S v Haileka (CA 92 of 2006) [2006] NAHC 62 (30 November 2006);
CASE
NO.: CA 92/2006 NELSON
HAILEKA v THE STATE
MULLER,
J 30 November 2006
o
Appellant
was convicted culpable homicide and sentenced to 5 years imprisonment
in which 2 years were conditionally suspended.
o
State
called only one witness who did not observe the stabbing of the
deceased.
o
Appellant
testified that he acted in self-defence after being attacked by the
deceased with a knife.
o
Court
of appeal found that version of appellant may be reasonably possibly
true and cannot be rejected. S v
Difford 1937
AD 370 and S v
Kubeka 1982
(1) 534 (W). Discussed and applied.
o
Magistrate
erred in rejecting the appellant's version of self-defence and
finding that appellant exceeded the bounds of self-defence.
o
Novus
actus interveniens -
applicable law discussed.
o
Cause
of death an abscess in the brain as a result of an infection.
o
No
medical evidence given and only certain agreements in respect of
medical
evidence and the Post
Mortem report
before the court a
quo.
o
Held
that it is not the probability of a novus
actus interveniens that
is in issue, but whether the magistrate had expert medical evidence
on which she could consider whether there was a novus
actus.
o
Held
that the magistrate could not make such a decision with the medical
evidence, or lack thereof, before her.
o
Appeal
succeeds and conviction and sentence set aside.
CASE
NO.: CA 92/2006
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
NELSON
HAILEKA APPELLANT
and
THE
STATE RESPONDENT
CORAM: MULLER,
J
Heard
on: 14
November 2006
Delivered
on: 30 November 2006
APPEAL
JUDGMENT
MULLER,
J:
[1]
The appellant was convicted on a charge of culpable homicide in the
Regional Court Windhoek on 05 August 2004 and was sentenced to 5
years imprisonment of which 2 years were conditionally suspended. The
appellant pleaded not guilty to the said charge and was represented
by Mr du Pisani, instructed by Legal Aid Board of Namibia. The
appellant admitted in terms of s 220 of the Criminal Procedure Act
that he stabbed the deceased on his head, but raised the defence of
self-defence.
[2]
The appellant gave notice of appeal against his conviction on 19
August 2004 on the following grounds:
"1.
The learned Magistrate erred in finding that the State had proved
beyond a reasonable doubt that the Appellant:
exceeded
the bounds of self-defence and/or
should
have foreseen the possibility of death ensuing to the deceased
and/or
negligently
caused the death of the deceased.
2. The
learned Magistrate erred in finding that the deceased was not armed
with a knife when stabbed by the Appellant. More particularly the
learned Magistrate
erred in:
ignoring,
alternatively not attaching due weight to the fact that a State
witness, who was not called by the State and who was not present and
available at the trial, stated in his statement made to the police,
that the Appellant and deceased were fighting with knives;
finding
that the evidence of the Appellant to the effect that the deceased
attacked him with a knife, which was the only eye witness account
before court of the events preceding the stabbing, was not
reasonably possibly true.
3. The
learned Magistrate erred in finding that the deceased, being
intoxicated at the time of being stabbed, could easily have been
overpowered by the Appellant by means other than stabbing the
deceased, thereby ignoring, alternatively attaching insufficient
weight to the evidence given by the only State witness to the effect
that the deceased, in his drunken state, was very unruly and too
strong to submit.
The
learned Magistrate erred in finding that it is reasonably to be
foreseen that a stab wound to the head, inflicted in the locality
and manner as the Appellant did, would result in death.
The
learned Magistrate erred in finding that the means used by the
Appellant to ward off the attack on himself was not justified.
The
learned Magistrate erred in finding that the failure to keep the
wound of the deceased properly clean, which in fact resulted in it
becoming infected and in an abscess forming in the brain of the
deceased, was a novus
actus interveniens."
[3]
During the trial which commenced on 28 July 2004 the State called one
witness and after handing in the Post
Mortem report
by agreement, it closed its case. The following admission made by Mr
du Pisani was recorded and appears on p 35 l 2-5 of the record:
"I
have no objection to the post mortem report being received in
evidence as an exhibit. It will not be necessary for the Doctor to
testify."
In
respect of the doctor, Mr du Pisani apparently consulted with her and
certain admissions were recorded. The State did not call her to
testify. I shall deal with this issue later herein.
The
defence only called the appellant to testify. The matter was then
postponed and judgment was given and sentence imposed on 05 August
2004.
[4]
Mr
du Pisani again appeared on behalf of the appellant in this appeal,
instructed by Legal Aid and Mr Muvirimi for the State. Useful heads
of argument were provided to the Court by both counsel.
[5]
At the outset, I deem it necessary to refer to the factual history of
this matter and record the facts that are common cause:
The
deceased was stabbed on his head by the appellant with a knife on 07
December 2004;
The
appellant was the only witness who testified what happened between
him and the deceased during the stabbing of the deceased until the
witness Mr Mokalele arrived at the scene;
Mr
Mokalele witnessed that the deceased was the aggressor and that he
attacked the appellant, but did not see that the deceased had a
knife;
After
the appellant had left, a taxi was called to take the deceased to
the hospital, but he refused to get into the taxi;
The
deceased went home;
The
deceased died on 26 December 2004; and
The
cause of the death was an according to the Post
Mortem Report
"head injury skull fracture, abcesss intrabrain"
[5]
The crucial dispute regarding the stabbing of the deceased and the
defence of self-defence was whether the deceased also had a knife or
not. The appellant testified that the deceased had a knife and
attacked him with it. Although the knife (of the deceased) was not
found afterwards and was not seen by the witness Mokalele, Mr du
Pisani submitted that the evidence of the appellant should be
accepted in this regard. He further submitted that on the strength of
the principle laid down in the case of S
v Blom 1939
AD
288
in
respect of circumstantial evidence to the effect that the inference
to be drawn based on the circumstances must be the only inference
that can be drawn, with exclusion of any other possible inference. Mr
du Pisani suggested that there may also be other inferences that can
be drawn in respect of the missing knife of the deceased and that the
evidence in that was regard not so decisive as to exclude any other
possibility. After perusing the evidence of the appellant it seems to
me it is a possibility that the deceased may have had a knife and
that the knife was taken away by another person, or got lost that
night. Only the appellant testified, but it is clear that there were
indeed other people present when the incident occurred. However, none
of them were called by the State to testify. It appears from the
record that the police did take a statement of one of those persons,
but he was not called, presumably because of unavailability. There is
no explanation why any of the other persons present was not called to
testify.
[6]
When
Mr Mokalele arrived at the scene, he saw the deceased attacking the
appellant, but without a knife. It is strange that if the deceased
had a knife and was already stabbed by the appellant, that he did not
use it and that Mokalele
did not see the knife. I am also not absolutely convinced the way the
appellant described the altercation between him and the deceased
before Mokalele, arrived is what really happened. However, even if I
do entertain certain doubts, about this evidence, it cannot be held
that the appellant lied in that regard. I am mindful what Greenberg
JA said in S
v
Difford 1937
AD 370, a consideration that was thereafter followed and remain a
useful guideline still today:
"
"It
is not disputed on behalf of the defence that in the absence of some
explanation the Court would be entitled to convict the accused. It is
not a question of throwing any onus on the accused, but in these
circumstances it would be a conclusion which the Court could draw if
no explanation were given. It is equally clear that no onus rests on
the accused to convince the Court of the truth of any explanation he
gives. If he gives an explanation, even if explanation be improbable,
the Court is not entitled to convict unless it is satisfied, not only
that the explanation is improbable, but that beyond any reasonable
doubt it is false. If there is any reasonable possibility of his
explanation being true, then he is entitled to his acquittal."
S
v Difford, supra, p
373; R
v Vlok and Vlok 1954
(1) SA 203 SWA at 207 B-C.
The
test laid down in S v
Kubeka 1982
(1) SA 534 (W) when there is reasonable doubt about the accused's
guilt or not, is not whether the court subjectively disbelieves him.
The court does not even have to reject the State's evidence in order
to acquit him. It is simply that if there exists a reasonable
possibility that his evidence might be true, he has to be acquitted.
[7]
After
considering all the evidence, I am not able to support the finding of
the magistrate that the appellant did not act in self-defence. In my
opinion the evidence of the appellant in respect of stabbing of the
accused should have been accepted and the magistrate erred in
rejecting it. An appellant's evidence of that incident is the only
direct evidence of what happened and is to some extent supported by
Mokalele, who witnessed the deceased attacking the appellant. That
evidence should have been accepted, as well as the appellant's
version of self-defence.
[8]
The
magistrate found that the appellant exceeded the bounds of
self-defence. If she accepted that the appellant acted in
self-defence, it could only be on the appellant's evidence. Even if
there were separate incidents and the stabbing occurred only during
the second incident, the appellant's evidence is the only evidence of
what happened. Mokalele did not witness the stabbing of the deceased.
On what basis can it then be said the appellant exceeded the bounds
of self-defence? His evidence was that he was attacked by a armed
around with a knife and had to defend his life. In my opinion the
magistrate erred in this regard.
[9]
It is significant that the appellant was from the beginning charged
with culpable homicide and not murder. The essential elements of that
offence is the negligent killing of another person and intent to kill
is not an element. It should have been proved that the appellant's
conduct was negligent and the
reasonable man -
test has to be applied. The appellant's conduct has to be weighed up
against what a reasonable
man
would have done in the circumstances and what he would have foreseen.
Although such a person is not required to foresee the specific manner
of the death, the South African Appellate division held with regard
to intent that the foreseeable manner of death occurring must
coincide substantially with the actual manner in which
death
did come about. S
v Goosen 1989
(4) SA 1013 A at 1026I.
With
regard to the question of the accused acting in self-defence the
author Milton said the following on p 381, 3rd
edition, volume II of South
African Criminal Law and Procedure:
"Thus
where X, acting in self-defence, uses excessive force in repelling
Y's attack or uses deadly force when it was not necessary to do so,
he will be guilty of culpable homicide only if it is proved that he
'ought reasonably to have realized that he was acting too
precipitately and using excessive force.'"
(Also
S
v Ngomane 1979
(3) SA 859 (A) at 863H and S
v Ntuli 1975
(1) SA 429
(A)
at 436 F-H.)
On
the only evidence before the Court, namely that of the appellant, the
magistrate could not make a finding that the appellant's conduct was
contrary of that of a reasonable
man
under the same circumstances.
[10]
The medical evidence is another issue. One would have expected of the
State to call an expert medical witness. It is one thing to have the
Post
Mortem report
handed in by agreement in respect of factual evidence, i.e. the
number of stab wounds, etc. It is, however, quite another thing to
rely on issues that can only be provided by expert opinion. Although
consulted by Mr du Pisani too, the doctor was not called to testify.
Certain matters to which the doctor had to testify was put on record
by agreement, but is not clear from the record that it was not agreed
that the stab-wound was the primary cause of death and the abscess a
secondary cause. From the record it appears that the following
discussion ensued and that it may be assumed that certain issues were
placed on record, but not all.
"Court: Okay,
Anything else that you wish to say?
Mr
du Pisani: I
just wish to clarify it a little bit and my Learned Friend can
confirm or correct me in this regard, what the doctor said is that
the abscess that she noted on her report as one of the cause of death
was in fact inside the brain and that was caused, as my Learned
Friend stated, by infection attributed to secondary causes and not
the stab wound itself.
Court: Uh-hmm.
Mr
du Pisani: As
the Court pleases.
Court: So
the abscess should be regarded as secondary to the main being the
stab wound, is that what you're saying?
Mr
du Pisani: Your
Worship, actually as I understood the doctor, what she said is that
the skull fracture it is very possible that the, well that was caused
by the stab wound and if there was no skull fracture
(intervention)
Court: Uh-hmm,
then?
Mr
du Pisani: That
there could not have been an infection in the brain. So the skull
fracture in itself was not a danger or dangerous alone-standing but
it was, it made the infection possible and ultimately it was the
infection which killed the, or the abscess which caused the death.
Court:
What
do you say?
Mr
Tjiuoro: Your
Worship, actually it is a matter for submission, I believe, but in
any case we have a secondary, the main secondary. The primary cause,
Your Worship, one would say is the stab wound; the abscess, yes, is
secondary to the skull fracture because it is deterioration of the
wound that caused the death. So (intervention) Court:
Should
you not agree on that thing then you probably have to call the
evidence the medical evidence but the way I understand it is that
this stab wound, I mean, j, the fracture of the skull is the primary
cause.
Mr
Tjiuoro: Was
caused by the stab wound. Is said to be the primary cause even the
way she put it here, then having been stabbed and I mean due to the
lack of proper medical care this person or the deceased, developed
the abscess. So as to say had it not been the stab wound or the skull
fracture probably this person could have developed the abscess
because there would be no wound actually in the brain even if, is
that what I understood you to mean? Mr
du Pisani: Correct,
Your Worship.
Court: Okay.
So can we then do way with the doctor's evidence?
Mr
du Pisani: Yes,
Your Worship. I was just concerned about the issue of primary and
secondary causes of death. The causes of death are stated here and
they are all equal but as you set it out, without the skull fracture
it could not lead to the other cause. So, that regard, we' re all in
agreement, Your Worship.
Court: Okay.
Mr
du Pisani: And
it was pointed out by the doctor and you correctly summarized that
the abscess, in fact, eventually was the result of the wound not
being cleaned.
Court: Hmm"
[11]
It seems that the parties were in agreement that he cause of death
was an abscess that developed inside the head of the deceased as a
result of an infection. The question is whether the cause of this was
the stab-wound inflicted by the appellant. It is necessary to refer
to the relevant dates. The deceased was stabbed by the appellant on
07
December
2004
and
he refused to go to the hospital on that day. Apparently sometime
later in December 2004
he
went to the hospital and the infection was discovered. He died on 26
December
2004.
It
seems to be a possibility that the infection developed as a result of
the wound not kept clean. This was referred to and relied on by Mr du
Pisani as a novus
actus interveniens, which
intervened the chain of causation to the effect that the appellant
could not have been held responsible for the death of the deceased.
[12]
The two issues that arise, namely what was the real cause of the
deceased's death and whether was a novus
actus interveniens could
have been clarified by the expert evidence of the doctor. I have
already mentioned that the agreements between the State and defence
regarding the exclusion of that evidence fell short and that a
crucial issue was not agreed upon. By failing to lead evidence
thereon with the State bearing onus,
the
magistrate was not put in a position to make a decision of what is
essentially opinion evidence. The doctor could have cleared up
relevant questions, namely the nature and extent of the infection,
how was it caused, whether it was related to the stab-wound or
whether deceased failed to keep it clean, whether he would have lived
if he received proper medical care timeously, or whether the
deceased's death was a direct result of the stab-wound. Without such
evidence the magistrate had no basis to make a proper decision. It
may very well be that there was another inference to be drawn in
respect of causation, namely that something else may have intervened
between the appellant's initial action and the death of the deceased,
i.e. a novus
actus interveniens.
[13]
Normally
the intervening incident that the breaks the chain of causation and
constitutes a novus
actus interveniens has
to be an abnormal one and not one foreseen by the person injuring
another. Originally certain decisions, such as R
v
Holland (1841)
2 Mood and R351
held that subsequent medical treatment or maltreatment of himself
cannot be regarded as a novus
actus interveniens. Milton
in his work South
African Criminal Law and Procedure, supra, considered
the old English decisions in the light of the advances of medical
science, as well as later English decisions and South African cases
on this issue. After analysing these cases the learned author made
the following submissions:
"It
is submitted that:
(i) The
Gardiner
& Lansdown (or
Holland) rule can no longer be regarded as applicable.
(ii) If
the wound is not
'intrinsically
dangerous', a refusal or disobedience of treatment (or application of
improper treatment) by Y constitutes a novus
actus if,
having regard to his environment, 278
such refusal, disobedience or improper treatment can be regarded as
(grossly?) negligent or (what perhaps means the same thing)
abnormal,279
and itself hastens death.280
(iii) On
the basis of R
v Loubser and
S
v
Taylor (but
contrary to Rooi
and
Mubila)
the
rule may be the same even where the wound is 'intrinsically
dangerous,281
but
not if the wound is so dangerous that it is 'mortal': likely to cause
death even if available treatment is obtained. 282
The
following example makes it clear that this should be the case: X
inflicts a dangerous wound on Y, who, though an educated man living
in a civilized community, refuses, (for religious or malicious
reasons) to undergo a blood transfusion which would certainly save
him, and dies. Y's refusal ought to be treated as a novus
actus just
as much as if he were to commit suicide. 283
If abnormality is a dominant criterion, it cannot necessarily be
predicated upon a non-dangerous wound. The conjuction of
circumstances may be so startling, even if the case of a dangerous
wound, that that conjuction should be labelled 'abnormal'."
[14]
Without elevating the submissions of Milton to general principles
that should be followed, I do make the following observations from
the cases analysed by Milton and the situation pertaining to this
appeal, namely that it seems that the courts came to the conclusions
they did in those cases on medical
evidence
presented at the trial and, secondly, that important facts such as
the seriousness of the stab-wound inflected by the appellant, whether
it could lead to an infection and later and abscess developing,
whether the infection was caused by the deceased's failure to clean
it or to receive medical treatment and remoteness of the stab-wound
and the eventual cause of death, were not sufficiently examined and
evidence in that regard put before the magistrate to be considered.
In my opinion, the question is not whether there was a novus
actus interveniens, but
whether the magistrate could evaluate that possibility in the light
of the lack of the factual and medical evidence. In the light of the
circumstances this has to be answered in the negative.
[16]
It
is not necessary to deal with every ground of appeal in detail.
Considering all these issues and the evidence put before the
magistrate, I am convinced that he magistrate materially erred in
convicting the appellant of the offence of culpable homicide.
[17]
In
the result, the appeal succeeds and the conviction and sentence of
the appellant are set aside.
MULLER,
J
ON
BEHALF OF THE APPELANT: Mr
LH du Pisani
Instructed
By: Directorate
of Legal Aid
ON
BEHALF OF THE RESPONDENT: Mr
A Muvirimi
Instructed
By: Office
of the Prosecutor-General