S v Shipanga and Another (CC 02/2009) [2010] NAHC 38 (17 June 2010);

Group

Full judgment



CASE NO.: CC 02/2009

NOT REPORTABLE


IN THE HIGH COURT OF NAMIBIA



In the matter between:



THE STATE



and



FANUEL FESTUS SHIPANGA ACCUSED NO. 1


PAULUS KAMATI ACCUSED N0. 2




CORAM: USIKU, AJ




Heard on: 2010.06.10 – 14; 2010.06.16


Delivered on: 2010.06.17



JUDGMENT

TRIAL-WITHIN-A-TRIAL


USIKU, AJ:

The background of the case:


[1] On or about the 8th July 2007, the deceased one Johannes Fellinger was killed in the Khomas Hochland area, whereafter two male persons were arrested and charged with a number of crimes.

[2] These two male persons are now accused persons before this court.


[3] When their trial commenced on the 3rd of June 2010, both accused persons pleaded not guilty to all the charges. The trial then commenced.


[4] Several state witnesses were called to testify in the course of the proceedings.


[5] Witnesses testified about what had happened, amongst them was the investigating officer, Sgt Hilundwa

It is important to note that the two accused persons were each represented by attorneys instructed by the Directorate of Legal Aid who each confirmed that the pleas were in accordance with accused’s instructions. No plea explanations in respect of each accused were offered and no admissions were made in terms of section 220 of the Criminal Procedure Act, Act 51 of 1977 as amended.


[6] About 20 state witnesses testified for the state, several exhibits both documentary and specific items were also handed in, numbered and identified by several witnesses.


[7] A trial-within-a-trial in respect of the admissibility of the pointings-out and the statement/confession were conducted during the course of the main trial. That was specifically in respect of accused 2 whereby the defence counsel for accused 1 had to be excused from the proceedings that ensued.

[8] At this point in time the court does not intend to refer to the evidence of all the state witnesses in detail.


However, it is common cause and I shall attempt hereinafter to summarise some of the events of that day and thereafter with regard to the evidence that were not in dispute in order to give a short background picture of what transpired.


[9] The evidence that are in dispute will be analysed at a later stage in more detail.


[10] The background based on undisputed evidence are as hereunder:-


10.1 That the deceased and his wife had arrived in Namibia on the 8th of July 2007, from Germany as visitors.


10.2 That upon their arrival in Windhoek, they hired a pick-up motor vehicle in order to travel within the country whereby they drove in the direction of the Khomas Hochland.


10.3 That upon their arrival at or near the Francious Feste Stone Ruins in the district of Windhoek, they disembarked from their motor vehicle and were attacked by unknown persons, who were armed with fire-rams and ammunition.


10.4 That the deceased was shot at least one, in the head and died on the scene due to gun shot injuries.


10.5 That the deceased’s wife was assaulted by the attackers, whereafter certain items were stolen from them.


10.6 That the attackers thereafter dumped the deceased’s body in the bushes and forced the deceased’s wife into the motor vehicle whereafter they drove away against her will.


10.7 That the motor vehicle in question was later involved in an accident and was found abandoned on the road as the attackers fled on foot.


10.8 That police were informed and visited the scene on the night of the incident.


10.9 That the vehicle and the body of the deceased were recovered.


10.10 Photos of the scene were taken by police from the scene of crime unit and the deceased’s body removed to the police mortuary for a post-mortem examination.


10.11 That accused 1 was the first to be arrested in connection with the crimes.

10.12 Accused 2 was also later on arrested for the same crimes as further investigations continued.


[11] Regarding the photos taken on the scene.

Photos 1 – 5 indicates the PM 370/07 done on the body of the deceased at the police mortuary in Windhoek. All these were taken on the 9th of July 2007, and compiled on the 13 July 2007 at the scene of crime unit.


[12] A sketch plan with a key to it was also drawn on the 31 July 2008 indicating several points, with measurements from points A – F with a distance of 54 km, and from point F – N a distance of 58 km. These photos were taken on the 8 July 2007.

Points A – E were indicated by detective Inspector Louw of the Windhoek Criminal Investigation department, all these photos represents Ex “M” for easy reference.


[13] I however do not find it necessary to deal with each of the photos contained in Ex “M” as such.


[14] A post-mortem examination was conducted on the body of the deceased. The post-mortem report was also handed in without any objection from the defence.


[15] I also do not intend to go into the detailed report as indicated in the post-mortem report.

[16] As mentioned before, a trial-within-a-trial was held in the main trial, that being in respect of the pointing-out done allegedly by accused 2 to Chief Inspector Van Zyl of the Namibian Police, as well as a confession to Chief Inspector Brune, who has since retired from the force.

The purpose of this trial-within-a-trial was meant to establish whether the pointings out and confessions were freely and voluntarily made and whether the evidence in respect thereof are admissible.


[17] Accused 2 specifically objected to the admissibility of the pointings-out by him to Inspector Van Zyl on the basis that such pointings-out were not freely and voluntarily made, because he was assaulted or forced, and also that his right to legal representation were not fully or properly explained to him.

Through his attorney, accused 2 particularly attacked the manner in which his right to legal representation during the pointings out were done.

A trial-within-a-trial was then conducted whereby the state called Inspector Van Zyl to testify as well as Ester Nambahu from the Complains and Discipline department.


[18] That Inspector Van Zyl had influenced the accused persons into giving a response that he did not want to give. The question that comes to mind is why the witness would want a specific response from the accused person whom he only met for the first time when he was brought to him for the purposes of the pointings-out of the scene. Moreover the witness was an independent witness who had not been involved in the investigations of the case, nor had he been to his alleged scene of the crime.


[19] With regard to the witness knowledge that accused had already applied for legal aid, at the time he was brought to him, there was nothing that prevented accused to retaliate his position regarding legal aid. It is a common practise whereby an accused may decline to be represented by a lawyer at the early stages of his/her arrest. In fact, the witness had explained the right of the accused to be legally represented, there and then before he went on to do the pointings-out.


[20] Accused was in his sober senses, according to the witness, and did understand his rights as explained to him by the witness. The interpreter that assisted the witness with the interpretation of the proceeding also did confirm this fact.

From the evidence presented before court, it was the accused who had offered to the pointings-out, and was then taken by Inspector Unandapo, to Inspector Van Zyl, as Unandapo had been involved in the investigation of the case, and had realized that it would not be proper for him to go on with the pointings-out. In my view that clearly show his impartiality in that whole exercise.


[21] At the same time accused had made a request to speak to Inspector Unandapo through the investigating officer, Sgt Hilundwa, who according to his evidence had there and then, informed Inspector Unandapo, who in turn contacted Inspector Brune who took the accused’s statement/confession, again after he had informed accused of his legal representation, including the right to legal aid.


[22] Contrary to the denial by the defence that witness Ester Nambahu had failed to corroborate Inspector Van Zyl, she did testify that accused’s rights were explained to him and she interpreted to the accused to the best of her ability. In her view, accused understood. It might be so that the witness may have made some minor errors regarding the presence of a cameraman, however that cannot make this court to reject her evidence in toto.


[23] Regarding the defence’s allegations that accused was repeatedly assaulted, and was taken to Hosea Kutako police station and then to Dordabis in order to influence him to do the pointings-out as well as the confession or the giving of the statement to Inspector Brune, which came about as a result of undue influence by the police. Evidence was presented before court, which clearly shows that accused was only taken to Dordabis on the 21 September, which means after he had already done the pointings-out and confession on the 17 and 18 of September 2007 respectively.


[24] One must also consider that police may exercise their discretion when it comes to issues of logistics.


[25] The court is satisfied that the accused’s right in respect of legal representation during the pointings-out were explained to him, that he clearly understood it and preferred not to have a lawyer to represent him at that stage.


[26] Indeed the court is alive to what was said previously in other decisions, namely that it is entitled to reverse its ruling made in a trial-within-a-trial if other evidence at a later stage might indicate that the ruling was wrong.


[27] Throughout the trial-within-a-trial there was no evidence that accused had failed to co-operate with the police. In fact none of the witnesses testified to that effect.


[28] In the light of the evidence I am satisfied that both the pointings-out and the statement/confession are ruled admissible as evidence before this court.






____________

USIKU, AJ





ON BEHALF OF THE STATE: MS NDLOVU



Instructed by: OFFICE OF THE PROSECUTOR-GENERAL




ON BEHALF OF ACCUSED NO. 2 MR KWALA



Instructed by: DIRECTORATE OF LEGAL AID





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