidence is that he never saw or separated
a fight. When he was told that someone was killed he went to report
to the headman. He never noticed any quarrel – at least not
between the deceased and the accused.

[6] The next witness to
testify was Isaac David Shavuka. The accused lived with him for
about six months before this incident. The accused ate in his
household. Shavuka, a teacher, testified that when he arrived at the
scene the accused told him he stabbed the deceased because the
deceased beat him with a clinched fist in the face. He denied that
the accused ever said to him that persons other than the deceased
beat the accused.

[7] The accused testified on
his own behalf and was cross-examined. He made a very poor
impression on the Court as a witness. He was very evasive and
changed his evidence as he went along and lied repeatedly to
extricate himself when he discovered that he contradicted himself.
Where his version is at variance with that of State witnesses, I
prefer the version of those state witnesses. The gist of his story
is that he came at Dawid Paulus (a.k.a. Andija) Cuca shop to look for
someone by the name of Shighwedha. At the Cuca Shop he found people
drinking. The deceased, a person known to him as Sam, was one of
them.

[8] The deceased and others
swore at him, and also made reference to his mother’s anus. The
accused then beat him; and they beat each other. Andija separated
the fight and chased away the deceased who did not leave and only
waited outside the Cuca shop. The deceased beat him again. He ran
away. The deceased and another pursued him and caught up with him.
The deceased beat him again and the friend of the deceased poured
beer over him. He then took out a knife and stabbed the deceased in
anger. He said he had no reason to stab the deceased. He said he
wanted to scare off the attackers. He also said he was afraid
because it was dark. He persisted that he did not intent to kill.

[9] In cross-examination he
stated that he aimed the knife at the deceased’s chest. (Although
under questioning by the Court he said he aimed at the deceased’s
clinched fists which were held against the chest.) The accused
testified that he had the knife on him that day because he used it
earlier in the day to slaughter and cut up a beast whose meat they
sold.

[10] I have carefully reviewed
the evidence and come to the following conclusions: I accept that
the deceased and another insulted the accused. I also accept that
the deceased beat the accused. I reject the accused’s version that
he used the knife in self-defence. Even if I am wrong in that, the
use of the knife in the particular circumstances of this case, is out
of all proportion to the threat the accused faced.

[11] Even if I give him the
benefit of the doubt that one strike was necessary to ward off an
attack, I cannot think of how the second could have been justified in
the circumstances. That much is clear from the fact that he has
chosen to lie about how many wounds he inflicted on the deceased.
Add to this his own version under oath – both in-chief and in
cross-examination - that there really was no need to stab the
deceased and that he did so in anger.

[12] I am satisfied that the
accused subjectively appreciated that death would result from the use
of the knife on the deceased. He deliberately aimed at a vulnerable
part of the deceased’s body. He quite evidently knew the lethal
character of the knife. He used it for the purpose of cutting up a
beast earlier that same day. The suggestion that he only after the
incident found out that a knife can cause death is so patently false
and an after-thought. He reconciled himself to the possibility that
the stabbing of the deceased with that knife would kill the deceased.

[13] I am however not
satisfied that he had direct intent to kill.

[14] I accordingly find that
the State discharged the burden of proof beyond reasonable doubt and
find the accused guilty of murder of Joseph Nantapo with dolus
eventualis.

_______________

DAMASEB, JP

ON BEHALF OF THE STATE:
Ms S Miller

Instructed By: Office
of the Prosecutor-General

ON BEHALF OF THE
ACCUSED: Ms F Kishi

Instructed By:
Directorate of Legal Aid