Thomas v S (CC 5/2019) [2020] NAHCNLD 125 (07 September 2020);

Introduction

[1]        The accused in this case is indicted for murder read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003. The accused pleaded not guilty to the charge and submitted no statement in terms of section 115 of the Criminal Procedure Act, Act 51 of 1977 (herein the Criminal Procedure Act). The State herein is represented by Ms Nghiyoonanye and the Accused is represented by Ms Boois.

[2]        The brief facts per the indictment are that upon or about the 13^th day of September 2017, and at or near Omanyenye Cuca Shops, Okamule Village in the district of Oshakati, the accused did unlawfully and intentionally kill Ahas Nampila an adult male person by stabbing him with an Okapi knife several times on the body.

[3]        The State opened its case and led the evidence of seven witnesses and produced documentary evidence. After the closing of the State’s case, the accused brought an application for discharge in terms of section 174 of the Criminal Procedure Act. The State opposed the application.

[4]        Section 174 of the Criminal Procedure Act reads:

‘174 Accused may be discharged at the close of case for prosecution.

If, at the close of the case for the prosecution at any trial, the Court is of the opinion that there is no evidence that the accused committed the offence referred to in the charge or any offence of which he may be convicted on the charge, it may return a verdict of not guilty.’ Own emphasis

[5]        The words ‘no evidence’ has been subjected to several interpretations and covers a great deal of our law reports. Suffice to state that the leading interpretation of ‘no evidence’ was set out in S v Nakale and Others 2006 (2) NR 455 (HC), where it was said that no evidence means no evidence upon which a reasonable court acting carefully may convict.

[6]        There is no qualm that, at this stage of the closure of the State’s case, the State bears the burden of making out a prima facie case against the accused on which a reasonable court acting carefully might convict. The State can therefore not lead substandard evidence and remain hopeful that the accused will plug the holes in its case by incriminating himself.[1]

[7]        In an attempt to prove its case the State called seven witnesses and in the assessment of the State’s evidence, this court does not intend to canvass all the witnesses’ evidence, suffice to highlight what is material and necessary for the determination of whether there is evidence on which a court may convict. 

[8]        The first witness to testify for the State was Abel Petrus. He testified, that around 18h00 on 13 September 2017, he, the accused and the deceased arrived at Omanyenye Cucashop. They covered and bought a bottle of tassenberg to drink. The deceased took the unopened bottle of tassenberg and walked away with it. A fight broke out for the first time and in that process the deceased then scratched the accused with the knife on his hand. However Abel managed to separate the accused and the deceased person and took the bottle of tussenberg back inside the cuca shop. He opened it and started drinking but accused did not drink from the bottle.

[9]        While they were still inside the cuca shop, accused left and went outside and later the deceased also went outside. A second fight broke out and he saw that accused and the deceased wrestled until they fell to the ground. He testified that accused managed to overpower the deceased and put him underneath and at this point accused realized that he is bleeding. The accused grabbed the knife from the deceased and started stabbing the deceased while sitting on the deceased’s stomach. He stabbed the deceased several times while saying that “Ahas I am stabbing you”. Abel recalls seeing the accused stabbing the deceased at least 4 times.

[10]      Hilya Erastus was the next State’s witness to take the stand. She testified that she was sitting outside the cuca shop. She saw the initial altercation between the accused and the deceased when the deceased took a knife, “tried the accused” and cut him on the hand. She was still sitting outside the shebeen when the deceased came behind the cucashop and the accused followed him. She also saw when the accused confronted the deceased, asking him that: “do you know that you have hurt my hand with your knife and I am bleeding?” She saw that the accused and the deceased when they started fighting. The deceased had a knife and the accused was fighting with bare hands. She also saw the deceased using that knife to stab the accused in the stomach.

[11]      Ms Erastus testified that she saw that the accused overpowered the deceased, put him underneath, removed the knife from the deceased, sat on the deceased stomach and started stabbing the deceased with that knife more than twice.

[12]     Dr Andrew and Dr Ricardo both testified that there were injuries sustained by both the deceased and the accused. According to Doctor Andrew, he had examined the accused person on 13 September 2017 and found he had very serious injuries. He further testified that accused had to undergo an operation known as the Hartman Operation. He observed defensive wounds on the accused and the wound to the stomach of the accused. He confirms that he inserted a chest drain in order to drain blood from the chest cavity of the deceased. While Doctor Ricardo on the other hand testified that all injuries he observed on the body of the deceased save for the ‘thoraccocentesis’ were inflicted by the accused and the cause of death as per Exhibit J2 is “multiple stab wounds”. Doctor Ricardo however could not deny that the wounds the accused sustained were serious leading to his admission in hospital for 13 days.

[13]      If my reading and understanding of Ms. Boois’s application in terms of section 174 is correct, to which I strongly believe it is, she is relying on self-defense and that the actions taken by the accused where necessary to avert the imminent danger the deceased posed at that moment. She further states that a charge of murder cannot stand without the element of unlawfulness, a person cannot be convicted on a charge of murder if the element of unlawfulness has not been successfully satisfied. She submits that the State failed to establish that the accused had the necessary intention to kill the deceased. The court does not find this submission compelling.

[14]      Ms Nghiyoonanye rightfully submits that a court acting carefully cannot ignore the glaring evidence without requiring the accused to confirm his so-called self defence under oath. Furthermore a careful consideration of the evidence must also take into account all forms of legal intention as well as competent verdicts. The court’s focus should not be on the character of the deceased as suggested in the accused’s application. This court should focus on the conduct of the accused, because it is the accused who is indicted in this court.

[15]      The inquiry was not, and has never been whether the evidence was cogent, plausible or constituted proof of guilt beyond a reasonable doubt. The court in S v Teek (SA 44/2008) [2009] NASC 5 (28 April 2009) in para 7 also re-affirmed the generally accepted view that, although credibility is a factor that may be considered during the section 174 application, it plays a very limited role. It is only if the evidence is of such poor quality that, in the court’s opinion, no reasonable court could accept it as reliable, that the application for discharge will succeed.

[16]      In determining whether the State led evidence on which a reasonable court acting carefully may convict, this court is of the considered view that the evidence so far adduced by the state is not of such poor quality that no reasonable court may convict. Unless contradicted, it establishes sufficient prima facie evidence to place the accused on his defence.

[17]      In the premises the application for discharge in terms of section 174 stands to be dismissed.

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J Salionga

                                                                                                                             Judge