Paiya v S (CA 37 of 2009) [2010] NAHC 56 (28 July 2010);
CASE
NO.: CA 37/2009
IN
THE HIGH COURT OF NAMIBIA
In
the matter between:
BRUNO
DA SILVA PAIYA APPELLANT
and
THE
STATE RESPONDENT
CORAM:
GEIER,
AJ et
UEITELE, AJ
Heard
on: 14
June 2010
Delivered
on: 28
July 2010
APPEAL
JUDGMENT
UEITELE,
AJ:
A. INTRODUCTION
[1] The
appellant was charged with three different counts, convicted on all
three the different counts and sentenced. He now appeals against the
conviction in respect of counts 1 & 2, and against the sentence
in respect of count 3.
[2] The
charge-sheet alleged that:
Count
1
“...upon
or about the 24th
day of February 2009, and at or near Swakopmund in the district of
Swakopmund the accused did wrongfully, unlawfully and intentionally
assault Ileni S Gebhardt by beating the complainant with clenched
fist several times, especially in the facial area, slapping her
several times and kicking her several times with intent to cause the
said Ileni S Gebhardt with whom the accused was in a domestic
relationship as defined in section 1 of Act 4 of 2003, grievous
bodily harm.”
Count
2
“...upon
or about the 24th
day of February 2009, and at or near Swakopmund in the district of
Swakopmund the accused did wrongfully, unlawfully and intentionally
assault Ileni S Gebhardt by threatening then and thee (sic) to kill
the complainant, thereby causing the said Ileni S Gebhardt with whom
the accused was in a domestic relationship as defined in section 1 of
Act 4 of 2003 to believe that the said accused intended and had the
means forthwith to carry out this threat”
Count
3
“...upon
or about the 24th
day of February 2009, and at or near Swakopmund in the district of
Swakopmund the accused did wrongfully, unlawfully and maliciously
break and/or damage 1x Nokia 6200 Cellphone valued at N$3 500-00 by
throwing it against the wall, the property or in the lawful
possession of Ileni S Gebhardt with the intent to injure the said
Ileni S Gebhardt in his/her property and thus the accused is guilty
of the crime of Malicious Injury to Property.”
[3] When
the appellant appeared in the Court a
quo, the
three charges were put to him. The appellant then pleaded guilty to
all three the counts. Upon his plea of guilt the appellant was then
questioned in terms of section 112(1)(b) of the Criminal Procedure
Act, 1977 (51 of 1977). After the question and answer session the
appellant was convicted on all three counts and sentenced as follows:
“Count
1&2 are taken together for sentencing ...accused sentenced to 24
(Twenty Four) months imprisonment of which 6 (six) months is
suspended for a period of 4 years ... Count 3 ... accused is sentence
to a fine of N$3 000 ...”
[4] The
appellant now appeals against the conviction in respect of count 1 &
2 and against the sentence in respect of count 3. The grounds of
appeal are set out in the notice of appeal and the grounds of appeal
are that:
“1.1 The
learned Magistrate erred in convicting the appellant in respect of
count 1 for the following reasons:-
The
appellant did not admit all the requisite elements of the charge
of assault with intent to do grievous bodily harm, alternatively
the admissions made by the appellant do not amount to unequivocal
admission of all elements of assault with intent to do grievous
bodily harm.”
1.2 The
learned Magistrate erred in law in convicting the appellant on a
charge of assault by threat read
with the provisions of the Domestic Violence Act, 2003, (Act No. 4 of
2003) for the following reasons:
1.2.1 The
conviction of the appellant on the aforesaid count given the
conviction in respect of count 1 amounts to duplication of conviction
and/or charge.
AD
SENTENCE
2.1 The
learned Magistrate erred in law and on facts in sentencing the
appellant in respect of count 1, 2 and 3 in that –
2.2.1 The
learned Magistrate overemphasised (sic) the seriousness of the
offence at the expense of the circumstances of the offence and the
mitigating circumstances of the appellant.
2.2 The
sentence imposed is wholly inappropriate and harsh in the
circumstances of the matter.”
B. THE
ISSUE: TO BE DECIDED
[5] We
are thus called upon to answer the following questions:
Could the Magistrate, on the
answers given to her question in terms of section 112(1)(b) of Act
51 of 1977, have been satisfied that all the elements of the offence
of assault G.B.H have been covered?
Was there an improper
duplication of charges and conviction in respect of count 1 & 2?
Is the sentence imposed on the
appellant inappropriate?
[6] In
answering the questions posed above we will first set out what
section 112(1)(b) of Act 51 of 1977 provides, the elements of the
crime of assault “GBH”, the legal principles governing
duplication of charges and the legal principles governing the
approach of an appeal court to a sentence imposed by a trial court.
After having set out the legal principles we will apply those
principles to the facts as discerned from the record.
C. THE
LAW
[7] Section
112(1)(b) of the Criminal Procedure Act, 1977 provides that:
“(1) Where
an accused at a summary trial in any court pleads guilty to the
offence charged ...
(b) the
... magistrate shall
... question the accused with reference to the alleged facts of the
case in order to ascertain whether he or she admits the allegation in
the charge to which he has pleaded guilty, convict the accused on his
plea of guilty.” [Our
emphasis]
[8] Assault
with intent to do grievous bodily harm, is described as assault which
involves serious physical injury to the victim. The elements of the
crime are (1)
assault; (2) grievous bodily harm; and intent.1
[9] “It
is not necessary that x should actually cause grievous bodily harm:
it is enough that he intends
to cause it, for the crime is not, “causing grievous bodily
harm, it is assault with intent to do grievous bodily harm.”
If x intends a grievous injury, but caused a slight one or not at
all, he may accordingly be guilty of assault with intend to do
grievous bodily harm. Of course where a slight injury is caused the
court may be unwilling to accept that x really did intend a severe
one but that is a matter of evidence not of substantive law.”2
[10] As far as the question of
what is ‘grievous bodily harm’ it was stated as follows:
“...however
on one expresses it,
it is at least clear that there be an intent to do more than
inflicting the casual and comparative insignificant and superficial
injuries which ordinarily follows upon assault. There must be proof
of intent to injure and to injure in a serious respect.”3
[11] The
approach to be adopted by the Court when determining whether a
duplication of conviction has taken place was outlined by Hannah, J,
when he said:
“...
when determining whether a duplication of conviction has taken place.
There is no single test ... The tests which have been developed are
mere practical guidelines in the nature of question which may be
asked by the Court in order to establish whether a duplicate has
occurred or not ... The two most commonly used tests
are the single evidence test and the same evidence test. Where a
person commits two acts of which each standing alone, would be
criminal, but does so with a single intent and both acts are
necessary to carry out that intent, then he ought only to be indicted
for, or convicted of, one offence because the two acts constitute on
criminal transaction. This is the single intent test. If the
evidence requisite to prove one criminal act necessarily involves
proof of another criminal act, both acts are to be considered as one
transaction for the purpose of a criminal transaction. But if the
evidence necessary to prove one criminal act is complete without the
other criminal act being brought into the matter, the two acts are
separate criminal offences ...”4
D. APPLICATION
OF THE LAW TO THE FACTS
[12] Mr
Narib who appears amicus
curiae
for the appellant submits that the conviction of the appellant should
not be allowed to stand, because, so he argued, “the
appellant did not admit the facts which would indicate to the Court
that he is guilty of assault with intent to do grievous bodily harm.”
We
pause here to record the Court’s gratitude for the industry of
Mr Narib in preparing and presenting extensive arguments in support
of the appeal.
[13] Mr
Narib criticises the finding of the magistrate as follows: “...
from the exchanges between the learned Magistrate and the appellant
... the closest the Court came to enquire about the requisite
intention with which the assault was carried out is the question?
“Did you know to assault a person in such a way can hurt such a
person seriously?”
[14] To
be able to appreciate the merits or demerits of Mr Narib’s
criticism we will turn to what happened in Court after the appellant
pleaded guilty to the charges put to him.
[15] The
record of proceeding shows that after the appellant pleaded guilty
the Court applied Section 112(1)(b) of Act 51 of 1977.
“Count
1
Q: Did
you on 24 February 2009 at Swakopmund assault Ileni Gebhardt?
A: Yes
Q: How
did you assault her?
A: I
did assault her several times with clinched first in the face.
Q: Did
she sustain injuries:
A: Yes
Q: Did
you know to assault a person in such a way you can hurt such person
seriously?
A: Yes
Q: Did
you have right to assault her?
A: No
Q: Did
you know to assault a person without reason is unlawful and
punishable?
A: Yes
Q: Why
did you assault her?
A: We
had a simple argument. We just got married on 9 January 2009. We
had argument about what married woman must do and not do. Then she
started crying. I asked her why she did cry. She then went to the
bathroom and lock the door. I than forced the door open because I
thought she will do something to herself. Then she took her handbag
and her kid whom stays with us and wanted to leave. I got very angry
and hit her. Know it was not necessary to assault her.”5
[16] The record records that
when the magistrate convicted the appellant she did so in terms of
section 112(1)(b) of the Criminal Procedure Act, 1977. It is obvious
that that section allows an accused person who has pleaded guilty to
an offence to be convicted of it without evidence. For the court to
convict, it must be satisfied that the accused is indeed guilty of
the offence with which he is charged.
[17] It is
obvious that the satisfaction of the court is not derived from
evidence (as the subsection disposes with the need to lead evidence)
nor from the plea tendered by the accused person (because the
subsection compels the court to go beyond the plea and ask prescribed
questions). The answers given to the questions asked, standing
entirely on their own is the crucial information which must determine
the satisfaction of the Court. It has been held that “Before,
however, they [i.e. the answers] are capable of satisfying the Court
that the accused is actually guilty of the offence to which he has
pleaded guilty they must at least cover all the essential elements of
the offence which the State would otherwise have been required to
prove. If any one of these is not admitted the court cannot be
satisfied of the accused’s guilt. It may not convict him in
terms of section 112(1)(b) on his plea of guilt.”6
[18] We
have in paragraph 8 above set out the elements of the crime of
assault with intent to do grievous bodily harm and those elements are
grievous bodily harm, assault and intent. It is quite clear from the
record of proceedings that the question which relates to the injuries
was simply whether the complainant sustained injuries. No further
probe was made as to the nature, degree and extent of injuries
sustained. We are left with no option but to conclude that the
appellant did not admit that he caused grievous bodily harm to the
complainant. We, however, pause here and observe that the fact that
the appellant did not admit that he caused the complainant grievous
bodily harm is not helpful to the appellant as “It
is not necessary that x should actually cause grievous bodily harm:
it is enough that he intends
to cause it, for the crime is not, ‘causing grievous bodily
harm’, it is assault with intent to do grievous bodily harm.”
[19] With
regard to the element of intention, Mr Narib argued that: “...
the closest the Court
[i.e. the Court a
qou]
came to enquire about the requisite intention with which the assault
was carried out it is the question: “Did you know to assault a
person in such a way you can hurt such a person serious? ... the
answer ‘Yes' to this question is not sufficient to inform the
Court that the accused actually admits the element of intention.”
[20] The
Magistrate provided some reasons for her finding. She gave her
reasons
as follows: “The
appellant pleaded guilty to this charge ... He admitted he knew he
did wrong by assaulting her; He admitted he knew he could assault
her seriously by hitting her the way he did.” ...
Appellant
did admit all the requisite element to a conviction (sic) of assault
with intend to do grievous bodily harm.”7
[21] From
the reasons advanced by the Magistrate, it is not evident that she
could be satisfied that the appellant actually had the intention to
cause the complainant serious bodily injury. I thus agree with Mr
Narib that the question posed by the Magistrate did not go far enough
to probe the intention of the appellant and the Court could not on
the answer provided by the appellant be satisfied that the appellant
had a direct intention to cause grievous bodily harm to the
complainant.
[22] The
matter does, however, not end there. It is trite law that intention
takes various forms, namely dolus
directus, dolus indirectus and
dolus
eventualis. Having
reached the conclusion that the question posed by the Magistrate did
not elicit sufficient information on which the Magistrate could be
satisfied that the appellant had the necessary dolus
directus,
We ask the question, whether the “question and answer” do
point to another form of intention, in particular intention in the
form of dolus
eventualis?
[23] It is
trite that, intention, in the form of dolus
eventualis exists
where the accused does not “mean” to bring about the
unlawful circumstances or to cause the unlawful consequences which
follow from his or her conduct, but foresees the possibility of the
circumstances existing or the consequences ensuing and proceeds with
his or her conduct.8
[24] In the
case of S
v Goeieman9
which was a review matter before Hannah J with Frank J (as he then
was) concurring, the accused was also charged with assault to do
grievous bodily harm. He was questioned in terms of section
112(1)(b) and thereafter convicted as charged based on the answer
that he gave.
[25] The
questions that the Magistrate asked were inter alia “With
what did you assault her?” The
answer was “With
a walking stick.” The
follow-up question was: “How
many times did you beat her and where on the body?” The
answer was “Three
times on the legs.” And
another question was: “Did
she suffer pain and loss of blood?” The
answer to that question was. “I
cannot say.”
[26] The
conviction Goeieman
was
set aside. The Court, per Hannah J said: “What
the magistrate should have done was to ask the accused whether he
had foreseen the possibility of the complainant sustaining serious
injury as a result of the assault.
In the absence of such a question the intention of the accused had
to be gathered or inferred from the circumstances of the assault as
admitted by the accused.”10
{Our
Emphasis}
[27] The
question in the present case is thus whether one can indubitably
infer or gather such
intention of the appellant from the circumstances of the assault as
admitted by the appellant. What we gather from the record is that
the appellant assaulted the complainant several times with clinched
fist in the face. The record does not reveal the degree of force
used, the part of the face at which the assault was directed and the
injuries actually sustained by the complainant. We pause here to
state that it must be kept in mind that the court cannot at this
stage, and for purposes of determining this issue, have regard to the
medical evidence, which showed the severity of the injuries and the
serious nature of the assault, which evidence, for inexplicable
reasons was only led at the post- conviction stage.
[28] The
record, however, shows that the appellant answered that he knew that
“to
assault a person in such a way you can hurt a person seriously...?”
But
does this eliminate the doubt that is created by the scarcity of
information with regard to the circumstances of the assault? We
think so. We say so because if the appellant knew that to assault
the complainant in the manner in which he assaulted her would cause
her serious injury and despite that knowledge he proceeded to assault
her, the only inference we draw from the appellant’s knowledge
is that the appellant foresaw the possibility of him causing the
complainant grievous bodily injury and despite that foreseability he
proceeded to assault the complainant. We are therefore satisfied
that the element of intent was established.
[29] We
have difficulty with the magistrate’s conviction of the
appellant ‘as charged’? If one has regard to the charge,
count 1 (page 6) of the record it is clear that the appellant was
charged with “...assaulting
Ileni Gebhardt by beating the complainant with clinched fists several
times, slapping her several times and kicking her several times.”
No
mention was made by the appellant of slapping or kicking her several
times as alleged by the prosecution in the charge. It thus follows
that the conviction cannot be ‘as charged’ but of assault
with intent to do grievous bodily harm.
AD COUNT 2
[30]
With regard to count 2 the grounds of appeal as set out in the
Notice of Appeal are that:
“1.2 The
learned Magistrate erred in law in convicting the appellant on a
charge of assault by threat read with the provisions of the Domestic
Violence Act, 4 of 2003 for the following reasons: -
1.2.1 The
conviction of the appellant on the aforesaid count given the
conviction in respect of count 1 amounts to duplication of conviction
and/or charge.”
[31] Mr
Narib in argument elaborated this ground of appeal as follows: “It
is clear from the record that he said “I will kill you”
was uttered in the course of the assault perpetrated on the
complainant – that was one continuous criminal transaction, or
assault was carried out with a single intent.” He
referred us to the cases of: S
v Nakale & Others (No.
1)11
and S
v Seibeb; S v Eixab.12
[32] Mr.
Truter for the respondent initially argued that it is not clear from
the record that the words were uttered in the course of the assault.
He says that, “that
is at most an assumption.”
[33]
Mr Truter may be correct in his submission, but he will only be
correct in so far as one is limited to the answer produced to a
question posed in terms of section 112(1)(b). Surely the court is
not restrained from drawing the inference that the words were uttered
during the assault perpetrated on the complainant and for which
assault the appellant was charged under count 1. We are thus
satisfied that the words “I
will kill you” were
uttered in the cause of the assault upon the complainant.
[34] Mr
Truter conceded that “...at
whatever stage these words were uttered, it was factually very
closely related to the actual assault the complainant suffered...”.
He
also conceded (the concession was correctly made in our view) that
this ground of appeal should be upheld. In the light of this
concession, and taking cognisance of the guidelines enunciated by
Hannah J, in the matter of Seibeb
and Another; S v Eixab.13
we have come to the conclusion that the appellant committed the
assault by threat and the physical assault on the complainant with a
single intent. It thus follows that the conviction of the appellant
in respect of count 2 amounts to an unlawful duplication of
convictions and such conviction is accordingly set aside.
[35] Mr Truter who appeared
for the Respondent (the state) had drawn our attention to section 312
of the Criminal Procedure Act, 1977 (Act 51 of 1977) which provides
as follows:
“312. Review
or appeal and failure to comply with subsection (1)(b) or (2) of
section 112.
Where
a conviction and sentence under section 112 are set aside on review
or appeal on the grounds that any provision of subsection (1)(b) or
subsection (2) of that section was not complied with, or on the
ground that the provisions of section 113 should have been applied,
the court in question shall
remit the case to the court by which the sentence was imposed and
direct that court to comply with the provisions in question or to
act in terms of section 113 as the case may be, and requested us to
act in terms of that section (i.e. Section 312) and to refer the
matter back to the magistrate for her to ask the necessary questions
to satisfy her that the accused is in fact guilty.” {
Our Emphasis}
We
will return to this request after we have dealt with the sentence
imposed by the Magistrate.
AD THE SENTENCE
[36] The ground of appeal with
regard to sentencing was set out as follows:
“2.1.1 The
learned Magistrate overemphasised the seriousness of the offence at
the expense of the circumstances of the offence and the mitigating
circumstances of the appellant.
2.2 The
sentence imposed is wholly inappropriate and harsh in the
circumstances of the matter.”
[37] Mr
Narib augmented this ground of appeal by arguing that an effective
“...
imprisonment of 18 months is disproportionate in the circumstances.
Even though the complainant testified under oath, it is clear that
the accused did not use any weapon to assault the complainant.
Accused used his bare hands to assault the complainant.” He
(Mr Narib) contends that imprisonment of less than a year would have
been appropriate to deter the appellant from carrying out such an
assault.
[38] Before
we consider the submission by Mr Narib, we will brief restate this
Court’s approach to an appeal against a sentence imposed by the
trial Court. This Court has on more than one occasion stated that
the sentence which the trial Court imposes on an accused is in the
discretion of such trial Court. S
v Tjiho14
S
v Kauzu15;
S v Ndikwetepo16.
[39] An
appeal Court can only interfere with the discretion exercised by the
trial Court in certain limited instances. The reason being that the
discretion to be exercised is that of the trial judge or magistrate
and not the appeal Court and it is therefore not an issue whether the
sentence is right or wrong. The question is whether the discretion
was judicially exercised by the trial judge or magistrate: See S
v Vanisevic and Another17;
S
v Ndikwetepo18.
[40] The
grounds on which a court of appeal is entitled to interfere with the
discretion of a trial court were set out as follows in the matter of
S
v Tjiho. Levy
J said: “...
the appeal court is entitled to interfere with a sentence if:
(i) the
trial court misdirected itself on the facts or on the law;
(ii) an
irregularity which was material occurred during the sentence
proceedings;
(iii) the
trial court failed to take into account material facts or
overemphasised the importance of other facts;
(iv) the
sentence imposed is startlingly inappropriate, induces a sense of
shock and there is a striking disparity between the sentence imposed
by the trial court and that which would have been imposed by the
court of appeal.”
[41] We
now turn to the argument by Mr Narib. All that Mr Narib submitted is
that an effective sentence of 18 months imprisonment is
disproportionate in the light of the fact that the appellant did not
use any weapon to assault the complainant, he used his bare hands to
assault the complainant.
[42] In
reply to that submission by Mr Narib, we echo the words of Levy J,
when he said: “Marriage,
whether blessed in a church or concluded before a magistrate or
concluded and blessed according to tribal custom or simply a de facto
living together of a couple as husband and wife, creates a special
relationship. The parties fend for each other look after each other
and protect each other. Assaults, beatings (and
we add irrespective of whether weapons or bare hands are used)
killings and abuse should have absolutely no place in such a
relationship.” Our
legislature recognised this fact and thus enacted the Combating of
Domestic Violence Act, 2003.
[43] Mr
Narib has not pointed out any misdirection on the part of the
magistrate. We also do not understand Mr Narib to argue that the
sentence imposed by the magistrate is startlingly inappropriate or
that it induces a sense of shock or that the sentence is one which
this Court would not have imposed if it had sat in first instance.
[44] The sentence imposed by
the magistrate is certainly robust but bearing in mind that:
the
appellant and the complainant were in a special relationship;
the
assaults on the complainant caused her a swollen and blue eye,
damaged the nerve at the end of the complainant’s right eye;
the
assault on the complainant will require her to undergo an operation;
the
assault on the complainant caused her bruises on the inside and
outside of her right thigh and that her right hand is painful;
the
assault was perpetrated in the presence of the complainant’s
minor
daughter of 4 years, and the assault took
the form of strangulation, we can find no reason to interfere with
the sentence imposed by the Court a
quo.
[45] We
now return to the request by Mr Truter for the respondent, that we,
in terms of section 312, refer the matter back to the Magistrate for
her to ask the necessary questions. Mr Truter referred us to no less
than nine cases where on review, this Court referred the matters back
to the respective magistrates.
[46] We are
mindful of the fact that there is certain virtue in uniformity, but
this still does not detract from the fact that each case must be
dealt with according to its peculiar circumstances.
[47] First
it is true that section 312 of the Criminal Procedure Act, 1977 as
quoted above, does in peremptory terms direct
that where an appeal court finds (on appeal or review) that the trial
court did not fully comply with the provisions of subsection (1)(b)
of section 112, it shall remit the case to the court by which the
sentence was imposed. It is, however, equally true that section 312
makes that direction in respect of situations where the appeal court
sets aside both the conviction and the sentence. In casu
we do not intend to interfere with the conviction on count 1 and the
sentence imposed by the court a
quo.
[48] In
the premises the following order is made:
The appeal
against the conviction of assault with intent to do grievous bodily
harm is dismissed.
The appeal against the
conviction on count 2 succeeds and the conviction on that count is
set aside.
The appeal against the
sentence is dismissed.
__________________
UEITELE,
AJ
I agree
___________________
GEIER,
AJ
ON BEHALF
OF THE APPELLANT: Mr
Narib
INSTRUCTED
BY:
Amicus
Curiae
ON
BEHALF OF THE RESPONDENT: Mr
Truter
INSTRUCTED
BY: OFFICE OF THE PROSECUTOR-GENERAL